* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 7 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROSS L. FRADY,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER, Commissioner

of Social Security,

Defendant-Appellee.

No. 96-8043

(D.C. No. 95-CV-1037)

(D. Wyo.)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.
-2-

Ross L. Frady appeals from the district court’s order affirming the decision

of the Commissioner of Social Security denying him social security disability

benefits. Claimant alleges disability due to back, chest, and testicular pain. The

administrative law judge (ALJ) found claimant’s complaints of disabling pain not

fully credible and determined that he was not disabled at step five of the five-step

sequential evaluation process. See Williams v. Bowen, 844 F.2d 748,750-52

(10th Cir. 1988). We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. 

§ 1291, and we affirm.

On appeal, claimant argues that the ALJ (1) erred in his credibility

determination in failing to give “sufficient weight” to claimant’s testimony

regarding his pain and functional limitations, (2) erred in not giving “sufficient

weight and consideration” to the finding by the Veteran’s Administration (VA)

that claimant is disabled, and (3) erred in “ignoring” certain testimony of the

vocational expert (VE). Appellant’s Br. at 2.

Our job on appeal is to “closely examine the record as a whole to determine

whether the [Commissioner’s] decision is supported by substantial evidence and

adheres to applicable legal standards.” See Evans v. Chater, 55 F.3d 530, 531

(10th Cir. 1995). We do not reweigh the evidence. See Castellano v. Secretary of

Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
1 Claimant states in his brief that the ALJ “does not give a basis for his

conclusion that Claimant’s assertions are not credible or consistent with the

record.” Appellant’s Br. at 6. We disagree. See Admin. R. at 31-32 (where ALJ

discusses medical evidence and evidence of daily activities that he finds

inconsistent with the existence of disabling pain).

-3-

Claimant seems to argue that, under Luna v. Bowen, 834 F.2d 161 (10th

Cir. 1987), once the ALJ found a back impairment that could reasonably be

expected to produce some pain, he was required to accept as true claimant’s

allegations of disabling pain. That is not the law. Where there is a medically

determinable impairment that can reasonably be expected to produce some pain,

the ALJ is required to consider all relevant evidence in evaluating a claimant’s

subjective complaints. See id. at 164-65; Baca v. Dep’t of Health & Human

Servs., 5 F.3d 476, 480 (10th Cir. 1993). That is precisely what the ALJ did in

this case, even in the absence of any medically determinable impairment that

could reasonably be expected to produce chest or testicular pain, and he found

claimant’s credibility wanting. “‘Credibility determinations are peculiarly the

province of the finder of fact,’” Winfrey v. Chater, 92 F.3d 1017, 1020 (10th Cir.

1996) (quoting Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777

(10th Cir. 1990)), and we see no reason on this record to disturb the ALJ’s

determination.1

Claimant also challenges the ALJ’s treatment of the VA’s disability

finding, taking the position that it was ignored. See Appellant’s Br. at 8. We do
-4-

not consider that a fair characterization of the record. The ALJ inquired about the

VA’s disability determination at the hearing, see Admin. R. at 200, and discussed

at some length in his opinion the medical findings that served as a basis for that

determination, see id. at 30, 31-32. The fact that the ALJ drew a different

conclusion from those findings does not constitute legal error. See Baca, 5 F.3d

at 480 (VA determination entitled to weight and consideration, but is not binding

on the Commissioner).

Finally, claimant’s contention that the ALJ erroneously disregarded certain

testimony of the VE is also without merit. The ALJ’s hypothetical questions to

the VE need only reflect impairments and limitations that are borne out by the

evidentiary record. See Evans, 55 F.3d at 532. Given the ALJ’s credibility

determination, which we have already affirmed, no error was committed when the

ALJ disregarded expert testimony that accepted as true limitations which the ALJ

ultimately and properly rejected.

The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge