                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 18 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    LEROY A. ROMERO,

                Plaintiff-Appellant,

    v.                                                   No. 99-2141
                                              (D.C. No. CIV-97-1196-BB/WWD)
    KENNETH S. APFEL, Commissioner,                       (D. N.M.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff seeks review of the decision of an administrative law judge (ALJ)

finding him disabled as of March 28, 1994, at step three of the controlling

analysis (Listed Impairment 1.05(C) (vertebrogenic disorders), 20 C.F.R. Pt. 404,

Subpt. P, App. 1), but not disabled before that date. The Appeals Council denied

review, making this the final decision of the Commissioner.         In this appeal from

the district court judgment affirming the Commissioner, we are concerned only

with whether plaintiff was disabled under step five sometime prior to March of

1994. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988)

(describing sequential evaluation process). For reasons discussed below, we

reverse and remand for further administrative proceedings.

                                   Disability Claim

      Plaintiff claims he has been disabled since November 15, 1990, following

back injuries sustained in February of 1989 and March of 1990. He was

diagnosed as having two herniated disks, one at L4-5 (moderate left sided disk

herniation with left L5 nerve root compression of moderate severity) and one at

L5-S1 (small central and anterior herniation with bony osteophytes, minimal

thecal sac impingement, indefinite neural compression and no stenosis).          He was

initially treated with physical therapy and anti-inflammatories. He also tried a

TENS unit and chiropractic treatment. In February of 1991, he received an

epidural steroid injection, which provided some temporary relief.         He was


                                           -2-
prescribed Dolobid for pain in March, and given Clinoril, a nonsteroidal

anti-inflammatory, in April.     In June of 1991, he had a   CT diskography at L4-5

and L5-S1, in an attempt to determine the source of his low back pain and

occasional numbness in his left leg.     The diskography showed right L4-5 and left

L5-S1 disk protrusion with nerve root impingement. However, his doctors did not

consider him a good surgical candidate at that time.

       Although plaintiff did not return to his initial treating physicians after May

of 1992, he was seen frequently at the Truchas Clinic beginning in April of 1993.

During this time he complained of back pain (described in the clinic notes as

chronic), left leg numbness and pain, dizziness and headaches. He was prescribed

Feldene for pain, as well as Elavil and Amitriptyline, both antidepressants.    He

was referred to Dr. Venkat Narayan for further evaluation on March 28, 1994, and

one month later underwent a lamenectomy and L4-5 diskectomy. That surgery,

and his status thereafter, led to his being found categorically disabled under the

step three listings as of March 28, 1994.

                               Administrative Proceedings

       This case has been heard three times by two different ALJs. Following the

first unfavorable decision by ALJ Connor in February 1993, the Appeals Council

vacated and remanded the matter primarily because the ALJ had failed to evaluate

both medical and nonmedical evidence in determining the credibility of plaintiff’s


                                             -3-
pain and other subjective complaints. The Appeals Council also acknowledged

the introduction of some new evidence suggesting a possible mental impairment.

The Appeals Council accordingly remanded the case, directing the ALJ to obtain

additional evidence concerning plaintiff’s mental impairment, to evaluate the

credibility of plaintiff’s subjective complaints within appropriate guidelines, to

further consider plaintiff’s residual functional capacity, and to obtain vocational

evidence to determine the effects of any exertional or nonexertional limitations on

plaintiff’s occupational base.   See generally Appellant’s App., Vol. II at 288-89.

       After ALJ Connor issued a second unfavorable decision in August of 1994,

the Appeals Council vacated and remanded the matter to a different ALJ (Boltz).

While holding that the medical evidence of plaintiff’s pre-surgical condition did

not satisfy Listing 1.05(C), the Appeals Council directed ALJ Boltz to determine

whether plaintiff’s condition met the listing after the April 1994 surgery–which

ALJ Connor’s decision had not addressed. More generally, the Appeals Council

also directed ALJ Boltz to obtain evidence about plaintiff’s back impairment to

complete the administrative record, to further consider plaintiff’s residual

functional capacity and, if needed, to obtain additional vocational evidence.   See

generally id. at 344-45.

