                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 11 1998
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JAMES E. SMITH,

                Plaintiff-Appellant,

    v.                                                    No. 97-7079
                                                    (D.C. No. CV-96-139-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



         James E. Smith appeals from an order of the district court affirming the

Commissioner’s decision denying his application for supplemental security


*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
income (SSI) and social security disability benefits. Mr. Smith filed for disability

and SSI benefits on September 29, 1991. He alleged disability based on back

problems and a left leg significantly shorter than his right leg. His applications

were denied initially and on reconsideration.

      Following a de novo hearing on May 7, 1993, an administrative law judge

(ALJ) determined that Mr. Smith was not disabled within the meaning of the

Social Security Act. The Appeals Council denied review, making the ALJ’s

decision the Commissioner’s final decision.

      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record viewed as a whole

and whether the correct legal standards were applied. See Andrade v. Secretary

of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453

(10th Cir. 1989) (quotations omitted).

      The Commissioner has established a five-step evaluation process for

determining whether a claimant is disabled within the meaning of the Social

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

(discussing five-step disability test). The claimant bears the burden of proving

his disability. See id. at 751. Once he has shown, however, that he cannot return


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to his past relevant work, the burden shifts to the Commissioner at step five to

prove that the claimant retains the residual functional capacity (RFC) to perform

other work that exists within the national economy. See id.

      The ALJ determined that Mr. Smith could not return to his past relevant

work. He concluded, however, that Mr. Smith retained sufficient RFC to perform

sedentary or light work which would allow him to sit or stand alternately

throughout the work day, which would require only infrequent bending, squatting,

crawling, and climbing and which would not require exposure to unprotected

heights, moving machinery, or driving. The ALJ applied the Medical-Vocational

Guidelines 20 C.F.R. pt. 404, Subpt. P, App. 2 (the grids) as a framework,

considered testimony from a vocational expert, and concluded that Mr. Smith

was not disabled within the meaning of the Social Security Act.

      In this appeal, Mr. Smith takes issue with the ALJ’s analysis of the

credibility of his complaint of disabling pain. Mr. Smith testified to constant

back and leg pain, only partially relieved by medication, which prevents him from

sitting still long enough to perform any type of work, and from walking for any

distance without a limp and without the assistance of a cane. The ALJ concluded

that while Mr. Smith does experience moderate back pain, his pain is not so

intense or severe as to prevent him from working.




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      Our cases set out a three-step inquiry concerning a claimant’s allegation of

disabling pain. Once a claimant has established the existence of a pain-producing

impairment, the ALJ must determine whether a loose nexus exists between the

proven impairment and the claimant’s subjective complaint. See Luna v. Bowen,

834 F.2d 161, 163 (10th Cir. 1987). If the ALJ finds that these two criteria are

met, as it appears that he did in this case, he must then review all of the evidence,

including the claimant’s subjective account of the severity of his pain, to

determine whether the pain is disabling. See id. In assessing the credibility of

the claimant’s subjective allegation of pain, the ALJ must consider such factors as

      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.

Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991); see also Luna, 834 F.2d

at 165-66.

      The ALJ has the duty to make adequate findings concerning his credibility

determination. It is not enough to merely recite the relevant factors in his

decision, followed by a conclusion. See Kepler v. Chater, 68 F.3d 387, 391

(10th Cir. 1995). He must explain “why the specific evidence relevant to each

factor led him to conclude claimant’s subjective complaints were not credible.”


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Id. Moreover, he may not rely on factors unsupported by the record; he must

consider all relevant factors which are supported by the record. See Winfrey v.

Chater, 92 F.3d 1017, 1020-21 (10th Cir. 1996).

