* This order and judgment is not binding precedent, e xcept under the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 

### FEB 22 1999 

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

GEORGE W. GILL,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-7061 (D.C. No. CV-97-8-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , 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 argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

This appeal is taken from the district court’s judg ment upholding the Commissioner’s denial of social security disabilityand supplemental security income benefits. The administrative law judge (ALJ ) determined at step five of the applicable analysis, that considering plaintiff’s impairments along with other factors, plaintiff has the residual functional capa city (RFC) to perform jobs, other than his past relevant work, which exist in signifi cant numbers and therefore was not entitled to benefits. See 20 C.F.R. §§ 404.1520 and 416.920; see generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-part sequential evaluation process). We have jurisdicti on under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and affirm. On appeal, plaintiff alleges that (1) the ALJ faile d to properly evaluate the evidence of plaintiff’s pain and physical impairmen ts and to consider the vocational impact of those impairments at step five of the sequential process, and (2) the ALJ failed to show plaintiff could perf orm a significant number of alternative jobs because the hypothetical question presented to the VE did not accurately reflect plaintiff’s impairments. See Appellant’s Br. at 4. We review the Commissioner’s decision to determine whether it is supported by substantial evidence and whether corre ct legal standards were applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept-3-

as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (further quotation omitted). We may neitherreweigh the evidence nor substitute our judgment for the Commissioner’s. See Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). At step five of the sequential evaluation, the burden falls on the Comm issioner to establish that plaintiff is capable of performing work existing inthe national economy.
See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998). Plaintiff was born in May of 1959 and claimed he ha s been unable to work since April 16, 1994, because of a right rotator cu ff tear, which causes shoulder pain and decreased strength in his right shoulder and hand. The medical evidence reflects that plaintiff suffered several injuries t o his right shoulder from 1987 through the alleged onset of disability date, for w hich he has been treated at various times with arthroscopic surgery, physical therapy, shots, moist heat, and certain restrictions on activity. His past rel evant work is classified as semi-skilled or unskilled and of a medium to heavy exertional level. At the hearing before the ALJ, plaintiff testified that he was thirty-six years old and had finished high school; that he could lif t between ten and twenty pounds with his right hand; that he walks, vacuums, visits friends, and watches television. His disability report states that he d rives a truck, visits his parents, and watches stock car racing. Relying on the testi mony of a vocational expert-4-

(VE), the ALJ determined there are a significant nu mber of light jobs which plaintiff could perform, subject to certain lifting restrictions and considering a twenty-five percent reduction in the use of plain tiff’s right hand. These jobs included light cashier, light office helper, mail c lerk, housekeeping, and cleaning. Plaintiff first claims that the ALJ’s finding that plaintiff retains the capacity to perform a full range of work, subject t o strength and lifting limitations, on a sustained basis is not supported by substantial evidence. We disagree. The ALJ carefully considered the rele vant medical evidence presented and disregarded what evidence was not rel evant because it was duplicative, lacking in diagnosis, repetitive or re lated to a time not covered by the claim. Plaintiff alleges the ALJ erroneously concluded that “despite three injuries to his right dominant shoulder, severe pain in his right shoulder, arm, hand and right side, that [plaintiff] had the physical abili ty to do work which required lifting as much as 20 pounds and perform the standi ng and walking associated with that type of work.” See Appellant’s Br. at 22. Instead, the ALJ found plaintiff’s claim of severe pain lacking in credibi lity for a number of reasons, all of which are supported by the evidence in the record. See Appellant’s App., Vol. II at 17-18. Moreover, plaintiff testified he could lift ten to twenty pounds, see-5-