       Following a third hearing, ALJ Boltz disagreed with ALJ Connor’s prior

decision and found plaintiff disabled at step three under Listing 1.05(C) as of


                                            -4-
March 28, 1997. However, in determining that plaintiff was not disabled before

that date under the more general medical-vocational assessment at step five, ALJ

Boltz adopted the pertinent findings of ALJ Connor, which he expressly found

“no reason to change.”   1
                             See Appellant’s App., Vol. I at 106, 108.

                                   Review Standards

       We review the Commissioner’s decision “to determine whether substantial

evidence supports that decision and whether the applicable legal standards were

applied correctly.”   Shepherd v. Apfel , 184 F.3d 1196, 1199 (10th Cir. 1999).

“[A]ll of the ALJ’s required findings must be supported by substantial evidence,”

Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999), and all of the relevant

medical evidence of record must be considered in making those findings,    see

Baker v. Bowen , 886 F.2d 289, 291 (10th Cir. 1989). “[I]n addition to discussing

the evidence supporting his decision, the ALJ must discuss the uncontroverted

evidence he chooses not to rely upon, as well as significantly probative evidence

he rejects.”   Clifton v. Chater , 79 F.3d 1007, 1010 (10th Cir. 1996). Thus, while



1
       The Appeals Council’s remand for consideration of step three disability
after surgery did not constrain ALJ’s Boltz’s consideration of pre-surgery
disability at step five–especially given the new evidence relevant to the issue.
See Campbell v. Bowen , 822 F.2d 1518, 1521-22 (10th Cir. 1987) (recognizing
ALJ’s authority to make any determination not inconsistent with terms of Appeals
Council remand); accord Houston v. Sullivan , 895 F.2d 1012, 1015 (5th Cir.
1989) (“Once the case was remanded to the ALJ to gather more information about
the extent of [claimant’s] disability, the ALJ was free to reevaluate the facts.”).

                                            -5-
we do not reweigh the evidence or try the issues de novo,   see Sisco v. United

States Dep’t of Health & Human Servs.     , 10 F.3d 739, 741 (10th Cir. 1993), we

meticulously examine the record as a whole, including anything that may undercut

or detract from the ALJ’s findings, in order to determine if the substantiality test

has been met. See Washington v. Shalala , 37 F. 3d 1437, 1439 (10th Cir. 1994).

                                        Analysis

       The issue before us is whether that portion of ALJ Boltz’s decision finding

plaintiff not disabled at step five prior to March 1994 is based upon substantial

evidence correctly assessed under the controlling legal standards. We conclude it

is not. ALJ Boltz improperly adopted critical credibility findings made by ALJ

Connor which were in fact refuted by the developed record then available to ALJ

Boltz, and ALJ Boltz’s own conclusory credibility pronouncement, itself clearly

inadequate under our case law, did not cure the error. We must therefore reverse

the denial of benefits and remand the case for further proceedings consistent with

the principles discussed below.

       ALJ Boltz’s decision stands as the final determination of the Commissioner

in this proceeding,   see Campbell , 822 F.2d at 1520, and, thus, “it is [ALJ Boltz’s]

decision and the evidence which was before [him] which is before us on review,”

Wolfe v. Shalala , 997 F.2d 321, 322 & n.3 (7th Cir. 1993). Consequently, while

the incompleteness of the evidentiary record available to ALJ Connor may explain


                                           -6-
some of her factual misstatements, the decision under review must be assessed in

light of the evidence available to ALJ Boltz when he adopted such inaccuracies as

his own findings.

       ALJ Connor found plaintiff’s pain complaints not credible because,       inter

alia , (1) plaintiff had not sought medical treatment for nearly two years after May

1992; (2) the medical record belied his claim that certain medications had been

prescribed for him; (3) he had not followed through with a referral for further

evaluation in March 1994; and (4) his testimony at the first hearing contradicted

his later assertion by affidavit that he needed to lie down several times a day to

relieve his back pain. The first three grounds are flatly contradicted by evidence

subsequently provided to ALJ Boltz, and the fourth is simply a misreading of the

pertinent testimony by ALJ Connor. Subsequently located notes from the Truchas

Clinic, see Appellant’s App., Vol II at 400-06, showed (1) frequent visits by

plaintiff throughout 1993 for complaints of chronic back pain, headaches, left leg

pain and numbness, and dizziness; (2) a number of medications, including

anti-inflammatories and antidepressants, were prescribed for plaintiff; (3) he did

indeed follow through with the March 1994 referral, which led directly to the

surgery he underwent the next month. Finally, the transcript of the first hearing

reflects that when asked what he did all day, plaintiff testified that “sometimes, I,

I just go to bed. I just lie down or walk around the house . . . .”   See id. at 424.


