                      UNITED STATES COURT OF APPEALS
Filed 12/20/96
                             FOR THE TENTH CIRCUIT



    DANIEL R. DALTON,

                Plaintiff-Appellant,

    v.                                                    No. 96-7026
                                                    (D.C. No. CV-94-667-S)
    SHIRLEY S. CHATER, Commissioner                       (E.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before PORFILIO, ALARCON, ** 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




*
      This order and judgment is not binding precedent, except under the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.
**
     Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Claimant Daniel R. Dalton appeals from the district court’s order adopting

the recommendation of the magistrate judge affirming the Secretary of Health and

Human Services’ denial of his application for Social Security disability insurance

benefits. 1 Claimant, a thirty-five year old man with a high school education has

worked in the past as a roustabout, construction laborer, and welder. He alleges

disability from November 22, 1991, due to a back injury and several back

surgeries.

      Claimant’s application for benefits was denied initially and on

reconsideration. Following a hearing, the administrative law judge (ALJ),

disagreeing with the Social Security Administration’s initial decision, found

claimant disabled within the meaning of the Social Security Act from

November 2, 1991, through March 24, 1993. The ALJ determined, however, that

on and after March 25, 1993, claimant had regained the residual functional

capacity to perform a full range of sedentary work subject to no bending,




1
      Although this case was filed after the functions of the Secretary of Health
and Human Services, Donna E. Shalala, were transferred to the Commissioner of
Social Security, Shirley S. Chater, we continue to refer to the Secretary because
she was the appropriate party at the time of the underlying administrative
decision.

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squatting, or stooping, and with the opportunity to change positions at will. The

district court affirmed the decision of the Secretary, and claimant appeals.

      Our review of the Secretary’s decision is limited to determining whether

the decision is supported by substantial evidence and whether the Secretary

applied correct legal standards. Castellano v. Secretary of Health & Human

Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “To find that the Secretary’s

decision is supported by substantial evidence, there must be sufficient relevant

evidence in the record that a reasonable person might deem adequate to support

the ultimate conclusion.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988).

However, we may neither reweigh the evidence nor substitute our judgment for

that of the Secretary. Id.

      An individual is disabled within the meaning of the Social Security Act

only if his impairments are so severe that he “is not only unable to do his previous

work but cannot, considering his age, education, and work experience, engage in

any other kind of substantial gainful work which exists in the national economy.”

42 U.S.C. § 423(d)(2)(A). If a claimant meets his burden of proving that he

cannot return to his past work, the burden shifts to the Secretary to show that the

claimant can perform other jobs in the national economy. Ray v. Bowen, 865

F.2d 222, 224 (10th Cir. 1989). Here, the administrative law judge denied

benefits at step five of the five-step evaluation process applied for determining


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

1988)(discussing the five steps in detail), finding that although claimant could not

return to his past work, he had the residual functional capacity to perform other

jobs existing in the national economy.

      On appeal, claimant argues that (1) the ALJ did not properly evaluate his

subjective complaints of pain; (2) the ALJ did not make the requisite specific

findings regarding claimant’s credibility; and (3) the ALJ failed to include the

limitations of headaches, limited motion, arm weakness, and pain in his

hypothetical question to the vocational expert. Claimant did not raise issues two

and three to the district court. Because our scope of review is limited to those

issues properly preserved and presented in the district court, issues two and three

are deemed waived. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.

1994)(“Absent compelling reasons, we do not consider arguments that were not

presented to the district court.”).

      Therefore, the only issue properly before this court is claimant’s contention

that the ALJ did not properly evaluate his subjective complaints of pain. Because

claimant presented medical evidence that he suffered a back injury requiring four

surgeries, a condition reasonably likely to produce pain, the ALJ was required to

evaluate whether claimant’s pain was disabling by considering all relevant

factors. See Luna v. Bowen, 834 F.2d 161, 164 (10th Cir. 1987). Contrary to


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claimant’s contention, the ALJ did not disregard claimant’s allegations of pain

merely because there was no medical evidence to support his claim that his pain

was disabling.

      The ALJ noted that following claimant’s last surgery in March 1992, he

made steady improvement. R. Vol. II at 16. Dr. Bradley, claimant’s treating

neurosurgeon, opined in April 1993, that although claimant required retraining, he

was not permanently disabled. Id. at 451. The ALJ also noted that after

December 1992, claimant did not return to Dr. Bradley for further treatment,

indicating that claimant was not experiencing further functional loss or

discomfort. Id. at 17.

      Although claimant testified that he continued to have pain, he stated that he

took only over-the-counter medications to control the pain. Id. at 18. The ALJ

questioned claimant regarding his daily activities, id. at 48, and considered

claimant’s testimony in determining that claimant’s pain did not affect his ability

to do work activities, id. at 18. He found claimant’s allegations of pain to be not

credible due to the lack of objective medical evidence from his treating and

examining physicians, the lack of strong pain medications, the lack of medical

treatment, and claimant’s demeanor at the hearing. Id. at 18-19.

      We conclude the ALJ properly evaluated plaintiff’s subjective complaints

of pain pursuant to Luna and properly refused to credit claimant’s pain allegations


                                         -5-
with the severity he claims. Although it is clear that claimant suffers some pain,

“[d]isability requires more than mere inability to work without pain. To be

disabling, pain must be so severe . . . as to preclude any substantial gainful

employment.” Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988)(quotation

omitted).

      Our careful review of the record convinces us that there is substantial

evidence to support the ALJ’s decision that plaintiff was not disabled on or after

March 25, 1993. The judgment of the United States District Court for the Eastern

District of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Arthur L. Alarcon
                                                     Circuit Judge




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