                                      PUBLISH

                      UNITED STATES COURT OF APPEALS
Filed 11/1/96
                                   TENTH CIRCUIT



 PATRICK K. MILLER,

          Plaintiff - Appellant,
 v.
                                                            No. 96-7027
 SHIRLEY S. CHATER, Commissioner
 of Social Security Administration, *

          Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of Oklahoma
                               (D.C. No. CV-94-618)


Submitted on the briefs: **

Paul F. McTighe, Jr., and Gayle L. Troutman, Tulsa, Oklahoma, for Plaintiff -
Appellant.

John W. Raley, Jr., United States Attorney; Cheryl Triplett, Assistant United
States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma; Joseph B.

      *
             Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of Social
Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S. Chater,
Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health
and Human Services, as the defendant in this action. Although we have substituted the
Commissioner for the Secretary in the caption, in the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying decision.

       At the parties’ request, the case is unanimously ordered submitted without oral
      **

argument pursuant to the applicable rules.
Liken, Acting Chief Counsel; Tina M. Waddell, Acting Deputy Chief Counsel;
Randall Halford, Assistant Regional Counsel, Office of the General Counsel,
Social Security Administration, Dallas, Texas, for Defendant - Appellee.


Before PORFILIO, LOGAN and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.



      Claimant Patrick K. Miller appeals from the district court’s order affirming

the denial of his application for disability insurance benefits. 1 The issue on

appeal is whether the record contains substantial evidence to support the

administrative law judge’s (ALJ) conclusion that claimant was not disabled on or

before September 30, 1987, the last date on which he enjoyed insured status under

the Social Security Act. We reverse and remand.

                                   BACKGROUND

      Claimant applied for both disability benefits and supplemental security

income (SSI) in January of 1989, alleging disability as of July 11, 1986, because

of visual impairments. At an administrative hearing on November 9, 1989,

claimant, who was then fifty years old, testified that he was blind in the right eye,



      1
             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) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

                                          -2-
had long-standing glaucoma in the left eye, suffered peripheral vision loss as a

result of the glaucoma, and experienced side effects from Pilocarpine, a glaucoma

medication that he used twice a day. II Appellant’s App. at 27-31. Among the

side effects he mentioned were up to six or eight hours of “vertically decreased”

vision, pain, headaches, nose bleeds, occasional nausea, id. at 31, and blurred

vision, id. at 34-35.

      In a decision dated December 20, 1989, the ALJ found that although

claimant had a severe visual impairment due to blindness in the right eye and

glaucoma in the left, which, on or before September 30, 1987, prevented him from

engaging in his past work as an engineer, the evidence also established that

claimant could still perform a wide range of light work on or before that date. Id.

at 13-14. He was therefore not disabled prior to September 30, 1987, and was

accordingly ineligible for disability benefits. With respect to claimant’s SSI

application, however, the ALJ found that claimant’s severe visual impairment,

“complicated by medication side effects,” rendered him disabled as of January 10,

1989, the date he filed his SSI application. Id. at 14. 2

      Claimant sought review of the ALJ’s decision that he was not disabled on

or before the expiration of his insured status. Citing a December 29, 1989 report


      2
              Claimant’s SSI application was ultimately denied because he was found to
exceed the resource limitations for eligibility. See II Appellant’s App. at 236. That
decision has not been appealed.

                                          -3-
by claimant’s treating physician, Dr. Robertson, to the effect that “[claimant] may

not have been able to engage in any type [of] work activity prior to January 10,

1989,” the district court remanded the case “for the purpose of obtaining

additional medical and vocational expert testimony regarding [claimant’s] ability

to . . . work prior to January 10, 1989.” On remand and after two additional

hearings, the ALJ found again, in a decision dated July 30, 1993, that claimant

was not disabled at any time on or before September 30, 1987. He observed that

“[t]he record contains little medical evidence which specifically sets out

claimant’s functional limitations on or before September 30, 1987,” II Appellant’s

App. at 178. The ALJ concluded that “[a] finding of disability, therefore . . .

must be largely based on claimant’s own testimony and statements.” Id. at 182.

He found the evidence “simply overwhelming against claimant on the issue of

credibility,” and concluded that as of September 30, 1987, claimant had the

residual functional capacity (RFC) to perform light and sedentary work that did

not require bilateral visual acuity. Id. at 184-86. He further found, based on

expert vocational testimony, that despite his impairments there were a significant

number of light and sedentary jobs which claimant was able to perform on and

before September 30, 1987. Id. at 185-86.

      Claimant again sought review of the ALJ’s decision. The Appeals Council

denied his request. Claimant appealed and the district court affirmed the denial


                                        -4-
of benefits, finding “ample evidence in the record to support the ALJ’s finding of

[claimant’s] testimony not being credible.” I Appellant’s App. at 18. This appeal

followed.

