                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 22 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GEORGE W. GILL,

                Plaintiff-Appellant,

    v.                                                   No. 98-7061
                                                     (D.C. No. CV-97-8-S)
    KENNETH S. APFEL, Commissioner,                      (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            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); 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      This order and judgment is not binding precedent, except under the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.
       This appeal is taken from the district court’s judgment upholding the

Commissioner’s denial of social security disability and 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 capacity (RFC) to perform jobs, other

than his past relevant work, which exist in significant 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 jurisdiction under 28 U.S.C. § 1291

and 42 U.S.C. § 405(g) and affirm.

       On appeal, plaintiff alleges that (1) the ALJ failed to properly evaluate the

evidence of plaintiff’s pain and physical impairments 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 perform 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 correct 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


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as adequate to support a conclusion.”    Richardson v. Perales , 402 U.S. 389, 401

(1971) (further quotation omitted). We may neither reweigh 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 Commissioner to establish that

plaintiff is capable of performing work existing in the national economy.

See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998).

      Plaintiff was born in May of 1959 and claimed he has been unable to work

since April 16, 1994, because of a right rotator cuff tear, which causes shoulder

pain and decreased strength in his right shoulder and hand. The medical evidence

reflects that plaintiff suffered several injuries to his right shoulder from 1987

through the alleged onset of disability date, for which he has been treated at

various times with arthroscopic surgery, physical therapy, shots, moist heat,

and certain restrictions on activity. His past relevant 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 lift between ten and twenty

pounds with his right hand; that he walks, vacuums, visits friends, and watches

television. His disability report states that he drives a truck, visits his parents,

and watches stock car racing. Relying on the testimony of a vocational expert


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(VE), the ALJ determined there are a significant number of light jobs which

plaintiff could perform, subject to certain lifting restrictions and considering

a twenty-five percent reduction in the use of plaintiff’s right hand. These jobs

included light cashier, light office helper, mail clerk, housekeeping, and cleaning.

       Plaintiff first claims that the ALJ’s finding that plaintiff retains the

capacity to perform a full range of work, subject to strength and lifting

limitations, on a sustained basis is not supported by substantial evidence.

We disagree. The ALJ carefully considered the relevant medical evidence

presented and disregarded what evidence was not relevant because it was

duplicative, lacking in diagnosis, repetitive or related 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 ability to do work which required

lifting as much as 20 pounds and perform the standing 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 credibility 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




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id. at 45-46, and that he could stand and sit at least thirty 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 him 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 dislocations 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 normal upper left extremity, some

strength deficiency, and radiographs of the right shoulder showing no substantial

degenerative changes. Plaintiff was able to complete full ranges of motion,

though accompanied by pain.      See id. at 210. In considering plaintiff for

permanent impairment, Dr. Farrar concluded that plaintiff 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 believe plaintiff to be “100%

permanently totally disabled for any occupation” and thought plaintiff could be

retrained. See id. at 208.

      On examination in January of 1995, at which time plaintiff stated he had

“shoulder problems,” Dr. J. Michael Ritze, D.O., reported tenderness in the right


                                           -5-
anterior shoulder region, twenty-five percent decreased strength in the right arm

in abduction (with an otherwise normal range of motion), 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 with 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 the 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 testimony and the objective

findings of treating and examining physicians.      See Clifton v. Chater , 79 F.3d

1007, 1009 (10th Cir. 1996) (record must demonstrate ALJ considered all

evidence, but ALJ not required to discuss every piece of evidence). The ALJ

found plaintiff’s claim of pain to be lacking in credibility based on plaintiff’s

failure, without explanation, to seek medical treatment 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 province of the finder 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).


                                           -6-
       The ALJ adequately considered factors (to the extent applicable to this

case) including:

       the levels of medication and their effectiveness, the extensiveness of
       the attempts (medical or nonmedical) to obtain relief, 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 compatibility 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 quotation omitted).

       In all of the medical reports, no doctor has suggested plaintiff suffers from

disabling pain. This is not a situation in which the absence of evidence is made

to serve as substantial evidence to meet the Commissioner’s burden at step five,

cf. Thompson at 1491, but rather one in which the relevant medical 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 records must be

consistent with nonmedical testimony as to severity of pain).

       Plaintiff also argues that the ALJ failed to comply with Social Security

Ruling 96-8p, 1996 WL 374184 (July 2, 1996), in assessing plaintiff’s RFC.

This argument was not raised in district court, and we will not address it here.

See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling




                                            -7-
reasons, we do not consider arguments that were not presented to the district

court.”).

       Plaintiff also claims that the hypothetical question posed to the VE by the

ALJ did not relate with precision to all of plaintiff’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 not required 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 need only reflect impairments

and limitations supported by the record). Although plaintiff claims his attorney’s

“valid hypothetical question” established that there were no jobs plaintiff was

able to perform, Appellant’s Br. at 34, plaintiff does 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 for the Eastern District

of Oklahoma is AFFIRMED.

                                                       Entered for the Court



                                                       Stephen H. Anderson
                                                       Circuit Judge



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