                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JAN 7 2004
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    JIMMIE D. DAVIS,

                Plaintiff-Appellant,

    v.                                                   No. 03-7009
                                                    (D.C. No. 02-CV-15-P)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before O’BRIEN and BALDOCK , Circuit Judges, and              BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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.
        Plaintiff seeks review of the district court’s order affirming the Social

Security Commissioner’s denial of his application for social security disability

and supplemental security income benefits. We have jurisdiction under 42 U.S.C.

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

        Plaintiff filed his benefits applications in October of 1998, alleging

disability as of October of 1995 due to fatigue, dizziness, nausea, shortness of

breath, right leg cramps, and back pain. Plaintiff is a younger individual, see 20

C.F.R. §§ 1563(c); 416.963(c), with about thirty hours of college education. His

past relevant work was primarily as an oil field electrician; he has also done odd

jobs.

        Following a hearing, the administrative law judge (ALJ) determined, at step

five of the sequential disability evaluation, that plaintiff was not disabled.   See

Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing sequential

evaluation). Specifically, the ALJ determined that plaintiff retains the residual

functional capacity (RFC) to perform a wide range of light work, subject to

certain limitations, and that occupations exist in the regional or national economy

that plaintiff can perform regardless of his impairments. Aplt. App. Vol. 2 at 17.

The ALJ further found plaintiff had no medically determinable mental

impairments. Id. at 18. We review the ALJ’s decision only to determine whether

his factual findings are supported by substantial evidence and whether he applied


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the correct legal standards.   See Watkins v. Barnhart , No. 03-7046, ___ F.3d___,

2003 WL 22855009, at *1 (10th Cir. Dec. 2, 2003).

       The medical evidence reflects that plaintiff was injured in an accident on an

off-shore oil rig in 1994. Conservative treatment for this injury proved

ineffective, and in October of 1996 he underwent a right L5-S1 laminectomy and

discectomy. In March of 1997, his treating physician, Dr. Boone, noted that

plaintiff had done well since the surgery, Aplt. App. at 132, had realized “good

resolution of his radicular pain,” and had reached a point of maximum medical

improvement. Id. Dr. Boone reported that plaintiff had “good motion strength

bilaterally,” with “negative neurotensin signs” and nearly complete spinal range

of motion. Dr. Boone further noted plaintiff continued to have some mechanical

back pain and occasional posterior thigh and calf pain, but that this was of an

“intermittent nature.”   Id. at 133. Dr. Boone further rated plaintiff as permanently

partially impaired related to the surgically treated disc pathology (10%), with an

additional 1% due to disc pathology not addressed surgically.          Id. Plaintiff was

released with the medical recommendation that he “pursue light to light-medium

work not to involve a lot of repetitive lifting more than 25 to 30 pounds and to

avoid a lot of repetitive bending, stooping, climbing or squatting.”        Id. Dr. Boone

further suggested plaintiff avoid “positions which involve a lot of prolonged




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standing for more than one hour without [the] ability to rest or change positions.”

Id.

       The ALJ further considered clinical progress notes from 1999, which

reflect treatment for chronic back pain, sciatia, somatic dysfunction of the

thoracic and lumbar spines.     Id. at 14; 173-77. The ALJ also considered

plaintiff’s prescribed and over-the-counter pain medications.        Id. at 15. Finally,

the ALJ indicated he had carefully reviewed each exhibit and had considered

plaintiff’s subjective complaints of pain under the appropriate criteria.      See id.

at 14-15.

       In district court and on appeal, plaintiff generally challenged the

Commissioner’s decision as neither based on substantial evidence nor issued in

accordance with correct legal standards. He further lists several specific issues

regarding the ALJ’s decision.

       First, plaintiff argues the ALJ mistook relevant facts and overlooked

relevant evidence. We disagree. To the extent plaintiff claims error in the ALJ’s

decisional statement that Dr. Boone found the back surgery “achieved good

resolution of [plaintiff’s] pain,” Aplt. Br. at 7-8, the ALJ in fact also quoted

directly Dr. Boone’s statement that plaintiff had achieved “good resolution of his

radicular pain.” Aplt. App, Vol. 2 at 14. Plaintiff’s further suggestion that

Dr. Boone would “see and show the results of the surgery in the most positive


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light,” Aplt. Br. at 8, is both speculative and unsupported by the record.

Plaintiff’s challenge to the ALJ’s characterization of Dr. Hillboe’s 1995 finding

of “mildly severe degenerative disc changes” is likewise without merit; in

addition, Dr. Hillboe’s determination      predates Dr. Boone’s back surgery.

Plaintiff’s recitation of certain clinical findings and diagnoses not mentioned by

the ALJ does not support his claim the ALJ did not consider this evidence.

Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding ALJ must

consider all evidence, but need not discuss each piece). Rather, plaintiff is

suggesting that this court reweigh the evidence, which, of course, we cannot do.

See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995) (stating we will not

reweigh evidence).

      Next, plaintiff contends that ALJ erred by substituting his own medical

knowledge for that of plaintiff’s physicians and psychologists. Aplt. Br. at 11-15.

Within this category, however, plaintiff argues only that the ALJ erred in failing

to order a psychological consultative examination and in completing a psychiatric

review form himself. We disagree. Even assuming that plaintiff’s attorney timely

requested a psychological consultative examination, there is nothing in the

medical record to suggest the need for such an examination.       See generally Diaz

v. Sec’y of Health & Human Servs.       , 898 F.2d 774, 778 (10th Cir. 1990) (stating

Secretary has broad latitude in ordering consultative examination);      Hawkins v.


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Chater , 113 F.3d 1162, 1168 (10th Cir. 1997) (noting consultative examination

necessary only when plaintiff presents evidence sufficient to raise suspicion of

nonexertional impairment) (citing   Brock v. Chater , 84 F.3d 726, 728 (5th Cir.

1996)).

      Plaintiff further contends that the ALJ failed to support his credibility

finding with substantial evidence. Again, we disagree. The ALJ fully considered

plaintiff’s testimony, particularly that addressing his daily activities. Plaintiff

fails to show where in the record there exists contradictory evidence. “Credibility

determinations are peculiarly the province of the finder of fact, and we will not

upset such determinations when supported by substantial evidence.”       Kepler v.

Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted).

      For his fourth issue, plaintiff contends the ALJ failed to meet the burden

that shifts from plaintiff to the Commissioner at step five. After the ALJ

determined plaintiff could not do his past relevant work, the ALJ utilized the

expertise of a vocational expert (VE) to determine whether, given plaintiff’s

physical limitations and the other relevant factors, plaintiff could nonetheless

perform a sufficient range of jobs within the light work category. An ALJ is

obligated to propound questions to the VE incorporating the plaintiff’s limitations

as supported by the evidence.   See Evans v. Chater , 55 F.3d 530, 532 (10th Cir.




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1995) (holding ALJ must include in hypothetical inquiry only impairments

supported by record). The questions asked here satisfied this standard.

      As his fifth issue, plaintiff contends the ALJ erred by failing to properly

develop psychological evidence. Aplt. Br. at 20-22. For the reasons previously

stated, this argument is without merit.

      Plaintiff next argues that the ALJ erred in “failing to make findings of fact

concerning limitations associated with pain or psychological problems.”       Id. at 23.

Other than this statement, however, plaintiff makes no argument, nor does he cite

error by the ALJ or the district court. And, finally, plaintiff claims this case

should be remanded for an immediate award of benefits. Because we uphold the

Commissioner’s determination, this argument must fail.

      We conclude that the Commissioner’s decision is amply supported by

substantial evidence and that correct legal standards were applied.

      AFFIRMED.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge




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