                                  DISCUSSION

      In order to receive benefits, claimant must establish his disability prior to

the expiration of his insured status. See Henrie v. United States Dep’t of Health

& Human Servs., 13 F.3d 359, 360 (10th Cir. 1993). Once a claimant has

demonstrated, as Mr. Miller has here, that he cannot perform his past work

because of his disability, “the burden shifts to the Secretary to show that the

claimant retains the residual functional capacity (RFC) to do other work that

exists in the national economy.” Thompson v. Sullivan, 987 F.2d 1482, 1487

(10th Cir. 1993). The Secretary meets this burden if her decision is supported by

substantial evidence, id., which claimant alleges is not the case here. “Substantial

evidence is ‘more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting

Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.

1991) (other citations omitted)). In addition to reviewing the Secretary’s decision

for substantial evidence, we must also determine whether the correct legal

standards were applied. See Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).

      On review, we conclude that the ALJ made a number of legal errors in


                                        -5-
assessing the evidence pertaining to Miller’s alleged disability. In this case, there

is an uncontested administrative determination that claimant was disabled from

January 10, 1989, the date of his SSI application. There is also, as far as we can

discern, no contention by the claimant that he could not perform some limited

work prior to mid-1986. At some point between mid-1986, and January 1989,

therefore, claimant became completely disabled -- that is, he lost the functional

capacity to engage in substantial gainful activity on a sustained basis. If this

point pre-dated September 30, 1987, claimant is entitled to benefits; if, however,

it came after this date, claimant is not entitled to benefits.

      Although the ALJ correctly perceived the timing of claimant’s disability as

dispositive, he apparently misidentified the party with the burden of establishing

that timing. Finding that claimant lacked credibility, a determination with which

we have no disagreement, he noted that the “evidence is insufficient to establish

that the claimant was under a disability on or before September 30, 1987.” II

Appellant’s App. at 185. Even if this conclusion were correct, which we doubt in

light of Dr. Robertson’s December 29, 1989, report, the insufficiency identified

by the ALJ is not legally dispositive. The claimant had established his incapacity

to perform his own past work. Therefore the ALJ should have examined whether

the evidence was sufficient for the Secretary “to show that the claimant retain[ed]




                                           -6-
the . . . RFC to do other work that exists in the national economy,” Thompson,

987 F.2d at 1487, prior to the expiration of his insured status.

      In the circumstances of this case, it is the Secretary’s burden to show that

the point at which claimant became fully disabled was after September 30 1987,

not the claimant’s to show that that point pre-dated September 30, 1987. The ALJ

should not have found against the claimant on the grounds that the medical

evidence pertaining to claimant’s insured period was “limited” or “insufficient.”

Our decision in Thompson makes clear that the absence of conclusive medical

evidence cannot meet the Secretary’s step-five burden, even when a claimant has

been found not to be credible. Id. at 1491. To allow the Secretary to rely on the

absence or paucity of medical evidence “effectively shifts the burden back to the

claimant.” Id. This failure to use the correct legal framework is grounds for

reversal. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984).

      In reversing, however, we note a number of additional legal errors that

must be corrected when the evidence is reweighed within the correct legal

framework. First, and most significant, it was error for the ALJ to discredit Dr.

Robertson’s opinion of December 29, 1989. To reject a treating physician’s

opinion requires “specific, legitimate reasons,” Frey v. Bowen, 816 F.2d 508, 513

(10th Cir. 1987), that were not provided in this case. We do not agree with the

ALJ’s finding that claimant’s treatment records undercut Dr. Robertson’s opinion,


                                         -7-
nor do we think that such a report is appropriately dismissed as “an

accommodation to [a] life-long patient.” II Appellant’s App. at 180; see Frey,

816 F.2d at 515. We are also unpersuaded that later findings of central visual

acuity can be used to discredit earlier findings of peripheral vision loss, and

medication side-effects. Indeed, the ALJ himself recognized this when he found

claimant disabled for SSI purposes, notwithstanding the fact that “claimant’s

visual acuity, with correction, has remained within normal limits.” Id. at 14

(emphasis added). 3

           Second, the ALJ failed to consider the medical evidence of peripheral

vision loss. The medical evidence clearly shows that at some point after 1983,

claimant began to suffer peripheral vision loss as a result of his glaucoma, see,

       3
                In further attempting to justify his treatment of Dr. Robertson’s December
1989 report, the ALJ noted that he agreed with the opinion expressed therein that
claimant “was unable to ‘properly conduct his occupation’ . . . assum[ing] that Dr.
Robertson was referr[ing] to claimant’s ability to work as an engineer.” Id. at 180
(quoting December report). The ALJ attempts to buttress his assumption by finding it
consistent with Dr. Robertson’s comments in his April 1989 report, referring to
claimant’s difficulty “‘to perform certain activities in his daily living and his ability to
work.’” Id. at 181 (quoting April report) (emphasis added by ALJ). Yet it is the April
1989 report which the ALJ found determinative of claimant’s disability beginning
January of 1989. The ALJ cannot, without explanation, use the same medical report, first,
to justify a finding that claimant is unable to work at all and, then, to support an
assumption that a later report by the same doctor is referring simply to his ability to
perform past work. The ALJ accepted Dr. Robertson’s April 1989 report regarding the
disabling side effects of claimant’s medication. The medical evidence in the record
provides no basis for distinguishing and thus rejecting his December 1989 report, which
was obviously submitted to clarify when the difficulties referenced in the April report
began.


