                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 17 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DENNIS F. ROBINSON,

                Plaintiff-Appellant,

    v.                                                   No. 98-5073
                                                   (D.C. No. 96-CV-1026-J)
    KENNETH S. APFEL, Commissioner                       (N.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , BARRETT , and MURPHY , 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) and 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Dennis F. Robinson appeals from an order of the district

court affirming the Commissioner’s decision denying his application for

Supplemental Security Income (SSI) and social security disability benefits.

Appellant filed for disability and SSI benefits on April 25, 1994. He alleged

disability based on back and nerve injury, high blood pressure, an enlarged heart,

gout in both feet, and being a recovered alcoholic and a carrier of hepatitis B.

The agency denied his applications initially and on reconsideration.

      Appellant received a de novo hearing on June 16, 1995, before an

administrative law judge (ALJ). The ALJ determined that appellant could not

return to his past relevant work but that he retained the residual functional

capacity (RFC) to perform the full range of light work, reduced by his inability to

perform work requiring repetitive bending, stooping, or climbing, and his need to

alternately sit or stand at thirty-minute intervals. Applying the Medical-

Vocational Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.21 (the

grids) as a framework, the ALJ concluded that appellant 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 and whether the

correct legal standards were applied. See Andrade v. Secretary of Health &


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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).

       Appellant phrases his first issue as follows: “The administrative law judge

erred in his determination of the appellant’s residual functional capacity and his

findings regarding the appellant’s credibility for pain.” Appellant’s Br. at 23.

Appellant’s discussion of this issue is poorly organized. With some effort, we

have isolated six specific arguments advanced by appellant from the eleven pages

of his brief devoted to this argument. They are as follows: (1) the record

contains insufficient evidence to show that appellant retained the capacity to

perform a significant number of light jobs on a regular and continuing basis;

(2) the ALJ failed to support his findings concerning appellant’s RFC with

medical evidence in the record; (3) the ALJ’s RFC determination is based upon

adverse credibility findings which are not supported by substantial evidence;

(4) the ALJ failed to link his findings concerning appellant’s credibility to

substantial evidence, as required by   Kepler v. Chater , 68 F.3d 387, 391 (10th Cir.

1995); (5) the ALJ erroneously treated his case on a one-dimensional basis by

considering his condition at the time of the hearing, when appellant had

recuperated from previous surgery, rather than at all times since the alleged onset


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of disability; and (6) the ALJ failed to place the burden of proof on the

Commissioner at step five to establish his RFC.

        There is no indication that appellant raised the burden of proof argument

before the district court. Accordingly, we do not consider it.    See Crow v.

Shalala , 40 F.3d 323, 324 (10th Cir. 1994). We will address the other five

arguments he makes.

        We consider first whether there is sufficient evidence to support the ALJ’s

conclusion that appellant can perform     the full range of light work, reduced by his

inability to perform work requiring repetitive bending, stooping, or climbing, and

his need to alternately sit or stand at thirty-minute intervals. Having carefully

reviewed the evidence, including the opinions expressed by appellant’s treating

physicians, we believe this conclusion is supported by substantial evidence, with

the exception of the ALJ’s evaluation of appellant’s nonexertional complaint of

pain.

        Appellant argues that the ALJ failed to conduct a proper analysis of his

pain. He contends that the ALJ failed to consider pertinent factors in evaluating

the credibility of his pain complaint, and failed to tie his credibility findings to

specific evidence in the record. In evaluating the credibility of a claimant’s

subjective complaint of disabling pain, the ALJ should consider such factors as “a

claimant’s persistent attempts to find relief for his pain and his willingness to try


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any treatment prescribed, regular use of crutches or a cane, regular contact with a

doctor, . . . the possibility that psychological disorders combine with physical

problems[,] . . . the claimant’s daily activities, and the dosage, effectiveness and

side effects of medication.” Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir.

1987). It is not enough, moreover, for the ALJ simply to list these factors; he

must also “explain why the specific evidence relevant to each factor led him to

conclude claimant’s subjective complaints were not credible.” Kepler, 68 F.3d at

391.

