F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 2, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
K A TH Y S. SWA N SO N ,
Plaintiff-Appellant,
v. No. 06-5024 (D.C. No. 04-CV-667-M ) JO A NN E B. BA RN HA RT, (N.D. Okla.) Commissioner, Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.
Kathy Sw anson appeals the district court’s order affirming the
Commissioner’s decision to withhold disability benefits. Sw anson argues that the
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation. Administrative Law Judge (ALJ), w ho found that “her limitations are not totally
credible,” Aplt. A pp., Vol. 2 at 27, failed to perform a proper credibility analysis.
W e agree, and we reverse and remand for further proceedings.
B ACKGROUND
At the time of the disability hearing, Sw anson was fifty-two years old. She
suffered from degenerative disc disease at C5-C6, lumbar scoliosis, narrowing of
the lumbosacral disc space, decreased range-of-motion in her right shoulder,
depression, mood swings, and panic attacks. Sw anson had also undergone three
unsuccessful surgeries to fuse the bones in her left ankle that were broken when a
house collapsed on her. In addition to headaches, Swanson suffered from pain in
her left ankle, lower back, and right shoulder. She testified that her pain is
constant, mostly in her ankle, and that her lower back pain radiates down her legs
when she bends over or exerts herself. Sw anson further testified that her
headaches occur frequently.
Regarding her limitations, Sw anson stated that she could not stand for ten
minutes without pain, could not sit for “very long,” id. at 328, could not walk
without pain, and that she could lift five pounds but it would make her shoulder
“burn,” id. at 333. As for her daily activities, Sw anson testified that she could do
laundry, but it was hard, that cleaning her bathtub caused pain in her back,
shoulder, and ankle, so she “let[s] it go,” id. at 336, that she could not perform
yard work, and that she could not concentrate to w atch a two-hour movie. There
-2- was also evidence that Sw anson cooks only one meal a day and drives to the
grocery store, but fears going inside.
A vocational expert (VE) testified that if Swanson were fully credible, she
would be unable to work.
The A LJ denied benefits at step four of the sequential evaluation process,
opining that Swanson “exaggerate[d] her symptoms to include disabling pain,”
id. at 25, that she possessed the residual functional capacity to perform medium
work, and that she could return to her past work as an herb grow er or a packager,
id. at 27. After the Appeals Council denied review, Sw anson filed a complaint
for judicial review in federal district court. Unsuccessful, Sw anson appealed.
D ISCUSSION
“W e review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.
2003). “Substantial evidence is adequate relevant evidence that a reasonable
mind might accept to support a conclusion.” Kepler v. Chater, 68 F.3d 387,
388-89 (10th Cir. 1995).
W hile a claimant’s credibility is generally an issue reserved to the ALJ, the
issue is reviewable to ensure that the underlying factual findings are “closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise
of findings.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)
-3- (quotation omitted). This court follows a three-pronged analysis for claims of
disabling pain: (1) the medical evidence must establish a pain producing
impairment; (2) there must be at least a loose nexus between the impairment and
the claimant’s subjective complaints of pain; and (3) the claimant’s pain must be
disabling in light of the objective and subjective evidence. See Kepler, 68 F.3d at
390. In determining the credibility of subjective pain testimony, relevant
considerations include “the levels of medication and their effectiveness, the
extensiveness of the attempts (medical or nonmedical) to obtain relief, the
frequency of medical contacts, the nature of daily activities, subjective measures
of credibility that are peculiarly within the judgment of the ALJ, the motivation
of and relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.”
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
The ALJ concluded that Sw anson’s claim of disabling pain failed for lack
of severity. Aplt. App., Vol. 2 at 25. He deduced that Sw anson was exaggerating
her symptoms because (1) she took only aspirin or ibuprofen; and (2) consulted
“her treating physician a few times and an orthopedic physician for the purpose of
documenting her condition rather than treatment.” Id. W e have cautioned,
however, that a claimant’s use of only aspirin is not a universally reliable gauge
of pain severity. For instance, the claimant may be unable to afford prescription
pain medication or may suffer undesirable side-effects. Huston, 838 F.2d at
-4- 1132-33 n.7. W e also made the same cautionary observation about a claimant
who fails or only infrequently seeks a physician’s advice. Id. Here, there is
evidence that Swanson could not “afford to see a Dr. & be treated,” Aplt. A pp.,
Vol. 2 at 157, and that she had not replaced her broken eyeglasses because she
lacked money, id. at 222. The A LJ apparently considered Swanson’s
impoverishment, but rejected its relevance, simply stating that “[t]here are public
facilities available to those who do not have insurance or who are unable to pay
for medical care.” Id. at 25. That reasoning is invalid, however, as it contravenes
our express recognition in Huston that affordability— rather than insignificancy of
pain— may explain a claimant’s use of non-prescription pain relievers or failure to
seek a physician’s advice.
