                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 27 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    PALECIA R. ROUNDTREE,

                Plaintiff-Appellant,

    v.                                                   No. 98-6365
                                                   (D.C. No. CIV-96-1857-T)
    KENNETH S. APFEL, Commissioner,                      (W.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , McKAY , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
         Claimant Palecia R. Roundtree 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

made under Title II of the Social Security Act.    See 42 U.S.C. § 423. 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 (“ALJ”) properly considered claimant’s complaints of

cervical pain when determining that she had no nonexertional impairments at the

sedentary level of activity and in determining her residual functioning capacity

(“RFC”). The second is whether the ALJ demonstrated that he had considered all

the medical evidence that supported claimant’s allegations of disability. In our

review, we determine 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 Servs.      , 933 F.2d 799, 800-01 (10th Cir.

1991).

         Claimant alleges disability due to pain in her back, neck, and shoulder

resulting from strains and sprains suffered at work. Claims for disability benefits

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

§ 404.1520. See Williams v. Bowen , 844 F.2d 748, 750 (10th Cir. 1988). At step

five of this process, the ALJ found that claimant had the RFC to perform


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sedentary work that allowed for alternate sitting and standing. He discredited

claimant’s subjective complaints of disabling pain, analyzing them in accordance

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

       Claimant maintains that the ALJ discussed only one factor in making his

credibility determinations--her daily activities. This assertion is clearly belied by

the written decision. There, the ALJ noted that claimant’s complaints of

disabling pain were not consistent with the amount or type of pain medication she

was taking; that she had been discharged from physical therapy for failure to

attend the sessions; that her treating neurosurgeon had determined that she could

resume work; that her diagnoses were of mild cervical and lower back strains;

that she regularly drove, did laundry, and cooked, and that she had not sought

treatment for pain in almost two years.      See Appellant’s App. Vol. II at 39-40.

The ALJ’s credibility finding is supported by substantial evidence. “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).

       Claimant next asserts that the ALJ erroneously concluded that claimant’s

“testimony regarding her back impairment was credible but her testimony

regarding her cervical impairment was not.” Appellant’s Br. at 6. We have

carefully reviewed the ALJ’s decision and can find no such conclusion. Claimant


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also argues that the ALJ’s analysis is internally inconsistent because he concluded

that she had a severe cervical impairment “and then accorded no limitations to it

when assessing her RFC.”     Id. We disagree. Claimant herself testified that her

neck impairment had improved and was no longer her primary impairment, that

she suffered from some muscle spasms two or three times a week, when she held

her neck in one place for a long time, such as when reading or watching TV, and

that the spasms were relieved by doing neck exercises or using a heating pad.       See

Appellant’s App. Vol. II at 173-74. Thus, claimant did not allege that her neck

and shoulder pain were constant or severe. Complaints of pain are considered to

be nonexertional limitations only when they “    significantly limit [the] ability to

perform the full range of work in a particular RFC category on a sustained basis.”

Williams , 844 F.2d at 752 (emphasis added) (quotation omitted). The ALJ gave

claimant’s complaints of pain some credence in that he determined that pain

limited her to doing sedentary work with the additional limitation of being

allowed to move around. He ultimately concluded, however, that her pain was not

disabling. This conclusion comports with the applicable social security law. 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). We have carefully reviewed


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claimant’s medical records, and the ALJ’s conclusions are supported by

substantial evidence.

      Claimant alleges that the ALJ erred by failing to discuss Dr. Griffith

Miller’s report concerning claimant’s neck and shoulder impairment, in which he

opined that she had a 53% total impairment to the body due to a decreased range

in cervical motion; six months of “documented” muscle spasms, pain, and

rigidity; shoulder injury; and radiculopathy in the left arm with numbness, pain,

and marked weakness.    See Appellant’s App. Vol. II at 160;   see also Clifton v.

Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (stating that ALJ must consider

all evidence and must discuss any significantly probative evidence he rejects or

uncontroverted evidence he chooses not to rely on, but does not have to discuss

every piece of evidence). Dr. Miller was a consultative physician hired by

claimant to examine her on April 15, 1993, for preparation of a report for her

worker’s compensation claim.

      A review of the medical records shows that Dr. Miller’s report is not

consistent with the reports of claimant’s treating physicians or even with the facts

of her injury, which occurred on December 24, 1992. It is difficult to see how

there could be six months of documented muscle spasm, pain, and rigidity arising

from an injury that had occurred only four months previously. Further, Dr.

Harvey, who initially treated claimant for two weeks, reported no muscle


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spasm--his examination “revealed only tenderness over the [left] scapula.”

Appellant’s App. Vol. II at 106. While Dr. Miller estimated her impairment

rating for the cervical area based on range of motion to be 12%, Dr. Reynolds, her

treating neurologist, gave her an impairment rating of only 3% in a report dated

April 16 that was based on his April 5 examination. Dr. Miller reported

claimant’s cervical flexion and extension as 30 and 35 degrees, respectively,

while Dr. Reynolds found both to be 60 degrees. There were similar

discrepancies between the lateral cervical flexion and rotation measurements. Dr.

Miller reported “marked” left arm muscle weakness; Dr. Reynolds reported

muscle strength of 5/5 in all muscle groups.     Compare id. at 160 with id. at

136-37.

      Dr. Miller reported a 20% impairment based on left arm radiculopathy, but

Dr. Rice, an orthopedic specialist who also had examined her, found that she had

no “true radicular type symptoms.” Dr. Miller found an impairment of 12% based

on left shoulder injury, but Dr. Rice determined that she had no symptoms

suggesting rotator cuff injury, that her problem sounded “mainly muscular,” and

that she had normal range of motion in her shoulder, no loss of strength, and no

crepitation. Compare id. at 160 with id. at 143. We agree with the district court

that claimant has failed to show that Dr. Miller’s findings were either

“uncontroverted” or “significantly probative” as to require specific discussion.


                                           -6-
See id. Vol. I at 12 (quoting Clifton , 79 F.3d at 1009-10). The ALJ did not err in

failing to discuss Dr. Miller’s report.

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

Oklahoma is AFFIRMED .



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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