* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JON W. SHAFFER,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-5174 (D.C. No. 96-CV-586-J) (N.D. Okla.)

ORDER AND JUDGMENT **

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Jon W. Shaffer appeals from an order of the district court affirming the Commissioner’s determination that he is not entitled to disability benefits. We affirm. We review the Commissioner’s decision to determine whether his factual findings were supported by substantial evidence in light of the entire record and to determine whether he applied the correct legal s tandards. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted). In the course of our review, we may “neither reweigh the evidence no r substitute our judgment for that of the agency.” Casias v. Secretary of Health& Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Mr. Shaffer alleged disability due to the effects o f a back injury and arthritis affecting multiple joints. The administr ative law judge (ALJ) determined that Mr. Shaffer was not disabled at step five of the five-step sequential process,

seeWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), finding th at he could perform light work with only temperature and humidity restrictions.-3-

On appeal, Mr. Shaffer argues the ALJ erred in find ing that Mr. Shaffer could do the prolonged standing necessary to perform light work and he failed to properly link his credibility findings to Mr. Shaff er’s complaints of pain. He also asserts the ALJ erroneously failed to shift the bur den of proof to the Commissioner before he made the residual functional capacity (RFC) determination. Light work requires that the claimant be able to do a “good deal of walking or standing or . . . sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). Mr. Sh affer has been diagnosed with degenerative joint disease in his knees. He testif ied that he drives 200 miles a week to run errands, although he is house bound whe n the temperature gets below forty degrees. He can walk under a mile or for abo ut thirty minutes before his knees swell. He does housework, some gardening, an d can carry three one-liter bottles of soda. The medical evidence shows that h e has normal range of motion and gait. Mr. Shaffer argues that even if the ALJ is correct that he was not disabled in 1992 and 1993, by 1994, his condition had deteri orated due to marked arthritic changes in his knees. The record shows that, in 19 94, various physicians noted Mr. Shaffer had some osteostatic changes, his knees were slightly tender, and he had marked creptitus. No physician has placed any restrictions on Mr. Shaffer’s-4-

ability to stand. Indeed, one physician noted thatMr. Shaffer was “experiencing satisfactory relief of his symptoms,” App. Vol. II at 267; another suggested that he begin a walking program, id. at 259; and a third reported that Mr. Shaffer stated that he “occasionally” has “continual pain” in his knee which is affected by stair climbing, id. at 268. The vocational expert opined that jobs ex ist in the light work category which Mr. Shaffer can perform w ith his limitations. The record supports the ALJ’s determination that Mr. Sh affer can perform light work. Mr. Shaffer asserts the ALJ failed to make the prop er linkage between his credibility findings and Mr. Shaffer’s complaints o f pain. In evaluating a claimant’s pain, the ALJ must consider the level of medication the claimant uses and its effectiveness, the claimant’s attempts to o btain relief, the frequency of his medical contacts, the nature of his daily activitie s, his credibility, and the consistency or compatibility of nonmedical testimony with objective medical evidence. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). “Credibility determinations are peculiarly the province of the f inder of fact, and we will not upset such determinations when supported by substantial evidence.” Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). While the ALJ could have discussed these factors mo re extensively, we see no legal error. Mr. Shaffer’s daily activities are fairly comprehensive. He takes pain medication, but his treating physicians have i ndicated that the medication1 We note, although the ALJ did not consider this fac t, that Mr. Shaffer told

his treating physician in 1991 that he quit his job because of unsatisfactory work conditions, not because of any physical impairment. See App. Vol. II at 121. -5- controls his pain effectively. He seeks regular me dical intervention, but no physician has indicated that intervention has been ineffective or that Mr. Shaffer has been incapacitated by his medical problems. Th e ALJ’s credibility determination is well supported by the record. 1 Finally, Mr. Shaffer contends the ALJ erroneously f ailed to shift the burden of proof to the Commissioner until after he made th e RFC determination. The RFC determination is initially part of the step four evaluation and, thus, is made before the burden of proof shifts at step five. Se e Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th Cir. 1997); 20 C.F.R. § 1520(e), ( f). No error occurred. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge