                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 29 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TERRY RAY VENABLE,

                Plaintiff-Appellant,

    v.                                                   No. 00-5030
                                                   (D.C. No. 98-CV-701-M)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK, ANDERSON,              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); 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      This order and judgment is not binding precedent, except under the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 Terry Ray Venable appeals from an order of the district court

affirming the Commissioner’s determination that he is not entitled to Social

Security disability benefits. We affirm.

       We review the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards. See Castellano v.

Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quotations omitted). In the course of

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

that of the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,

800 (10th Cir. 1991).

       Mr. Venable alleged disability as of July 22, 1995,   due to back pain and

damage to his left knee.   The administrative law judge (ALJ) determined that

Mr. Venable was not disabled as he retained the residual functional ability to

perform the full range of sedentary work. See, e.g. , Williams v. Bowen, 844 F.2d

748, 751-52 (10th Cir. 1988).

       On appeal, Mr. Venable argues that the ALJ failed to cite specific

legitimate reasons for rejecting his treating physician’s opinion that he was

disabled. Mr. Venable also asserts that the ALJ’s findings regarding his


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credibility and complaints of disabling pain are not supported by substantial

evidence and that the ALJ did not do the analysis required by      Luna v. Bowen , 834

F.2d 161 (10th Cir. 19 87) . Finally, Mr. Venable argues that the ALJ failed to

properly develop the record by failing to (1) mention his mental impairments of

depression and insomnia; (2) obtain a consultative mental examination;

(3) complete a psychiatric review technique form and; (4) request all his records.   1



       Although Mr. Venable claims disability as of July 1995, the record shows

that he first sought treatment for his allegedly disabling back pain in 1996. Tests

have shown that he has no degenerative joint or disc disease except for scoliosis

at the L5-S1 which was suggested as possibly being the site of his pain. There

was no evidence of any gross muscle spasm or of atrophy. Physicians have noted

that Mr. Venable had full passive range of motion, but limited active flexion and

did not meet any criteria for nerve compression. One treating physician,

Dr. Lewis, concluded, however, that he was “virtually incapacitated by his

fibromyalgia and post-traumatic pain syndrome.” Rec. Vol. 2 at 186. An

examining physician found no physical impairments or deformities.




1
       Appellee contends that these last four issues are new on appeal and are
waived. Mr. Venable agrees that the issues are new, but posits that he may raise
them because he has new counsel on appeal who should not be held to any
omissions of prior counsel. Mr. Venable cites no law to support this proposition.
The issues are waived. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) .

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       Mr. Venable argues that the ALJ failed to cite specific legitimate reasons

for rejecting Dr. Lewis’ opinion as required by        Goatcher v. United States Dep’t of

Health & Human Servs. , 52 F.3d 288, 290 (10th Cir. 1995)         . “A treating

physician’s opinion must be given substantial weight unless good cause is shown

to disregard it.”   Id. at 289-90. Good cause to reject the opinion is shown if the

opinion is not “well supported by clinical and laboratory diagnostic techniques

and if it is . . . inconsistent with other substantial evidence in the record.”

Castellano , 26 F.3d at 1029. The treating physician’s opinion as to the ultimate

question of disability is not dispositive.   See id.

       The ALJ complied with these directives and properly rejected Dr. Lewis’

opinion. The opinion is not supported by diagnostic tests. Further, other

substantial evidence in the record as detailed,    supra , is inconsistent with

Dr. Lewis’ opinion. Thus, it was not entitled to controlling weight.

       Mr. Venable also argues that the ALJ’s findings regarding his credibility

and complaints of disabling pain are not supported by substantial evidence.        In

evaluating a claimant’s pain, the ALJ must consider the level of medication the

claimant uses and its effectiveness, the claimant’s attempts to obtain relief, the

frequency of his medical contacts, the nature of his daily activities, his credibility,

“and the consistency or compatibility of nonmedical testimony with objective

medical evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).


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“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. Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). As

Mr. Venable established that he suffers from an impairment which can produce

pain, the ALJ was required to perform this evaluation.

      The objective medical evidence does not support a finding that

Mr. Venable’s pain is disabling. In fact, it even appeared to support a finding

that he had exaggerated his symptoms. T   he inability to work pain-free is not

sufficient reason to find a claimant disabled. See Gossett v. Bowen, 862 F.2d

802, 807 (10th Cir. 1988). We will not disturb the ALJ’s credibility finding.

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

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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