       Here, the ALJ identified and discussed some of the factors pertinent to his

evaluation of appellant’s complaint of pain. The ALJ did not, however, expressly

consider appellant’s persistent attempts to find relief from his pain, his

willingness to try various treatments for his pain, and his frequent contact with

physicians concerning his pain-related complaints. It is error for the ALJ to fail

to consider factors relevant to the pain analysis which are supported by the

record. See Winfrey v. Chater, 92 F.3d 1017, 1021 (10th Cir. 1996). Judging

from the record, these factors should have been considered.

       The ALJ found that appellant takes only nonprescription pain relievers.

This finding is not supported by substantial evidence. Appellant reported at the

hearing that he was taking pain medication. See Appellant’s App. Vol. II at




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49-50. Appellant’s list of medications, completed June 16, 1995, shows that he

was taking prescription pain medication prescribed by Dr. Davis. See id. at 246.

       The ALJ also found appellant not credible because he had made

inconsistent statements about the restriction that pain placed on his ability to

walk. The ALJ found appellant’s statement at the time of his application that he

could walk a mile each day inconsistent with his later statement at the hearing

that he could walk just ten minutes before having to rest. See id. at 26. These

statements are not necessarily inconsistent, however: the first statement deals

with how far appellant could walk in a day, whereas his statement at the hearing

described how far he could walk at a time. The ALJ should have recognized this,

given the testimony elicited by his questioning of appellant:

       Q Okay. And how far are you able to – how much time?

       A Well, I spend about ten minutes walking.

       Q And then you have to sit down and then you get back up and walk
       the other way ten minutes?

       A Yes, sir.

Id. at 49.

       In sum, the ALJ’s evaluation of appellant’s complaint of pain was both

incomplete and based upon factors which are unsupported by substantial evidence.

Because a credibility assessment requires consideration of all the factors “in

combination,” see Huston v. Bowen, 838 F.2d 1125, 1132 n.7 (10th Cir. 1988),

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when several of the factors relied upon by the ALJ are found to be unsupported or

contradicted by the record, this court is precluded from weighing the remaining

factors to determine whether they, by themselves, are sufficient to support the

ALJ’s credibility determination. We must therefore remand to allow the ALJ to

reconsider his pain analysis, and to conduct such further proceedings as may be

necessary as the result of such reconsideration.

      We next consider whether the ALJ erred by failing to consider appellant’s

condition at all times pertinent to his application. Appellant argues that his

medical condition at the time of the hearing did not present a clear picture of his

disabling impairments. By the time of the hearing before the ALJ, he argues, he

had recuperated from his previous back surgery and was in better condition than

he had been in the previous two years.   He claims that the ALJ’s failure to

consider the seriousness of his condition as he experienced it during the two-year

time period prior to the hearing requires reversal.

      The ALJ’s decision shows that he did consider the medical evidence

concerning the previous time periods in question. Moreover, appellant’s

argument misapprehends the nature of the disability determination. In order to

obtain disability benefits, a claimant must show that he has a disability which

“can be expected to result in death or . . . has lasted or can be expected to last for

a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a),


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416.905(a). Medical records concerning appellant’s condition prior to the

hearing date are certainly relevant to this determination. The ALJ cannot,

however, award prospective benefits based on a condition which he determines is

no longer disabling as of the hearing date.

       Alternatively, appellant may be arguing that the ALJ should have awarded

him a closed period of disability benefits. If appellant previously had suffered a

period of disability due to a condition which was no longer disabling by the

hearing date, he might be entitled to a closed period of benefits.   See Pickett v.

Bowen , 833 F.2d 288, 289 n.1 (11th Cir. 1987) (discussing “closed period”

benefit cases). Although it is not clear whether appellant is attempting to make

this argument, we have carefully reviewed the record and conclude that there is

substantial evidence to support the ALJ’s determination that appellant’s

exertional impairments did not cause him to meet disability requirements during

any period relevant to his claim. On remand, the ALJ will, of course, need to

reconsider the pain issue as it relates to the entire relevant time period.

