                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 4 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID E. SEBREE,

                Plaintiff-Appellant,

    v.                                                    No. 99-7035
                                                    (D.C. No. 98-CV-288-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , and BRISCOE, 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Claimant David E. Sebree appeals from    the district court’s order affirming

the decision of the Commissioner of Social Security. In that decision, the

Commissioner denied claimant’s applications for disability insurance benefits and

supplemental security income benefits made under Titles II and XVI of the Social

Security Act. See 42 U.S.C. §§ 423, 1382. We exercise jurisdiction under 42

U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.

       Claimant asserts that he has been disabled since September 28, 1993

because of back pain caused by spondylolysis, stomach pain, headaches, and high

blood pressure. His past work includes truck driving, laying sheetrock, and

working as a dishwasher and cook. After a hearing held in December 1995, the

administrative law judge (ALJ) found that claimant has spondylolysis that does

not meet a listed impairment, but that he was unable to perform his past relevant

work. See Appellant’s App. Vol. II at 33. At step five of the sequential

evaluation, see generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.

1988), the ALJ determined that claimant has the residual functional capacity

(RFC) to perform light work, reduced by an inability to repetitively push or pull

arm and leg controls, or to do more than occasional repetitive overhead reaching,

bending, stooping, crouching, or climbing, or to be exposed to unprotected

heights, or to balance.   See Appellant’s App. Vol. II at 33. He found claimant’s

testimony regarding disabling pain not to be credible, but he did believe claimant


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had some pain that limited him to doing no more than light work.          See id.

at 30-31.

       The ALJ elicited vocational expert testimony as to the jobs claimant could

do in the national economy given his limitations. In his first hypothetical, the

ALJ described claimant as able to do sedentary to light work restricted by the

above-noted limitations and as having mild to moderate chronic pain and taking

medications that did not preclude him from carrying out work assignments or

remaining reasonably alert.       See id. at 234. He gave the expert an alternative

scenario in which claimant needed to be able to alternate sitting and standing

every hour. See id. at 237. The vocational expert opined that, under the first

hypothetical, claimant could work as a taxi starter; food assembler; parking lot,

self-service gas station, arcade, car wash, or counter sales attendant; escort driver

and surveillance monitor; and that he could also do miscellaneous hand-working

jobs like polishing and taping.      See id. at 235-37. Under the second hypothetical,

he opined that claimant could perform some of the attendant jobs and the

surveillance monitor and taxi starter positions.        See id. at 237. After considering

the medical record, hearing testimony, and social security regulations, the ALJ

concluded that claimant was not disabled.          See id. at 34.

       Claimant raises three issues on appeal: (1) whether the ALJ’s RFC

determination was improperly based on an absence of evidence; (2) whether his


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credibility findings are supported by substantial evidence; and (3) whether he

gave the vocational expert hypothetical questions based upon claimant’s abilities

and limitations. Our review is limited to determining 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).

       Dr. Charles Harris prepared an RFC assessment for the agency based on the

medical records of claimant and concluded that claimant could occasionally lift

fifty pounds, frequently lift twenty-five pounds, and stand and sit for six hours

each during an eight-hour workday, and that pain did not limit his RFC.        See

Appellant’s App. Vol. II at 61. He found no other significant limitations except

for occasional stooping.    See id. at 62-64. Claimant argues that the ALJ

apparently rejected this assessment because he concluded that claimant’s RFC

was in fact limited in certain areas, and that the ALJ’s assessment is therefore not

supported by medical evidence. We conclude that the medical assessment

supports the ALJ’s general RFC determination that claimant can do light work

and that the ALJ properly imposed further limitations after considering claimant’s

testimony and other medical records.

       “Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial


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evidence.” Diaz v. Secretary of Health & Human Servs.    , 898 F.2d 774, 777 (10th

Cir. 1990). The ALJ supported his determination that claimant’s complaints of

disabling pain were not credible by noting that (1) claimant had successfully

worked for several years with spondylolysis and his x-rays had not changed

during that time to indicate that it had worsened; (2) claimant’s statements in the

record regarding his activities were inconsistent with disabling pain; (3) claimant

had suffered injuries after falling out of duck blinds and contracting poison ivy

rashes, which the ALJ believed resulted from continued hunting activities and not

from wandering around his mother’s back yard, as claimant alleged; (4) the

medical record indicated that claimant’s hiatal hernia was mild and medically

treatable; (5) the medical record was inconsistent with claimant’s allegations of

disabling pain; and (6) claimant’s demeanor and inconsistent statements at the

hearing suggested that he was not completely credible.   See Appellant’s App.

Vol. II at 28-31. We conclude that the ALJ’s credibility finding is supported by

substantial evidence.

      Citing Bastian v. Schweiker , 712 F.2d 1278, 1282 n.5 (8th Cir. 1983),

claimant argues that the ALJ’s hypothetical question to the vocational expert was

improper because the ALJ allegedly told the expert that claimant could perform

light and sedentary work, thereby eliminating the usefulness of the expert.

Claimant’s argument is without merit because the ALJ specifically limited


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claimant’s RFC in both hypotheticals and then properly inquired whether there

were sufficient jobs in the national economy claimant could perform given these

limitations. Claimant’s assertion that the ALJ erred by failing to include

claimant’s headaches, hiatal hernia, depression, and high blood pressure in the

hypotheticals is also without merit because the ALJ’s findings that these

conditions were either controlled or did not significantly limit claimant’s capacity

to perform work is supported in the record. Complaints are considered to be

severe 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 omitted). Because

the ALJ determined that claimant’s testimony as to the extent of his limitations

was neither completely credible nor supported by objective medical evidence, he

was not required to include all complaints in the hypothetical questions.      See

Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions need

only reflect impairments and limitations supported by the record).




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

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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