                                                                             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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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

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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)

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(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

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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.

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