                                              -7-
He specifically affirmed he had “to lay down during the daytime,” and          said he

sometimes had to stay in bed all evening.     Id. at 430. This testimony is not

contradicted by his later averments by affidavit,   see id. at 312, which merely

provided more detail regarding the frequency of his stated need to lie down during

the day to relieve pain.   2



       The impact of these errors on the assessment of plaintiff’s credibility was

substantial. By adopting ALJ Connor’s findings, ALJ Boltz effectively ignored

plaintiff’s consistent long-term efforts to seek medical treatment for his back pain

(culminating in surgery and resultant disability under the step three listings), and

discounted pertinent medications prescribed by plaintiff’s treating physicians.

These are two of the primary factors to be considered whenever the credibility of

pain allegations is in issue.   See Thompson v. Sullivan , 987 F.2d 1482, 1489

(10th Cir. 1993); see also Qualls v. Apfel , 206 F.3d 1368, 1372-73 (10th Cir.

2000). Further, we are not concerned here with the mere oversight of some

marginal or cumulative evidence. ALJ Connor         affirmatively discounted     plaintiff’s

credibility because she mistakenly thought he had made no effort to seek medical


2
       We note the Appeals Council’s first remand specifically contemplated
further assessment of plaintiff’s need to lie down because of back pain,       but ALJ
Connor did not allow him to testify at the second hearing (except briefly to
explain his duties as a firefighter).    This necessitated plaintiff’s use of affidavits
to provide the added detail which, based on the ALJ’s mistaken recollection of his
testimony many months earlier, she incorrectly rejected on grounds of
inconsistency.

                                            -8-
attention for a lengthy period of time, had misrepresented his prescribed

medications, and had given inconsistent testimony about the daily effects of his

condition. In light of the evidence refuting these crucial factual presuppositions,

ALJ Boltz could not properly dispose of plaintiff’s disability claim by summarily

adopting ALJ Connor’s credibility findings.

       Nor can ALJ Boltz’s disposition properly rest on his own finding that

plaintiff’s “testimony of subjective complaints and functional limitations,

including pain, was not supported by the evidence as a whole in the disabling

degree alleged and therefore lacked credibility.” Appellant’s App., Vol. I at 111.

This generic recitation is precisely the type of “conclusion in the guise of

findings” rejected in Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995), and

many cases since. Such boilerplate language fails to inform us in a meaningful,

reviewable way of the specific evidence the ALJ considered in determining that

plaintiff’s complaints were not credible.    See id.

                                       Conclusion

       The inconsistencies between the record evidence and the credibility

findings discussed above are fatal to the decision under review. “Because a

credibility assessment requires consideration of all the [pertinent] factors ‘in

combination,’ . . . when several of the factors relied upon by the ALJ are found to

be unsupported or contradicted by the record, this court is precluded from


                                            -9-
weighing the remaining factors to determine whether they, by themselves, are

sufficient to support the ALJ’s credibility determination.”    Robinson v. Apfel ,

No. 98-5073, 1999 WL 74025, at **3 (10th Cir. Feb. 17, 1999) (citing       Huston v.

Bowen , 838 F.2d 1125, 1132 n.7 (10th Cir. 1988)). We must therefore remand

the case for reconsideration of plaintiff’s disability due to pain prior to March 28,

1994, when his condition became severe enough to render him disabled under the

listings at step three.

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

New Mexico is REVERSED, and the matter is REMANDED to the district court

with directions to remand, in turn, to the Commissioner for further proceedings

consistent with this order and judgment.



                                                        Entered for the Court



                                                        Wade Brorby
                                                        Circuit Judge




                                            -10-
