                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 31 1999
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMES R. GRIFFITH,

                Plaintiff-Appellant,

    v.                                                   No. 98-5076
                                                   (D.C. No. 96-CV-446-EA)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT          *




Before BALDOCK , BARRETT , 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      This order and judgment is not binding precedent, except under the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.
      Claimant James R. Griffith appeals the district court’s order 1 affirming the

Commissioner’s decision to deny his application for social security disability

benefits. He alleges disability since August 1, 1989 due to back pain, diabetes,

and foot pain and numbness. The parties agree that Mr. Griffith’s insured status

expired on September 30, 1994, so he must establish his disability prior to that

date. See Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996). Following an

administrative hearing before an administrative law judge, the Commissioner

determined at step five of the five-step analysis, see Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988) (discussing five steps), that Mr. Griffith could

perform a full range of sedentary work and, therefore, he was not disabled within

the meaning of the Social Security Act. On appeal, Mr. Griffith contends that (1)

the ALJ did not evaluate properly his claims of disabling pain, (2) the ALJ

improperly based his decision on a lack of medical evidence that Mr. Griffith was

required to elevate his feet while sitting, (3) the ALJ failed to shift the burden to

the Commissioner at step five, and (4) the ALJ considered medical reports written

before Mr. Griffith’s back surgery to discount his claims of disabling pain

following the surgery.

      We review the Commissioner’s decision to determine whether it is

supported by substantial evidence and whether correct legal standards were


1
      The parties proceeded before a magistrate judge.     See 28 U.S.C. § 636.

                                          -2-
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).

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

accept as adequate to support a conclusion.’” Soliz v. Chater, 82 F.3d 373, 375

(10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)

(further quotation omitted)). We may neither reweigh the evidence nor substitute

our judgment for that of the Commissioner. See Casias v. Secretary of Health &

Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

       Mr. Griffith complains that the ALJ improperly discounted his claim that he

must elevate his feet while sitting. He relies on a November 4, 1993 report by

Dr. Denton. See Appellant’s App. vol. II, at      162. Later reports by Dr. Malavolti,

the treating podiatrist, however, do not indicate that Mr. Griffith must elevate his

feet, only that he not do a job requiring him to stand for prolonged periods.     See

id. at 255-56. Mr. Griffith argues that the ALJ relied on a lack of evidence to

reject his claim that he must elevate his feet based on the fact that Dr. Malavolti

did not impose such a requirement. The treating podiatrist’s failure to restrict

Mr. Griffith’s ability to sit is not a lack of evidence; rather, it indicates that the

podiatrist imposed no limitations other than those specifically described. Based

on our review of the record, we determine that the ALJ complied with the

requirements of Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995), to consider

the proper factors and adequately explain the reasons for discounting


                                            -3-
Mr. Griffith’s claims that he must elevate his feet and alternate sitting and

standing every forty-five minutes due to back and foot pain.       See Appellant’s

App. vol. II, at 21-22.

       Mr. Griffith also argues that the ALJ erred in finding him capable of

performing a full range of sedentary work and in failing to recognize that at step

five the burden shifts to the Commissioner to demonstrate that a claimant can

perform other jobs that exist in sufficient numbers in the national economy.       See

Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998). The ALJ clearly shifted

the burden to the Commissioner.        See Appellant’s App. vol. II, at 23.

       Mr. Griffith asserts that the ALJ relied on medical evidence from       before his

back surgery to discount his claim of disabling pain      after the surgery. He

maintains that only the back surgeon’s opinions following his September 1994

surgery are relevant. Those opinions, however, indicate that Mr. Griffith’s back

pain subsided following the surgery,      see Appellant’s App. vol. II, at 179, and the

ALJ considered those opinions,     see id. at 21. The ALJ did not commit reversible

error. The record contains substantial evidence to support the Commissioner’s

determination that Mr. Griffith was not disabled within the meaning of the Social

Security Act prior to the expiration of his insured status.




                                             -4-
     The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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