       In his next issue, appellant contends that the new evidence he presented to

the Appeals Council provided a basis for changing the ALJ’s decision of June 23,

1995. In a letter dated September 5, 1995, Dr. Trinidad opined that the condition

of appellant’s back had progressively worsened since May 1995. In December




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1995, Dr. Detweiler stated that appellant’s pain had increased in severity since

May 1995. In January 1996, appellant underwent a further back surgery.

      The Appeals Council determined that the new evidence did not provide a

basis for changing the ALJ’s decision. It did not give specific reasons for this

finding. We note, however, that evidence presented to the Appeals Council is

considered only to the extent that it is new, material and relevant to the pertinent

time period. See 20 C.F.R. §§ 404.970(b), 416.1470(b);     O’Dell v. Shalala , 44

F.3d 855, 859 (10th Cir. 1994) .

      Appellant argues that the evidence is relevant to the time period prior to the

ALJ’s June 23, 1995 decision. He contends that his doctors’ statements about the

worsening of his condition “since May 1995" proves that his condition had

worsened before the ALJ decided his claim, and that this new evidence therefore

buttresses his claim of disabling pain at the hearing.

      The statements of appellant’s doctors must be understood in context,

however. It is not at all clear from the record that the worsening of appellant’s

condition began in May 1995. May 1995 was the month in which the Workers’

Compensation Court for the State of Oklahoma adjudicated appellant’s workers’

compensation claim.   See Appellant’s App. Vol. II at 249. Thus, the May 1995

date provided a “jumping off point” for discussion of the worsening of his

condition by appellant’s workers’ compensation doctors.


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       This interpretation is borne out by other evidence in the record. Appellant

reported to his physician, Dr. Hicks, that he “had been doing quite well through

the year of 1995, until August 1995 . Since then he had developed increasing

severe problems involving his back.”    Id. at 269 (emphasis added). There is no

evidence that appellant saw a doctor for his complaints of worsened back pain

prior to September 1995. A worsening in August 1995 would certainly have

occurred after (or “since”) May 1995; however, it did not occur prior to the ALJ’s

decision. We conclude that the new evidence does not show a deterioration in

appellant’s condition prior to the ALJ’s decision and therefore does not rob the

Commissioner’s decision of substantial evidence.   2



       Finally, appellant contends that the ALJ’s hypothetical question to the

vocational expert (VE) was incomplete. He argues that the ALJ should have

included the fact that he needs a cane to walk, that his feet are painful and that

they swell when he stands. He also complains that the ALJ stated in his

hypothetical that he should be able to stand “for a short period of time” without

defining that term.   Id. at 76.




2
      If appellant believed that his condition had worsened after the ALJ hearing,
his remedy was to initiate a new claim for benefits as of the date his condition
became disabling. See Sizemore v. Secretary of Health & Human Servs.      , 865
F.2d 709, 712 (6th Cir. 1988).

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      As the ALJ noted, Dr. Fielding told appellant to stop using his cane and to

increase his walking. Although appellant claimed that he had gout, substantial

evidence supports the ALJ’s finding that his only medically documented foot

problem consists of osteoarthritis in both his great toes. To the extent that

impairment would prevent appellant from standing for long periods of time as

required by light work, the VE testified in response to follow-up questions by the

ALJ that there were jobs which appellant could perform at a sedentary, unskilled

level. See id. at 78.

      Appellant further argues that the ALJ’s hypothetical was incomplete,

because it was based on assumptions about his credibility which are unsupported

in light of the evidence which he subsequently submitted to the Appeals Council.

We do not understand appellant to argue that the ALJ was required to prophesy

that he would submit additional evidence. Rather, we think he is simply

attacking, on another ground, the Appeals Council’s decision not to remand this

case to the ALJ. As such, his attack fails. As we have already noted, the

post-hearing evidence did not provide a basis for concluding that appellant’s

impairments were of greater severity on or before the date of the ALJ’s decision

than otherwise indicated by the medical evidence previously available. We

conclude that the ALJ adequately described appellant’s impairments in the

hypothetical which he posed to the VE.


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

of Oklahoma is AFFIRMED in part, REVERSED in part, and REMANDED with

instructions to remand to the Commissioner for further proceedings on the pain

issue in accordance with this order and judgment.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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