                                            -8-
e.g., II Appellant’s App. at 127-28, 151-152, a disorder “characterized by a

gradual rise in intraocular pressure, causing slowly progressive loss of peripheral

vision . . . .” Robert Berkow, M.D., The Merck Manual 2387 (16th ed., 1992). If

the ALJ did not consider this evidence because it dates from after September 30,

1987, that was further legal error. See Baca v. Department of Health & Human

Servs., 5 F.3d 476, 479 (10th Cir. 1993) (“[E]vidence bearing upon an applicant’s

condition subsequent to the date upon which the earning requirement was last met

is pertinent evidence in that it may disclose the severity and continuity of

impairments existing before the earning requirement date or may identify

additional impairments which could reasonably be presumed to have been present

and to have imposed limitations as of the earning requirement date.”) (quoting

Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 42 (2d Cir. 1972)).

In light of this evidence, the ALJ’s conclusion that, as of September 30, 1987,

claimant was limited in his ability to do light work only by a lack of bilateral

visual acuity is not supported by substantial evidence.

      Third, the ALJ overstepped his bounds into the province of medicine when

he concluded that “[i]t would appear that if claimant did indeed experience the

degree of side effects he has alleged, there should be evidence of efforts to

prescribe a different medication regimen.” II Appellant’s App. at 180. The ALJ

concluded that “[t]his fact is consistent with a conclusion that the medication has


                                         -9-
been effective in controlling claimant’s glaucoma . . . and [that] it has not

resulted in an unacceptable level of adverse side effects.” Id. We note that it is

also consistent with a conclusion that there is no alternative medical treatment for

claimant’s long-standing glaucoma. The ALJ’s assumption that the medication

would not have been used had claimant experienced the alleged side effects does

not constitute substantial evidence.

      Fourth, it was error for the ALJ to conclude that the claimant’s use of

Pilocarpine for a period of approximately seven years beginning in 1968 “casts

considerable doubt upon claimant’s allegations that he began to experience undue

side effects [only] when the medication was prescribed for a second time in

1986.” II Appellant’s App. at 179. There is no indication in the record that the

dosage was the same in both instances, and some suggestion (although

unexplored) that the dosage may have been increased. See id. at 30 & 514. Even

if the dosage were the same, there is no basis in the record for a conclusion that

claimant’s reaction to the medication will be the same over time. Indeed, the only

specific medical evidence on the subject at all is Dr. Robertson’s December 1989

report stating that claimant did experience medication side effects when

Pilocarpine was started again in 1986. The ALJ may not substitute his own

opinion for that of claimant’s doctor. See Sisco v. Department of Health &




                                         - 10 -
Human Servs., 10 F.3d 739, 743 (10th Cir. 1993); Kemp v. Bowen, 816 F.2d

1469, 1475 (10th Cir. 1987).

      Finally, we do not think that evidence of claimant’s driving and

employment can provide more than a “scintilla” of support for the Secretary’s

determination that claimant retained sufficient RFC to perform other forms of

work. Claimant’s continued driving did not prevent the ALJ from finding

complete disability as of January 1989, so it cannot coherently offer much support

for the contention that claimant was not disabled. His brief employment at the

University of Oklahoma occurred when he had already been determined to be

disabled, so it too cannot lend substantial support to a contrary conclusion.

Moreover, the record reveals that he was discharged from his employment for

“poor performance” rather than “misconduct,” which, if anything, would seem to

argue in favor of a finding of a disability. II Appellant’s App. at 170.



                                  CONCLUSION

      In light of the ALJ’s use of an incorrect legal framework, as well as the

additional errors noted above, we reverse the district court’s decision. Because

the appeals court does not reweigh the evidence in social security cases, Hargis v.

Sullivan, 945 F.2d 1482, 1486 (10th Cir. 1991), we remand to the district court

with instructions to remand to the ALJ for further proceedings consistent with this


                                        - 11 -
opinion. After four administrative hearings, two of which were held pursuant to

explicit instructions by the district court to address the period from July 11, 1986,

to January 10, 1989, we would caution the agency that “[t]he Secretary is not

entitled to adjudicate a case ‘ad infinitum until it [sic] correctly applies the proper

legal standard and gathers evidence to support its [sic] conclusion.’” Sisco, 10

F.3d at 746 (quoting Thaete v. Shalala, 826 F. Supp. 1250, 1252 (D. Colo. 1993)).

      REVERSED and REMANDED with directions to remand the case to the

agency for further proceedings consistent with this opinion.




                                         - 12 -
