* This order and judgment is not binding precedent, e xcept under the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

### AUG 27 1999 

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

PALECIA R. ROUNDTREE,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-6365 (D.C. No. CIV-96-1857-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , 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-

Claimant Palecia R. Roundtree appeals from the district court’s order affirming the decision of the Commissioner of Socia l Security. In that decision, the Commissioner denied claimant’s applications fordisability insurance benefits made under Title II of the Social Security Act. See 42 U.S.C. § 423. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm. Two issues are presented for review. The first is whether the administrative law judge (“ALJ”) properly considere d claimant’s complaints of cervical pain when determining that she had no none xertional impairments at the sedentary level of activity and in determining her residual functioning capacity (“RFC”). The second is whether the ALJ demonstrate d that he had considered all the medical evidence that supported claimant’s alle gations of disability. In our review, we determine whether the ALJ’s decision is supported by substantial evidence on the whole record and comports with relevant legal standards. See Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800-01 (10th Cir. 1991). Claimant alleges disability due to pain in her back , neck, and shoulder resulting from strains and sprains suffered at work . Claims for disability benefits are evaluated according to the five-step sequential process set out in 20 C.F.R. § 404.1520. See Williams v. Bowen , 844 F.2d 748, 750 (10th Cir. 1988). At step five of this process, the ALJ found that claimant h ad the RFC to perform-3-

sedentary work that allowed for alternate sitting and standing. He discredited claimant’s subjective complaints of disabling pain, analyzing them in accordance with Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987). Claimant maintains that the ALJ discussed only one factor in making his credibility determinations--her daily activities. This assertion is clearly belied by the written decision. There, the ALJ noted that cl aimant’s complaints of disabling pain were not consistent with the amount or type of pain medication she was taking; that she had been discharged from physi cal therapy for failure to attend the sessions; that her treating neurosurgeonhad determined that she could resume work; that her diagnoses were of mild cervic al and lower back strains; that she regularly drove, did laundry, and cooked, and that she had not sought treatment for pain in almost two years. See Appellant’s App. Vol. II at 39-40. The ALJ’s credibility finding is supported by subst antial evidence. “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). Claimant next asserts that the ALJ erroneously conc luded that claimant’s “testimony regarding her back impairment was credib le but her testimony regarding her cervical impairment was not.” Appell ant’s Br. at 6. We have carefully reviewed the ALJ’s decision and can find no such conclusion. Claimant-4-

also argues that the ALJ’s analysis is internally i nconsistent because he concluded that she had a severe cervical impairment “and thenaccorded no limitations to it when assessing her RFC.” Id. We disagree. Claimant herself testified that her neck impairment had improved and was no longer her primary impairment, that she suffered from some muscle spasms two or three t imes a week, when she held her neck in one place for a long time, such as whenreading or watching TV, and that the spasms were relieved by doing neck exercises or using a heating pad. See Appellant’s App. Vol. II at 173-74. Thus, claimantdid not allege that her neck and shoulder pain were constant or severe. Complai nts of pain are considered to be nonexertional limitations only when they “ significantly limit [the] ability to perform the full range of work in a particular RFC category on a sustained basis.” Williams , 844 F.2d at 752 (emphasis added) (quotation omitt ed). The ALJ gave claimant’s complaints of pain some credence in thathe determined that pain limited her to doing sedentary work with the additi onal limitation of being allowed to move around. He ultimately concluded, h owever, that her pain was not disabling. This conclusion comports with the appli cable social security law. A finding of disability based on complaints of pain “ requires more than mere inability to work without pain. . . . [The] pain m ust be so severe . . . as to preclude any substantial gainful employment.” Brown v. Bowen , 801 F.2d 361, 362-63 (10th Cir. 1986) (quotation omitted). We have carefully reviewed-5-

claimant’s medical records, and the ALJ’s conclusio ns are supported by substantial evidence. Claimant alleges that the ALJ erred by failing to d iscuss Dr. Griffith Miller’s report concerning claimant’s neck and shou lder impairment, in which he opined that she had a 53% total impairment to the b ody due to a decreased range in cervical motion; six months of “documented” musc le spasms, pain, and rigidity; shoulder injury; and radiculopathy in the left arm with numbness, pain, and marked weakness. See Appellant’s App. Vol. II at 160; see also Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (stating that ALJ must consider all evidence and must discuss any significantly pro bative evidence he rejects or uncontroverted evidence he chooses not to rely on, but does not have to discuss every piece of evidence). Dr. Miller was a consult ative physician hired by claimant to examine her on April 15, 1993, for prep aration of a report for her worker’s compensation claim. A review of the medical records shows that Dr. Mill er’s report is not consistent with the reports of claimant’s treating physicians or even with the facts of her injury, which occurred on December 24, 1992. It is difficult to see how there could be six months of documented muscle spas m, pain, and rigidity arising from an injury that had occurred only four months p reviously. Further, Dr. Harvey, who initially treated claimant for two week s, reported no muscle-6-

spasm--his examination “revealed only tenderness ov er the [left] scapula.” Appellant’s App. Vol. II at 106. While Dr. Miller estimated her impairment rating for the cervical area based on range of moti on to be 12%, Dr. Reynolds, her treating neurologist, gave her an impairment rating of only 3% in a report dated April 16 that was based on his April 5 examination. Dr. Miller reported claimant’s cervical flexion and extension as 30 and35 degrees, respectively, while Dr. Reynolds found both to be 60 degrees. T here were similar discrepancies between the lateral cervical flexion and rotation measurements. Dr. Miller reported “marked” left arm muscle weakness; Dr. Reynolds reported muscle strength of 5/5 in all muscle groups. Compare id. at 160 with id. at 136-37. Dr. Miller reported a 20% impairment based on left arm radiculopathy, but Dr. Rice, an orthopedic specialist who also had examined her, found that she had no “true radicular type symptoms.” Dr. Miller foun d an impairment of 12% based on left shoulder injury, but Dr. Rice determined th at she had no symptoms suggesting rotator cuff injury, that her problem so unded “mainly muscular,” and that she had normal range of motion in her shoulder , no loss of strength, and no crepitation. Compare id. at 160 with id. at 143. We agree with the district court that claimant has failed to show that Dr. Miller’s findings were either “uncontroverted” or “significantly probative” as to require specific discussion.-7-

See id. Vol. I at 12 (quoting Clifton , 79 F.3d at 1009-10). The ALJ did not err in failing to discuss Dr. Miller’s report. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED

.

Entered for the Court

Deanell Reece Tacha Circuit Judge