                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     SEP 13 2001
                            FOR THE TENTH CIRCUIT
                                                                PATRICK FISHER
                                                                          Clerk

    PAUL JARAMILLO,

                Plaintiff-Appellant,

    v.                                                    No. 01-2032
                                                (D.C. No. CIV-99-1446 BB/DJS)
    LARRY G. MASSANARI, * Acting                           (D. N.M.)
    Commissioner of the Social Security
    Administration ,

                Defendant-Appellee.


                            ORDER AND JUDGMENT           **




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, 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




*
      On March 29, 2001, Larry G. Massanari became the Acting Commissioner
of Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff Paul Jaramillo 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. Jaramillo alleged disability as of September 1993 due to a spinal injury

resulting in pain and limitation of function.         The administrative law judge (ALJ)

determined that he was not disabled at step five of the five-step sequential

process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), as he

could perform light work .




                                                -2-
      On appeal, Mr. Jaramillo argues the ALJ’s findings were erroneous and not

supported by the record because his credibility analysis was wrong regarding

Mr. Jaramillo’s complaints concerning the duration and functional limitations of

his pain. He contends that the ALJ disregarded the vocational expert’s (VE)

testimony that he could not work.   1
                                        Mr. Jaramillo also suggests that should this

court find that he is not currently disabled, he should be found disabled for the

closed period from the date of his injury to the date of his recovery from surgery.

      Mr. Jaramillo suffered an on-the-job lifting injury. He was diagnosed with

a herniated disc. He thereafter underwent several years of non-surgical treatment

due to the opinions of various physicians that surgery was unlikely to improve his

condition. In December 1996, he had a diskectomy and spinal fusion.

      Mr. Jaramillo argues the ALJ’s credibility analysis was erroneous

regarding his description of the duration and functional limitations of his pain.

“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).




1
       Respondent contends that Mr. Jaramillo only raised credibility issues to the
district court. Our review of the briefs submitted to that court, however, shows
that Mr. Jaramillo properly raised the issues he now brings on appeal.

                                            -3-
       The record shows that no physician has considered Mr. Jaramillo unable to

work for a period of twelve months or more. See 20 C.F.R. § 404.1505(a). Two

physicians released Mr. Jaramillo to light or sedentary work in 1994. R. Vol. II at

194, 195. One physician noted that Mr. Jaramillo had a “certain amount of lack

of motivation” which he felt would impact the result should surgery be performed.

Id. at 219. Both the residual functional ability form of August 1996 (pre-surgery)

and the one of December 1997 (post-surgery) show that Mr. Jaramillo could

frequently lift ten pounds, occasionally twenty; he could sit and stand or walk for

about six hours and occasionally climb, balance, stoop, kneel, crouch, and crawl   .

Id. at 225, 256. The 1997 form relates that he had experienced a considerable

reduction in pain since the surgery.   Six months after his surgery, Mr. Jaramillo’s

surgeon opined that he was not yet able to return to work, although his “X-rays

look[ed] beautiful.” Id. at 279. Mr. Jaramillo testified that he drives to the

school where his wife works to have lunch with her, drives to the grocery store

and physical therapy where he walks on a treadmill and lifts weights everyday,

and goes to church every week. He mows the lawn twice a month, cleans, and

uses the computer an hour and a half a day. Before surgery, he was taking college

classes. He walks three quarters of a mile twice a day.




                                           -4-
      The record does not support Mr. Jaramillo’s testimony that he has to lie

down several times a day and that he cannot pick up anything weighing over

a pound. He also testified he can carry a three to four pound sack of grass

clippings and a sack of groceries. While, as Mr. Jaramillo argues, the ALJ must

consider his prior work history   as one factor in making his credibility

determination, see 20 C.F.R. § 404.1529(c)(3), that history does not outweigh

the record evidence supporting the ALJ’s conclusion that Mr. Jaramillo’s pain

testimony was not fully credible.

      Mr. Jaramillo contends the ALJ disregarded the VE’s testimony that he

could not work. The VE testified that under the hypothetical as set forth by the

ALJ, Mr. Jaramillo could perform light work. Mr. Jaramillo added to the

hypothetical by positing that he needed to lie down two to four times during

the work day. The ALJ did not accept this limitation. No error occurred.

See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions

need only reflect impairments and limitations supported by the record).

      As we affirm the ALJ’s determination that Mr. Jaramillo was not entitled to

benefits at any time, it follows that benefits for a closed period are inappropriate.




                                           -5-
     The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.


                                                  Entered for the Court



                                                  Deanell Reece Tacha
                                                  Chief Judge




                                       -6-