In addition to the affordability issue, there is evidence in the record that
Swanson was “quite afraid” to attempt a fourth surgery on her ankle. Id.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 2, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
K A TH Y S. SWA N SO N ,
Plaintiff-Appellant,
v. No. 06-5024 (D.C. No. 04-CV-667-M ) JO A NN E B. BA RN HA RT, (N.D. Okla.) Commissioner, Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.
Kathy Sw anson appeals the district court’s order affirming the
Commissioner’s decision to withhold disability benefits. Sw anson argues that the
* 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. ** The Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation. Administrative Law Judge (ALJ), w ho found that “her limitations are not totally
credible,” Aplt. A pp., Vol. 2 at 27, failed to perform a proper credibility analysis.
W e agree, and we reverse and remand for further proceedings.
B ACKGROUND
At the time of the disability hearing, Sw anson was fifty-two years old. She
suffered from degenerative disc disease at C5-C6, lumbar scoliosis, narrowing of
the lumbosacral disc space, decreased range-of-motion in her right shoulder,
depression, mood swings, and panic attacks. Sw anson had also undergone three
unsuccessful surgeries to fuse the bones in her left ankle that were broken when a
house collapsed on her. In addition to headaches, Swanson suffered from pain in
her left ankle, lower back, and right shoulder. She testified that her pain is
constant, mostly in her ankle, and that her lower back pain radiates down her legs
when she bends over or exerts herself. Sw anson further testified that her
headaches occur frequently.
Regarding her limitations, Sw anson stated that she could not stand for ten
minutes without pain, could not sit for “very long,” id. at 328, could not walk
without pain, and that she could lift five pounds but it would make her shoulder
“burn,” id. at 333. As for her daily activities, Sw anson testified that she could do
laundry, but it was hard, that cleaning her bathtub caused pain in her back,
shoulder, and ankle, so she “let[s] it go,” id. at 336, that she could not perform
yard work, and that she could not concentrate to w atch a two-hour movie. There
-2- was also evidence that Sw anson cooks only one meal a day and drives to the
grocery store, but fears going inside.
A vocational expert (VE) testified that if Swanson were fully credible, she
would be unable to work.
The A LJ denied benefits at step four of the sequential evaluation process,
opining that Swanson “exaggerate[d] her symptoms to include disabling pain,”
id. at 25, that she possessed the residual functional capacity to perform medium
work, and that she could return to her past work as an herb grow er or a packager,
id. at 27. After the Appeals Council denied review, Sw anson filed a complaint
for judicial review in federal district court. Unsuccessful, Sw anson appealed.
D ISCUSSION
“W e review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.
2003). “Substantial evidence is adequate relevant evidence that a reasonable
mind might accept to support a conclusion.” Kepler v. Chater, 68 F.3d 387,
388-89 (10th Cir. 1995).
W hile a claimant’s credibility is generally an issue reserved to the ALJ, the
issue is reviewable to ensure that the underlying factual findings are “closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise
of findings.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)
-3- (quotation omitted). This court follows a three-pronged analysis for claims of
disabling pain: (1) the medical evidence must establish a pain producing
impairment; (2) there must be at least a loose nexus between the impairment and
the claimant’s subjective complaints of pain; and (3) the claimant’s pain must be
disabling in light of the objective and subjective evidence. See Kepler, 68 F.3d at
390. In determining the credibility of subjective pain testimony, relevant
considerations include “the levels of medication and their effectiveness, the
extensiveness of the attempts (medical or nonmedical) to obtain relief, the
frequency of medical contacts, the nature of daily activities, subjective measures
of credibility that are peculiarly within the judgment of the ALJ, the motivation
of and relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.”
