                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 17 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    REBECCA L. SMITH,

                Plaintiff - Appellant,

    v.                                                  No. 02-3193
                                                 (D.C. No. 01-CV-2431-KHV)
    JO ANNE B. BARNHART,                                 (D. Kansas)
    Commissioner, Social Security
    Administration,

                Defendant -Appellee.


                             ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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.
       Rebecca L. Smith appeals from the district court’s ruling affirming

appellee’s denial of Social Security disability insurance benefits. Claimant

applied for benefits in 1998, alleging disability as of November 25, 1997, due to

severe shoulder and neck pain, numbness in her right hand and pain in her knees.

Her application was denied initially and upon reconsideration. At a hearing

before an administrative law judge (ALJ), claimant and her husband testified,

along with a vocational expert (VE). The ALJ concluded that claimant was not

disabled. In reaching this conclusion, the ALJ discounted a residual functional

capacity (RFC) assessment by one of claimant’s treating physicians, Dr. McKee,

and concluded that neither claimant nor her husband were fully credible in their

testimony at the hearing.

       To qualify for disability insurance benefits, claimant must demonstrate an

“inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The agency has established

a five-step sequential test for evaluating disability.   See 20 C.F.R. § 404.1520;

Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five steps).

Applying the first four steps of the test, the ALJ in this case determined that

claimant was not presently engaged in any substantial gainful activity; claimant


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had severe impairments, but they did not meet any of the listings; and claimant’s

impairments prevented her from returning to her past relevant work. These

conclusions are not at issue on appeal.

       Because claimant bore her burden of proof on the first four steps, she

established a prima facie case of disability.         Williams , 844 F.2d at 751. The

burden of proof shifted to the agency at step five to show that claimant retained

the RFC to “perform an alternative work activity and that this specific type of job

exists in the national economy.”     Id. (quotation omitted). Here, after rejecting

Dr. McKee’s assessment and the testimony of both claimant and her husband, the

ALJ concluded that claimant retained the RFC to perform certain jobs enumerated

at the hearing by the VE, specifically surveillance system monitor, information

clerk, and photocopy machine operator.

       On appeal, claimant presents three arguments challenging the ALJ’s

decision. She contends that 1) the ALJ wrongly rejected her credibility merely

because the severity of her alleged pain and limitations were not fully

corroborated by medical evidence; 2) the ALJ erred in failing to give controlling

weight to Dr. McKee’s RFC assessment; and 3) the requirements of the jobs listed

by the VE at the hearing are inconsistent with the RFC the ALJ concluded

claimant retained. Our review is limited to determining whether the ALJ’s

findings are supported by substantial evidence and whether he applied the correct


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legal standards.   White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001).

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

as adequate to support a conclusion.”      Id. (quotations omitted). This court will

not reweigh the evidence as it evaluates the record, nor will it substitute its

judgment for that of the agency.     Id. (quotation omitted). “Failure to apply the

correct legal standard or to provide this court with a sufficient basis to determine

that appropriate legal principles have been followed is grounds for reversal.”

Williams , 844 F.2d at 750 (quotations omitted).

       “An ALJ is required to give controlling weight to a treating physician’s

well-supported opinion, so long as it is not inconsistent with other substantial

evidence in the record.”    McGoffin v. Barnhart , 288 F.3d 1248, 1252 (10th Cir.

2002) (quotation omitted). If the ALJ rejects the treating physician’s opinion,

he must state specific, legitimate reasons for doing so.    Drapeau v. Massanari ,

255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted). Here, in light of the

record medical evidence, we conclude that the ALJ failed to provide such reasons.

       Dr. McKee’s assessment was completed on a form which asked for both

functional limitations and the medical findings which supported each particular

limitation or set of limitations. Dr. McKee indicated what he concluded were

claimant ’s limitations and noted as supporting findings severe muscle spasms in

the cervical, trapezius, and paraspinal muscles, degenerative changes shown on


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claimant ’s cervical X-rays, and myofascial pain. He noted the presence of both

cervical and back pain, and, specifically, that examination had shown

degenerative changes in   claimant ’s cervical spinal fluids. At the end of the form,

Dr. McKee wrote a paragraph which stated that claimant had gone through a

complete work up and treatment for her chronic myofascial pain syndrome, which

included multiple modalities of treatment. He noted that the results were

disappointing. The ALJ rejected this assessment because, he stated, it was not

supported by any objective medical evidence or clinical findings. He

characterized the medical evidence as establishing only mild arthritic changes

resulting in some range of motion limitations, but few additional symptoms.