      The ALJ here provided some specific reasons for discounting Mr. Smith’s

credibility. He stated he was

      convinced that the claimant exaggerates the severity of his condition.
      The claimant testified that he lies down for 3 to 4 hours a day,
      however, his hands and fingernails were dirty and he was a well
      tanned individual. A psychological evaluation performed in 1988,
      revealed the claimant tended to somatize (Exhibit 29). Moreover . . .
      the claimant testified at the hearing that he requires the use of a cane
      everywhere he walks. However, he was contacted by the Oklahoma
      State Agency in July 1990, at which time he professed to use a cane
      for walking only if he was on his feet for a long period of time. At
      that time the claimant stated that he was walking about two blocks
      a day for exercise and visited relatives on a daily basis. At the time
      the claimant stated his hobby was fishing and that he went several
      times a month.

Appellant’s App. Vol. II at 35.

      At least two of the ALJ’s stated reasons are unsupported by the record.

First, the mere fact that Mr. Smith’s pain has a somatic component does not

justify a finding that his complaint of pain is not credible. See Easter v. Bowen,

867 F.2d 1128, 1129-30 (8th Cir. 1989) (holding somatic contributions to pain

may be disabling in themselves). The ALJ was required to consider “the

possibility that psychological disorders combine with physical problems” in




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producing the claimant’s pain. Luna, 834 F.2d at 166. There is no indication

that he did so.

      Second, the medical evidence shows that Mr. Smith’s condition had

worsened considerably between the time of his application and the time of the

hearing. The ALJ did not explain why he rejected the obvious inference to be

drawn from this evidence--that Mr. Smith needed a cane more frequently by the

time of the hearing because his condition had worsened--in favor of his

conclusion that Mr. Smith was only pretending to need the cane more frequently.

      More serious is the ALJ’s failure to make specific analytical findings

concerning a number of factors which find support in the record. Although he

included a rote recitation of some of the criteria stated in 20 C.F.R. § 404.1529

and § 416.929, see Appellant’s App. Vol. II at 36, he did not follow this recital

with any specific analysis, and did not indicate what specific evidence he

considered relating to these factors to reach his conclusion. See Kepler, 68 F.3d

at 391 (requiring findings concerning specific evidence relating to factors

considered).

      As in Kepler, there is “evidence that could be viewed as supporting

claimant’s contention” that Mr. Smith suffers from disabling pain, 68 F.3d at 391:

he has consistently sought medical treatment, including two back surgeries; he

takes pain medication on a frequent basis; and the evidence indicates that even


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after the surgeries he may still be suffering from severe degeneration of his spine.

The ALJ’s rather superficial pain analysis does not include specific findings

addressing these factors. We must therefore remand for the ALJ to reconsider his

pain analysis and to make specific findings, in accordance with the pertinent

criteria identified in the regulations and our cases, concerning Mr. Smith’s claim

of disabling pain.

      Mr. Smith further complains that the ALJ failed to accord proper weight to

the opinion of his treating physician, Dr. Hinkle, concerning the severity of his

pain. The Commissioner argues that Dr. Hinkle was not a treating physician.

Although Dr. Hinkle’s reports mostly describe examinations of Mr. Smith, rather

than treatment, he did administer steroid injections and prescribe medications for

him. See Appellant’s App. Vol. II at 357, 387. On remand, the ALJ should

determine the nature of the physician-patient relationship between Dr. Hinkle and

Mr. Smith, and accord the doctor’s opinions concerning the disabling nature of

the claimant’s pain their appropriate weight. See 20 C.F.R. §§ 404.1527,

416.927.

      On remand, the ALJ should also consider the additional medical records

which Mr. Smith submitted to the Appeals Council, see O’Dell v. Shalala, 44 F.3d

855, 859 (10th Cir. 1994), and should obtain and consider any records from

Dr. Hendricks, not previously made part of the record, which may bear upon this


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issue. Because there is a separate basis for remand, we need not decide whether

the Appeals Council’s failure to supplement the record with Dr. Hendricks’s

records would, standing alone, constitute reversible error, particularly in light

of Mr. Smith’s previous counsel’s representations that he would furnish those

records to the Appeals Council and his subsequent apparent failure to do so.

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

of Oklahoma is REVERSED and REMANDED for further proceedings in

accordance herewith.



                                                     Entered for the Court


                                                     Carlos F. Lucero
                                                     Circuit Judge




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