                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     FEB 8 1999

                             FOR THE TENTH CIRCUIT                  PATRICK FISHER
                                                                             Clerk


    BOBBY C. SIMS,

                Plaintiff-Appellant,

    v.                                                    No. 98-7078
                                                    (D.C. No. 96-CV-652-B)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT          *




Before PORFILIO , BALDOCK , and HENRY , 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(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      This order and judgment is not binding precedent, except under the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 Bobby C. Sims 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; 42 U.S.C. § 1382. We exercise jurisdiction

under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.

       Two issues are presented for review. The first is whether the

administrative law judge’s (ALJ) determination that claimant’s allegations of

disabling pain and limitations were not fully credible is supported by substantial

evidence. The second is whether the Commissioner met his burden to establish

that claimant retained his ability to do light work on a reasonably regular basis

given the number of claimant’s medical visits between 1990 and 1994 and a

vocational expert’s testimony that, hypothetically, an employer would not retain

a person who is absent from work for medical reasons three or more times per

month.


                                  I. Legal standards

       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 Serv.    , 933 F.2d 799,

800-01 (10th Cir. 1991).

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      Claims for disability benefits and supplemental income payments are

evaluated according to the five-step sequential process set out in 20 C.F.R.

§§ 404.1520 and 416.920.     See Bowen v. Yuckert , 482 U.S. 137 (1987).

“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).

A finding of disability based on complaints of pain “requires more than mere

inability to work without pain. . . . [The pain must be] so severe . . . as to

preclude any substantial gainful employment.”       Brown v. Bowen , 801 F.2d 361,

362-63 (10th Cir. 1986) (quotation omitted). Further, 42 U.S.C. § 423(d)(5)(A)

requires that a pain-producing impairment “must be proven by objective medical

evidence before an agency decision maker can find a claimant disabled by pain.”

Luna v. Bowen , 834 F.2d 161, 163 (10th Cir. 1987).


                                     II. Discussion

A. Credibility

      In this case, the ALJ determined at step five that claimant has a severe

impairment that precluded him from performing his past relevant work, but that

he retained the ability to do light work. The ALJ found that, although claimant

has chest pain of an unknown etiology that causes



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      significant vocationally relevant limitations[,] . . . claimant’s
      statements concerning his impairments and their impact on his ability
      to work are not entirely credible in light of discrepancies between the
      claimant’s assertions and information contained in the documentary
      reports, the reports of the treating and examining practitioners, the
      claimant’s own description of his activities and life style, and the
      record as a whole.

Appellant’s App. at 388. The record is replete with claimant’s complaints of

pain, yet none of claimant’s treating physicians reported that the pain was

disabling, and the medical records indicate that the pain is episodic and of short

duration. A review of the medical record shows that a majority of the episodes

occurred at night, were quickly resolved, and were not triggered by exertion or

work-related activity. Plaintiff’s treating physicians could not identify any

objective medical impairments that would reasonably produce the disabling pain

claimant complained of, even though several kinds of diagnostic tests were

administered on various occasions.

      At least three different health care providers noted in the record that

claimant’s complaints were not supported by objective medical findings. For

example, on March 11, 1990, a nurse or physician noted that claimant was “very

concerned about possible health problems. Get a sense he wants something to be

wrong.” Id. at 349. On March 7, 1991, a doctor stated that claimant was

“insisting in the past year that he has had heart disease which has not been

documented by workup.”     Id. at 230. On April 14, 1994, his treating physician


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noted that claimant “wants to have a diagnosis that will give legitimacy to all his

medical complaints and problems. Unfortunately, I am unable to do that. . . . He

has no real incentive to improve his situation so long as these law suits are

active.” Id. at 518. Although claimant testified that he has “log jamming” in his

arteries caused by sickle cell trait,   id. at 660 & 665, the medical expert at the

hearing testified that “log jamming” is a symptom of sickle cell anemia, but not of

sickle cell trait, which causes no symptoms unless the patient is in a situation

involving a “real lack of oxygen.”      Id. at 682.

