* This order and judgment is not binding precedent, e xcept under the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 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Ross L. Frady appeals from the district court’s ord er 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 disab led 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 i n 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 Vet eran’s Administration (VA) that claimant is disabled, and (3) erred in “ignori ng” certain testimony of the vocational expert (VE). Appellant’s Br. at 2. Our job on appeal is to “closely examine the recordas 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. SeeCastellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994).1 Claimant states in his brief that the ALJ “does notgive a basis for his

conclusion that Claimant’s assertions are not credi ble 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 ac tivities 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 th at could reasonably be expected to produce some pain, he was required to a ccept as true claimant’s allegations of disabling pain. That is not the law . Where there is a medically determinable impairment that can reasonably be expe cted to produce some pain, the ALJ is required to consider all relevant eviden ce 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 precis ely what the ALJ did in this case, even in the absence of any medically det erminable impairment that could reasonably be expected to produce chest or te sticular pain, and he found claimant’s credibility wanting. “‘Credibility dete rminations 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 rec ord 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. SeeAppellant’s Br. at 8. We do-4-

not consider that a fair characterization of the re cord. 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 differ ent conclusion from those findings does not constitute legal error. See Baca , 5 F.3d at 480 (VA determination entitled to weight and con sideration, but is not binding on the Commissioner). Finally, claimant’s contention that the ALJ erroneo usly disregarded certain testimony of the VE is also without merit. The ALJ ’s hypothetical questions to the VE need only reflect impairments and limitation s 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 e rror 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 fo r the District of Wyoming is AFFIRMED. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge