                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 14 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JERRY D. LAWSON,

                Plaintiff-Appellant,

    v.                                                   No. 98-7115
                                                    (D.C. No. CV-97-85-S)
    KENNETH S. APFEL, Commissioner,                      (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , BARRETT , and McKAY, 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      This order and judgment is not binding precedent, except under the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.
        Claimant Jerry D. Lawson appeals from    the district court’s order affirming

the decision of the Commissioner of Social Security. In that decision, the

Commissioner determined that claimant was entitled to a closed period of

disability benefits under Title II of the Social Security Act beginning June 4, 1990

and ending September 4, 1994. See 42 U.S.C. § 423. We exercise jurisdiction

under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm in part and reverse in

part.


                                   I. Legal standards

        Our review is limited to determining whether the Commissioner’s decision

is supported by substantial evidence on the whole record and comports with

relevant legal standards.   See Casias v. Secretary of Health & Human Servs.    ,

933 F.2d 799, 800-01 (10th Cir. 1991). Claims for disability benefits are

evaluated according to the five-step sequential process set forth in 20 C.F.R.

§ 404.1520. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.1988)       . At

step four of the process, “the claimant must show that the impairment prevents

[him] from performing work he has performed in the past.”      Id. at 751 (quotation

omitted and alteration in original). If the claimant is successful at this stage, then

the claimant “has met his burden of proof, establishing a prima facie case of

disability. The evaluation process thus proceeds to the fifth and final step:

determining whether the claimant has the residual functional capacity (RFC) ‘to

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perform other work in the national economy in view of his age, education, and

work experience.’” Id. (footnote omitted).


                                 II. Relevant facts

      On June 4, 1990, claimant fell approximately eighteen feet from a rock

crushing machine, causing displaced fractures of both heels and ankles. In an

open reduction, pins were surgically inserted in both heel and ankle areas. The

surgeries were not totally successful, and claimant was left with significant ankle

joint immobility and painful ambulation. The injuries resulted in an “ambulation

difficulty,” Appellant’s App. Vol. II at 179, which one of his treating physicians

described as a “waddling bilaterally antalgic gait.” Id. at 219. This change in

gait in turn caused chronic back pain, see id. at 180, which was first reported in

February 1991, see id. at 172, and for which claimant received physical therapy

from July 1992 through March 1993, see id. at 192-196. X-rays of his back taken

in 1993 revealed degenerative changes and scoliosis, but an MRI was “within

normal limits.” Id. at 179-180. Claimant claimed that his back discomfort was

aggravated by sitting, crossing his legs, bending, or walking. See id. at 178.

      In March 1993, his treating physician stated that claimant was still totally

impaired and needed further surgery on his feet to help his back problems caused

by the abnormal gait. See id. at 244. In July 1993, claimant underwent a second

surgery to fuse the bones in his left ankle. By March 28, 1994, claimant’s

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surgical fusion in his left foot and ankle still had not successfully healed. See id.

at 256. After his last follow-up examination on September 2, 1994, claimant’s

treating physician stated that the fusion “appear[ed]” to have healed into what he

“th[ought]” was a solid fusion, and that he thought the heel joint had also healed,

so he did not schedule a follow-up appointment. Id. at 257. He noted that

claimant had continuing diffuse tenderness in his ankle and complained of

continued swelling and pain and stated that claimant had a 34% permanent partial

impairment of each foot. See id. The record reflects that because the surgery had

not afforded the relief from pain he had hoped for, claimant elected not to have

similar surgery on the right foot. See id. at 257, 262.

      At the hearing on October 18, 1994, claimant testified that he could walk at

the most for two blocks, that he could stand for only five to ten minutes at a time,

and that he could not sit in one place for more than thirty minutes because his

ankles would start swelling. See id. at 46-47. He had used a cane for assistance

or balance since he regained his ability to walk. See id. at 46, 198. He testified

that he still had back problems, see id. at 48, and that he could not repeatedly lift

and carry even a gallon of milk, see id. at 49. He said he spent most of the time

in a recliner or laying on the couch. See id. at 53. He had tried cross-country

truck driving for nine days in July 1994 and again for ten days in September 1994,

but both times his wife had to drive out of state to get him because his “feet were


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swelling up, and I was hurting so bad, I had to come home.” Id. at 50. Although

claimant completed a vocational computer technician training course in 1992, he

told the specialist to whom he was referred for back problems in 1993 that he did

not think he would be able to do the work because of the lifting requirements.

See id. at 179. The vocational expert testified that computer technician jobs are

medium-strength jobs because they require computer lifting and carrying. See id.

at 71.

         The medical record contains no medical opinions as to claimant’s abilities

to sit, stand, walk, or carry weight, although Dr. Dougherty, a consulting

physician for the Disability Determination Services for the State of Oklahoma

reported in 1993 (just before claimant’s last surgery) that claimant stated he could

“stand for 30 minutes, sit for 2 hours, lift 10 pounds of weight, and walk for 1

block.” Id. at 198.

         Citing to the September 2, 1994 report by claimant’s treating physician, the

administrative law judge (“ALJ”) said that the physician stated that claimant had

“reached the point that he would be able to return to some work activity in the

light and sedentary range provided that he would not require [sic] to be on his feet

more than 2 hours in an 8-hour workday.” Id. at 25. He concluded that “claimant




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would be restricted according to the credible evidence to a job where [standing] 1

would not exceed more than two hours in an eight-hour workday, where he would

not be required to lift [in] excess of 20 pounds and carry in excess of 10 pounds

or lift and/or carry frequently in excess of 10 pounds.” Id. at 26. The ALJ found

that between the date of his accident and September 4, 1994, claimant was

“functioning below the sedentary level” of capacity to do work and was eligible

for disability benefits, but that after September 4, 1994 he “regained the capacity

to return to his past relevant work as a dispatcher.” Id. at 25, 27.


                                   III. Discussion

      Two issues are presented for review. Claimant contends that: (1) the ALJ

erred in finding that he can return to his past relevant work without making the

proper findings to support such a conclusion and (2) the findings regarding

claimant’s credibility are not based on substantial evidence. As part of the first

issue, claimant argues that the ALJ failed to evaluate his condition pursuant to the

point of comparison method required by 20 C.F.R. § 404.1594(b)(7). Although

we note that recent case law 2 imposes a duty upon ALJs to comply with §

404.1594(b)(7) when determining whether to award benefits for a closed period,

1
      We agree with respondent that there is a scrivener’s error in the ALJ’s
decision and that “sitting” should have been “standing”.
2
       We commend respondent for so quickly bringing this case to the attention
of this panel.

                                         -6-
see Shepherd v. Apfel , No. 98-5115, 1999 WL 498260 at *3 (10th Cir. July 15,

1999) (to be reported at 184 F.3d 1196), because claimant failed to raise that

argument either on appeal to the Appeals Council,      see Appellant’s App. Vol. II at

8-10, or to the district court below,   see id. Vol. I at 13-15, we will not address it

here. See Berna v. Chater , 101 F.3d 631, 632-33 (10th Cir. 1996). We will

address the argument made below that substantial evidence does not support the

Commissioner’s determination that claimant regained the ability to perform his

past relevant work after September 4, 1994.

       The district court adopted the magistrate judge’s proposed findings and

conclusions that affirmed the award for a closed period. We agree that the

medical record supports a finding of disability between June 4, 1990 and

September 4, 1994. The district court did not comment, however, on whether the

record contains any evidence to support the conclusion that claimant’s disabling

condition had improved such that, after September 4, 1994, claimant        regained the

RFC to perform sedentary work and could return to his former job as a dispatcher.

After a careful review of the evidence, we conclude that it does not.

       The September 4, 1994 letter from claimant’s treating physician cited by

the ALJ as medical confirmation that claimant could return to light or sedentary

work after that date does not state what the ALJ claims. In fact, the report

indicates that, although claimant’s ankle had finally healed so that permanent


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fusion apparently occurred, claimant was no better in regard to pain, swelling, or

mobility after the second surgery than he had been before it. The report does not

mention claimant’s ability to return to work.

       The ALJ found that claimant met his burden to show he was disabled

between June 4, 1990 and September 4, 1994.          See Appellant’s App. Vol. II at 22.