       Claimant’s complaints of pain were internally inconsistent. His most

frequent emergency room visits and hospitalizations for diagnostic tests occurred

in 1990. His last emergency room/hospital visit was apparently on September 18,

1994, id. at 508-14, and the last record of a doctor visit for chest pain was in

December 1994, id. at 638. In his disability application prepared on March 19,

1991, he stated that he had a sickle cell “crisis at least once a month,” but that he

had “no problems” with social contacts or driving and that he did his own

household maintenance.       Id. at 81-86. On May 30, 1991, he stated that daily he

looked for jobs, played dominoes with friends, visited a friend at his shop, did

housework, and went to the drag races on Fridays.         Id. at 89-93. At his hearing

held on December 12, 1991, claimant stated that he had four or five “attacks” a

month lasting from one to three or four hours,        id. at 42-3, but that when he was


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not experiencing an attack, he did not have any problems.         Id. at 44. He spent

much of his time looking for jobs.       Id.

       In contrast, at his hearing on January 11, 1996, he stated that he had chest

pain four or five times   a day , that the pain lasted from an hour to   eight or ten

hours, and that most of the time he      hurt through the night . See id. at 667-70.

Although claimant testified that his daily activities had not changed much since

he last worked in August of 1990,       see id. at 667, he now stated that he couldn’t

do anything but stay at home, rest, watch television and occasionally do very light

housekeeping for a few minutes.        See id. at 667-70. Thus, during the time

claimant was at the peak of his emergency room and doctor visits, he reported

being able to function normally when not having an episode, yet when he was

apparently doing so well he no longer needed to see the doctor or go to the

emergency room, he was virtually bedridden on a daily basis with complaints of

disabling pain.

       Claimant also has failed to follow doctors’ instructions, which is another

factor in determining credibility.      See Luna v. Bowen , 834 F.2d at 165. In

January 1990, he was advised to stop smoking,        see Appellant’s App. at 174, yet in

June 1992, he was still smoking a pack of cigarettes per day,       see id. at 283. He

was advised to undertake an exercise program to reduce his weight and improve

his condition in January 1990,       see id. at 187, and yet he apparently has never done


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so and his weight has stayed at between 198 and 208 pounds,       see id. at 94, 117,

405, 518. Although to treat his chest pain, Dr. Stewart “attempted to make

arrangements for him to see Dr. Russell for injection of his costochondral

junction[,] . . . every time the appointment was made he would always either not

show up or cancel it because the symptoms were gone.”         Id. at 519. After a

careful review of the whole record, we conclude that the ALJ’s credibility finding

is supported by substantial evidence.

      B. Residual functioning capacity

      Claimant argues that the fact that he visited the emergency room, was

hospitalized, and visited the doctor’s office so many times during 1990-94 proves

that he did not have a residual functioning capacity (RFC) to do light work. His

argument is based on the testimony of Russell Bowden (the vocational expert),

and the definition of RFC. The Commissioner defines RFC as

      an assessment of an individual's ability to do sustained work-related
      physical and mental activities in a work setting on a regular and
      continuing basis. A ‘regular and continuing basis’ means 8 hours a
      day, for 5 days a week, or an equivalent work schedule.

S.S.R. 96-8P, 1996 WL 374184, *1. Mr. Bowden testified that if claimant’s pain

was so severe that it kept him from going to work three or more times a month, he

could not hold competitive employment because employers generally only allow

one to two days of sick leave per month.    See Appellant’s App. at 697-8.

According to claimant, since the record shows that he sought medical assistance

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more than three times per month, that is conclusive proof that he was unable to

work on a regular and continuous basis. He argues that the ALJ improperly

discounted all of the medical record because of his conclusion that claimant was

not credible and that he “pointed to nothing to prove that Mr. Sims could have

worked during this period.” Appellant’s Br. at 22.

      Claimant misinterprets the import of the ALJ’s credibility determination.

In finding that claimant’s claims of disabling pain were not credible, the ALJ did

not ignore the medical record or the opinion of the vocational expert. He simply

concluded that, even if claimant did seek medical help on those occasions, either

because of the timing, duration, or actual (as opposed to claimed) severity of the

episodes, claimant still could have performed light work on a regular and

continuing basis based upon the medical records. His conclusion that claimant

has an RFC to do light work is supported by the whole record.

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

Oklahoma is AFFIRMED .



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge



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