      Our review of the record indicates otherwise.    Claimant ’s medical record

contains many findings and diagnoses other than mild arthritic changes. At

various times, her treating and examining physicians have concluded that she has

1) mild or greater central spinal stenosis at C5-6 secondary to a small or moderate

ventral bulging disc; 2) a bone spur, resulting in marked attentuation of the

cervical chord; 3) adjustment reaction with mixed emotions secondary to chronic

pain; 4) musculoskeletal neck pain; 5) cervical radiculopathy; 6) myofascial pain

with evidence of thoracic outlet syndrome; 7) cervical spasm and right arm

parathesias of unknown origin, 8) possible fibromyalgia; 9) degenerative arthritis,

10) chondromalicia patella; 11) chronic myofascial pain; 12) tension headaches;


                                          -5-
12) lateral epicondylitis bilaterally; and 13) peripheral nerve entrapment. None of

the supporting medical findings Dr. McKee noted in his RFC assessment are, as

the ALJ claimed, inconsistent with the medical record as a whole. Accordingly,

the ALJ’s reason for rejecting Dr. McKee’s assessment is not substantiated in the

record and must be reversed.

       Although this error by itself requires reversal, we feel compelled to

comment about the ALJ’s credibility determinations, on which he relied to reject

claimant ’s allegations of disabling pain and other limitations. The ALJ concluded

that claimant’s subjective complaints were not credible because her allegations

were exaggerated and refuted by the objective medical evidence; she appeared

histrionic at the hearing; her daily activities were inconsistent with her

allegations; and she had a sporadic work history. We recognize that credibility

determinations are “peculiarly the province of the finder of fact,”    Kepler v.

Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted), and we cannot

review the ALJ’s observations or opinion of       claimant ’s demeanor at the hearing.

Nonetheless, we conclude that the record does not support the balance of the

reasons given for discrediting   claimant ’s testimony. Further, the ALJ found

claimant’s husband’s testimony less than fully credible because he had a financial

outcome in the proceedings and because he was not a competent medical source.

Without considering whether financial gain may be used as a factor to discount a


                                            -6-
witness’s credibility,   cf. Ramirez v. Barnhart , 292 F.3d 576, 581 n.4 (8th Cir.

2002), we conclude that claimant’s husband need not be a medical source before

his testimony about claimant’s daily activities and perceived limitations may be

considered credible.

       There must be a link between the medical evidence and a          claimant ’s

subjective complaints, but this court has held that the link need be only a “loose

nexus.” Luna v. Bowen , 834 F.2d 161, 164 (10th Cir. 1987). The ALJ’s analysis

of claimant ’s allegations and her husband’s testimony in comparison with the

medical evidence contradicts the “loose nexus” ruling in          Luna and requires

claimant to prove the severity of her pain and resulting limitations through

medical test results alone. We have rejected this concept as contrary to applicable

law. Id. at 165. “If objective medical evidence must establish that severe pain

exists, subjective testimony serves no purpose at all.”     Id. Agency regulation is in

accord. See 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements

about the intensity and persistence of your pain or other symptoms . . . solely

because the available objective medical evidence does not substantiate your

statements.”).

       “[I]f an impairment is reasonably expected to produce some pain,

allegations of disabling pain emanating from that impairment are sufficiently

consistent to required consideration of all relevant evidence.”        Luna , 834 F.2d at


                                             -7-
164. In other words, so long as there exists a medical basis for the pain     claimant

alleges, the ALJ should consider subjective testimony about the extent of her pain

and resulting limitations. We conclude that the record supports the existence of

conditions which could reasonably be expected to produce some pain. All of

claimant ’s treating sources acknowledged her pain and attempted to relieve it;

none of them suggested that she was exaggerating her pain or other symptoms.

In examining the subjective testimony on remand, the ALJ should consider factors

such as the medications    claimant has taken and their effectiveness; the extent of

her attempts to obtain relief and the frequency of her medical visits; and the

extent and nature of her daily activities.   See Kepler , 68 F.3d at 391.

       Because we reverse the agency’s denial of benefits on       claimant ’s second

issue, we need not consider her remaining allegations of error. The judgment

of the United States District Court for the District of Kansas is REVERSED, and

this case is REMANDED for further administrative proceedings consistent with

this order and judgment.


                                                        Entered for the Court



                                                        Bobby R. Baldock
                                                        Circuit Judge




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