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
The ALJ concluded that Sw anson’s claim of disabling pain failed for lack
of severity. Aplt. App., Vol. 2 at 25. He deduced that Sw anson was exaggerating
her symptoms because (1) she took only aspirin or ibuprofen; and (2) consulted
“her treating physician a few times and an orthopedic physician for the purpose of
documenting her condition rather than treatment.” Id. W e have cautioned,
however, that a claimant’s use of only aspirin is not a universally reliable gauge
of pain severity. For instance, the claimant may be unable to afford prescription
pain medication or may suffer undesirable side-effects. Huston, 838 F.2d at
-4- 1132-33 n.7. W e also made the same cautionary observation about a claimant
who fails or only infrequently seeks a physician’s advice. Id. Here, there is
evidence that Swanson could not “afford to see a Dr. & be treated,” Aplt. A pp.,
Vol. 2 at 157, and that she had not replaced her broken eyeglasses because she
lacked money, id. at 222. The A LJ apparently considered Swanson’s
impoverishment, but rejected its relevance, simply stating that “[t]here are public
facilities available to those who do not have insurance or who are unable to pay
for medical care.” Id. at 25. That reasoning is invalid, however, as it contravenes
our express recognition in Huston that affordability— rather than insignificancy of
pain— may explain a claimant’s use of non-prescription pain relievers or failure to
seek a physician’s advice.
In addition to the affordability issue, there is evidence in the record that
Swanson was “quite afraid” to attempt a fourth surgery on her ankle. Id. at 157.
Given three failed prior surgeries, such a fear might be quite genuine. See
Huston, 838 F.2d at 1132-33 n.7 (recognizing that “[s]ome who are disabled . . .
may have resisted medical help out of pride, fear, or other valid reasons”). The
ALJ did not, however, consider her fear of further surgery.
The ALJ also stated that he could not “verif[y] with any reasonable degree
of certainty” Swanson’s alleged limited daily activities and that
even if the claimant’s daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the
-5- relatively weak medical evidence and other factors discussed in this decision.
Aplt. A pp., Vol. 2 at 25-26. This statement is troubling for a number of reasons.
First, we are unaware of— and the Commissioner has not identified— any statute,
regulation, ruling or case law directing an ALJ to “verify” by a “reasonable
degree of certainty” whether a claimant’s daily limitations are as he or she
alleges. Objective verifiability is not the standard we have settled upon for
credibility issues. Rather, we have long insisted that ALJs rely on evidence that
is (1) “substantial”; and (2) “closely and affirmatively” linked to credibility.
Kepler, 68 F.3d at 391.
Second, we are at a loss as to what the ALJ meant by “other reasons” and
“other factors.” A plt. App., Vol. 2 at 26. If he meant that Swanson’s
daily-activity limitations were belied by her use of non-prescription pain relievers
and limited doctor visits, we have already noted the ALJ’s failure to consider
alternative plausible explanations. In any event, the ALJ’s lack of specificity
precludes effective review. See H ardm an v. Barnhart, 362 F.3d 676, 679
(10th Cir. 2004) (stating that “boilerplate language fails to inform us in a
meaningful, review able w ay of the specific evidence the ALJ considered in
determining that claimant’s complaints were not credible”); SSR 96-7p, 1996 W L
374186, at *2 (stating that the ALJ’s credibility reasoning “must be sufficiently
-6- specific to make clear to . . . any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for that weight”).
Third, the ALJ does not explain how he reached the conclusion that the
medical evidence in Sw anson’s case is “relatively weak.” Aplt. App., Vol. 2 at
26. Apart from the severity of her pain, all of Swanson’s conditions appear to be
medically documented. M oreover, a claimant’s “statements about the intensity
and persistence of pain or other symptoms or about the effect the symptoms have
on his or her ability to work may not be disregarded solely because they are not
substantiated by objective medical evidence.” SSR 96-7P, 1996 W L 374186, at
*1.
Because the ALJ applied incorrect legal standards in finding Sw anson not
credible and failed to articulate his reasoning with sufficient specificity, we
REVERSE the district court’s judgment and we REM AND this matter with
-7- instructions to remand, in turn, to the Commissioner for further proceedings
consistent with this order and judgment. 1
Entered for the Court
David M . Ebel Circuit Judge
1 W e are not persuaded that the ALJ erred by relying on the VE’s response to an incomplete hypothetical. Specifically, the VE responded to a hypothetical posed by the ALJ that lacked Sw anson’s moderate difficulties in maintaining concentration, persistence, or pace (CPP)— which refers to “the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings.” 20 C.F.R. pt. 404, subpt. P., App. 1, § 12.00(C)(3). “Testimony elicited by hypothetical questions that do not relate with precision all of a claimant’s impairments cannot constitute substantial evidence to support the Secretary’s decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted). W e conclude, however, that the ALJ adequately accounted for Swanson’s CPP difficulties by including within the hypothetical “m arked restrictions in the ability to understand, remember and carry out detailed instructions” and the ability “to perform simple, but not complex tasks under routine supervision.” Aplt. A pp., Vol. 2 at 357.
-8-