id. at 45-46, and that he could stand and sit at leastthirty minutes, perhaps more.
See id. at 37-38. The medical evidence reflects that as of September 1993, although still experiencing discomfort in his shoulder, plaintiff stated he was getting better with therapy, and Dr. George S. Mauerman returned h im to light activity with no lifting of more than fifty pounds above shoulder height. See id. at 123. X-rays of his shoulder revealed “no evidence of fracture d islocations or other bony abnormality.” See id. at 177. As of March 11, 1994, plaintiff told Dr. Michael D. Farrar, D.O., that his shoulder was weak and his strength decreased. See id. at 209. The doctor reported, on examination, a norma l upper left extremity, some strength deficiency, and radiographs of the right s houlder showing no substantial degenerative changes. Plaintiff was able to comple te full ranges of motion, though accompanied by pain. See id. at 210. In considering plaintiff for permanent impairment, Dr. Farrar concluded that pla intiff showed impairment of twenty-six percent permanent partial impairment to the right arm. See id. at 211. On May 10, 1995, Dr. Farrar noted he did not believ e plaintiff to be “100% permanently totally disabled for any occupation” an d thought plaintiff could be retrained. See id. at 208. On examination in January of 1995, at which time pl aintiff stated he had “shoulder problems,” Dr. J. Michael Ritze, D.O., re ported tenderness in the right-6-

anterior shoulder region, twenty-five percent decre ased strength in the right arm in abduction (with an otherwise normal range of mot ion), and “palpable osteopathic lesions in the right coracoid process, right shoulder, rotator cuff.” Id. at 106-07. Dr. Ritze’s overall assessment was “(1 ) Chronic right shoulder instability with the history of rotator cuff tear w ith prior injuries times three. (2) Tobacco abuse. (3) History of alcoholism. (4) Obesity.” See id. at 107. Plaintiff also claims the ALJ failed to find that t he diagnosis of a twenty-five percent loss of use of plaintiff’s right arm and hand included pain.
See Appellant’s Br. at 28. In considering plaintiff’s allegations of pain, the ALJ reviewed the entire record, including plaintiff’s t estimony and the objective findings of treating and examining physicians. See Clifton v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996) (record must demonstrat e ALJ considered all evidence, but ALJ not required to discuss every pie ce of evidence). The ALJ found plaintiff’s claim of pain to be lacking in cr edibility based on plaintiff’s failure, without explanation, to seek medical treat ment since the alleged onset of disability (a fact plaintiff did not dispute), the type of medication plaintiff takes for pain (Ibuprofen), and the lack of pain-related behavior plaintiff exhibited. “Credibility determinations are peculiarly the prov ince of the finder of fact, and we will not upset such determinations when supporte d by substantial evidence.” Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990).-7-

The ALJ adequately considered factors (to the extent applicable to this case) including: the levels of medication and their effectiveness, t he extensiveness of the attempts (medical or nonmedical) to obtain reli ef, the frequency of medical contacts, the nature of daily activities , subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibili ty of nonmedical testimony with objective medical evidence. Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson v. Sullivan , 987 F.2d 1482, 1489 (10th Cir. 1993) (further quo tation omitted). In all of the medical reports, no doctor has sugges ted plaintiff suffers from disabling pain. This is not a situation in which t he absence of evidence is made to serve as substantial evidence to meet the Commis sioner’s burden at step five, cf. Thompson at 1491, but rather one in which the relevant medi cal evidence in the record simply does not support plaintiff’s claim of disabling pain. See Talley v. Sullivan , 908 F.2d 585, 587 (10th Cir. 1990) (medical recor ds must be consistent with nonmedical testimony as to severityof pain). Plaintiff also argues that the ALJ failed to complywith Social Security Ruling 96-8p, 1996 WL 374184 (July 2, 1996), in ass essing plaintiff’s RFC. This argument was not raised in district court, andwe will not address it here.
See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compel ling-8-

reasons, we do not consider arguments that were notpresented to the district court.”). Plaintiff also claims that the hypothetical questio n posed to the VE by the ALJ did not relate with precision to all of plainti ff’s impairments. Because the ALJ found plaintiff’s testimony as to the extent of his limitations was neither completely credible nor supported by objective medical evidence, however, see Appellant’s App., Vol. II at 16-18, the ALJ was notrequired to include all of plaintiff’s complaints in the hypothetical question. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions n eed only reflect impairments and limitations supported by the record). Althoughplaintiff claims his attorney’s “valid hypothetical question” established that ther e were no jobs plaintiff was able to perform, Appellant’s Br. at 34, plaintiff d oes not support this conclusion with any objective medical evidence other than his own statements, which, as noted, the ALJ did not find fully credible. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED. Entered for the Court

Stephen H. Anderson Circuit Judge