Because claimant always admitted that he could lift ten pounds, the ALJ’s

conclusion that claimant was functioning below the sedentary level before

September 4, 1994 must have been based either on the existence of disabling back

and ankle pain or on claimant’s inability to sit for a long period without elevating

his legs or standing up and moving around.         See 20 C.F.R. § 440.1567(a)

(defining sedentary physical exertion requirements); 20 C.F.R. § 404.1545

(defining RFC as the capacity to do work considering one’s impairments plus

related symptoms like pain). The ALJ stated that claimant’s pain was not

disabling after September 4, 1994 in part because he could still drive a car,    see

Appellant’s App. Vol. II at 25, but claimant could drive a car before September 4,

1994, so the existence of that fact had no apparent relevance to whether claimant

ever had or still had disabling pain. While recognizing the requirement to

evaluate pain according to 20 C.F.R. § 404.1529 and listing the factors to be

considered, the ALJ did not discuss those factors in relation to the evidence

before him. Other than noting that the medical report prepared by the consulting


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physician before the second surgery showed limitation of motion in claimant’s

back and hip joints, see Appellant’s App. Vol. II at 24, the ALJ never discussed

the medical records indicating a back impairment or claimant’s claim of inability

to sit for long because of back pain.

       The ALJ did not specifically comment on claimant’s testimony that he

needed to lay in a recliner or on a couch or, if sitting, to stand and move around

often in order to prevent swelling and disabling pain. He simply made a finding

that claimant’s subjective complaints “since September 4, 1994 . . . are shown as

exaggerated.”    Id. at 22. In making this finding, the ALJ apparently found

claimant’s testimony that he had unsuccessfully tried to do sedentary work in

July 1994 to be credible, but his testimony that he had unsuccessfully tried to do

the same sedentary work after September 4, 1994 (just a few weeks before the

hearing) not to be credible. Nowhere in the medical record do claimant’s treating

or consulting physicians indicate that claimant’s complaints of pain were not

credible.

       The magistrate judge upheld the ALJ’s credibility finding, stating that the

medical “records show no recommendation as to physical therapy, prescribed pain

medication, nor any opinion limiting Plaintiff’s being able to engage in

substantial gainful activity.”   Id. Vol. I at 11. That statement, however, is belied

by the record. See, e.g., id. Vol. II at 192-96 (physical therapy records showing


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back treatment and prescription refills for Vicodin and Flexiril);      id. at 241

(treating physician’s report on March 23, 1993 stating that claimant had been

totally disabled since June 4, 1990, still was, and needed further surgery for feet

to try and correct back problems). The record also shows that claimant made

persistent attempts to find relief for his pain and had tried every treatment

prescribed. See, e.g., id. at 173 (noting claimant’s compliance with physical

therapy and exercise requirements, refilling pain medications);       id. at 207 (medical

report noting that claimant used cane 90% of the time because of pain, that

claimant took Flexiril to relieve low back muscle spasms and pain caused by

change in gait, and that claimant had decided to have second surgery because

daily activities had been unacceptably altered by pain);      id. at 219 (treating

physician’s report noting that claimant had “tried everything else including using

a cane, orthofeet, anti-inflammatory medication, muscle relaxants, physical

therapy, etc.”); see Luna v. Bowen , 834 F.2d 161, 165-66 (10th Cir. 1987) (listing

factors that ALJ should consider when determining the credibility of subjective

claims of pain). We conclude that the ALJ’s credibility finding is not supported

by the record.

       In short, the ALJ did not point to any evidence to explain why claimant

was functioning below the sedentary level before September 4, 1994, but not

afterward or to show that claimant’s disability ended on September 4, 1994. The


                                            -10-
conclusion that the disability period should be closed as of September 4, 1994

must, therefore, be rejected.   Cf. Shepherd , 1999 WL 498260 at *4 (holding that

insufficient evidence supported conclusion that improvement had occurred by

certain date where no medical record showed improvement);      see also Bowling v.

Shalala , 36 F.3d 431, 437 (5th Cir. 1994) (affirming award for closed period

because award of benefits for that period not challenged by Commissioner, but

reversing judgment based on issue of whether closure was supported by

substantial evidence).

        That part of the judgment of the United States District Court for the Eastern

District of Oklahoma that affirms the award of disability benefits from June 4,

1990 is AFFIRMED, but that part of the judgment that affirms the conclusion that

the period of disability was properly limited to September 4, 1994, is REVERSED

and the case is REMANDED with directions to remand to the Commissioner for a

continuing award of benefits until such time that a finding of no disability is

made.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge



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