                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 16 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LOUIS L. PEEK,

                Plaintiff-Appellant,

    v.                                                   No. 96-5232
                                                    (D.C. No. 95-CV-714-J)
    JOHN J. CALLAHAN, Acting                              (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before EBEL, HENRY, 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. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 appeals from the district court’s order affirming the decision of the

Commissioner of Social Security denying his application for supplemental

security income benefits. We exercise jurisdiction under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291 and affirm.

      Plaintiff alleges disability since July 22, 1993, primarily due to pain and

other problems associated with a frequently dislocated left shoulder. After

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

of the five-step sequential evaluation process, see 20 C.F.R. § 416.920, and after

placing the burden of proof on the Commissioner, see Ragland v. Shalala,

992 F.2d 1056, 1057 (10th Cir. 1993), that although plaintiff has a severe

dislocation of his left shoulder, he has the residual functional capacity to perform

the full range of sedentary work and his testimony was credible to the extent it

was consistent with the performance of sedentary work, see II Appellant’s App. at

18. The ALJ therefore concluded plaintiff is not disabled. When the Appeals

Council denied plaintiff’s request for review, the ALJ’s decision became the final

decision of the Commissioner. Plaintiff sought judicial review in the district

court, and the parties consented to assignment of the case to the magistrate judge,

who affirmed the decision of the Commissioner. This appeal followed.

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

supported by substantial evidence and whether the [Commissioner] applied the


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correct legal standards.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.

1994). Substantial evidence is “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Richardson v. Perales,

402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).

      On appeal, plaintiff argues that there is not substantial evidence to support

the ALJ’s determination that he has the capacity to perform a full range of

sedentary work, because the ALJ failed to properly consider his postural and

manipulative limitations and his pain as nonexertional impairments. In failing to

consider these, plaintiff further argues that the ALJ improperly relied on the

Medical-Vocational Guidelines (grids) without calling a vocational expert to

testify. Additionally, plaintiff alleges that the district court erred in rejecting his

subjective complaints of pain and Dr. Davis’ opinion that without surgery he is

unemployable and totally disabled. He also contends that the district court’s

decision that he could perform sedentary work was conclusory and based on the

absence of “contraindication” rather than on specific evidence.

      Contrary to plaintiff’s argument, the ALJ did address the nonexertional

impairments implicated by plaintiff’s recurrent shoulder dislocation. The medical

evidence indicates, as the ALJ mostly set forth, see II Appellant’s App. at 15, that

plaintiff can manipulate small objects, effectively grasp tools, and perform fine


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and gross manipulation with both hands, even though he has reduced grip strength

in his left hand, cannot lift very much with his left shoulder, and has a limited

range of motion in his left shoulder, see id. at 136, 139. These limitations are

within the definition of sedentary work, which involves lifting no greater than ten

pounds and occasionally lifting or carrying objects such as docket files, ledgers,

and small tools. See 20 C.F.R. § 416.967(a).

      The evidence, including plaintiff’s testimony, also establishes that he does

not have significant shoulder pain at times other than when his shoulder is

dislocated. Plaintiff takes no pain medication regularly; rather, he had taken

medication prescribed by emergency room doctors only after a shoulder

dislocation. His activities do not suggest that he experiences significant pain. He

testified that he picks up lumber with his right hand and rakes small piles and puts

them in bags. See II Appellant’s App. at 40; see also id. at 45 (testimony of

plaintiff’s friend that he does some yard work). He also testified that he has

limited use of his left arm. See id. at 34. The ALJ did not minimize the

discomfort plaintiff experiences when his shoulder is dislocated, but the ALJ

noted that plaintiff need not be pain free to have the ability to engage in

substantial gainful employment and that the medical findings the ALJ set forth

did not establish a condition likely to produce the amount of pain alleged. Thus,

no evidence indicates that pain precludes plaintiff from performing a full range of


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sedentary work. Because the ALJ’s credibility findings regarding pain are closely

and affirmatively linked to substantial evidence and are not merely conclusory,

see Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988), we defer to those

findings, see Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).

      The only evidence contrary to a determination that plaintiff can perform a

full range of sedentary work is Dr. Davis’ opinion. Dr. Davis indicated that

plaintiff could not work. His handwritten note, however, is brief, conclusory, and

unsupported by any medical evidence. See II Appellant’s App. at 146. The

district court therefore correctly gave little weight to Dr. Davis’ opinion that

plaintiff was unemployable and disabled. See Castellano v. Secretary of Health &

Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994).

      The ALJ’s decision that plaintiff can perform a full range of sedentary

work was not based on “contraindication,” but rather was based on the medical

evidence presented and on an appropriate credibility assessment of plaintiff’s

complaints. Because the ALJ’s decision is supported by substantial evidence, see

Gay v. Sullivan, 986 F.2d 1336, 1339 (10th Cir. 1993), we conclude the ALJ

correctly determined that plaintiff can perform a full range of sedentary work.

      We also conclude the ALJ correctly relied on the grids without calling a

vocational expert after finding that plaintiff did not have significant nonexertional

impairments and could perform a full range of sedentary work. See Thompson v.


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Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (mere presence of nonexertional

impairment does not preclude reliance on grids if nonexertional impairment would

not impair plaintiff’s ability to work). Even though the ALJ had given

notification of the hearing to a vocational expert, who failed to attend the hearing,

vocational testimony was unnecessary. Merely notifying a vocational expert to be

available to testify did not prove a need for such testimony.

      Although the record indicates that plaintiff would benefit from shoulder

surgery and that his shoulder continues to dislocate from time to time, the record

also indicates that plaintiff is able to perform a full range of sedentary work

without surgery. That surgery may prevent plaintiff’s shoulder from dislocating

as easily as it does now is not sufficient to establish plaintiff cannot perform

sedentary work.

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

of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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