                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 4 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CARL C. SMITH,

                Plaintiff-Appellant,

    v.                                                   No. 97-5099
                                                     (D.C. No. 96-CV-262)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before PORFILIO, KELLY, and HENRY, 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




*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


                                         I

      Claimant Carl C. Smith appeals from the district court’s judgment affirming

the Commissioner’s decision denying his claim for disability insurance and

supplemental security income benefits at step five of the five-part process for

determining disability, see 20 C.F.R. §§ 404.1520, 416.920. In what now stands

as the final decision of the Commissioner, the administrative law judge

determined that claimant was severely impaired due to lower back and leg pain,

and that while he could not return to his past relevant work, he retained the

functional capacity to perform light work limited by only occasional bending and

stooping and by alternating sitting and standing. Relying on a vocational expert’s

testimony, the ALJ found that there were bench, attendant and other jobs

available that claimant could perform with these limitations and thus found him

not to be disabled.

      On appeal, claimant contends that the ALJ erred in concluding that his

testimony regarding the severity of his pain was not credible and in improperly

discounting the opinion of his treating physician that he was disabled. We review

the Commissioner’s decision to determine whether factual findings are supported

by substantial evidence and whether correct legal standards were applied.

                                        -2-
See Kepler v. Chater, 68 F.3d 387, 388-89 (10th Cir. 1995). We agree with

claimant that the ALJ’s credibility analysis was flawed and conclude that the case

must be remanded to the Commissioner for further consideration.


                                        II

      Claimant is currently forty-six years old and has an eighth-grade education.

He had been working since 1969 as a heavy equipment operator for the City of

Tulsa when he injured his back in July 1990, apparently while working, which

resulted in lower back and left leg pain. Orthopedic surgeon Dr. Hendricks

diagnosed a herniated disk, and in August 1990, he performed back surgery on

claimant which included partial hemilaminotomies at L4-5 and L5-S1, a

foraminotomy of L5 nerve root, and a partial discectomy at L4-5. On follow-up

examinations, Dr. Hendricks concluded that claimant was doing well and in late

October 1990, indicated he was ready to return to work, with a forty-pound

weight lifting restriction that he suggested be enforced for one year. Claimant

returned to work in November 1990, and the city placed him in a janitorial

position that was less strenuous than his usual job. He stopped working in

September 1991, but the reason is unclear. Claimant contends that he was unable

to do the janitorial work and his performance was unacceptable because of pain

and numbness in his back and legs. However, his supervisor indicated that he

was able to do his job and that his performance was acceptable.

                                        -3-
      In May 1992, claimant applied for Social Security benefits alleging

disability due to his back injury. His application was denied, and he did not

challenge that denial. In July 1993 he filed the applications for benefits that are

the subject of this appeal. His applications were denied in September 1993. In

November 1993, he was in an automobile accident which he contends aggravated

his back injury, and he filed a request for reconsideration partially on that basis.

See Appellant’s App. Vol. II at 159. That request was denied, and he asked for a

hearing before an ALJ. Following a hearing, the ALJ concluded that he was not

disabled.

      Because claimant’s primary contention is that the ALJ failed to distinguish

between his pre- and post-accident condition, we set forth the post-accident

medical evidence in some detail. Ten days after claimant’s November 5, 1993

automobile accident, claimant went to his treating physician, Dr. Reed,

complaining of increased back and leg pain, along with other symptoms, resulting

from the accident. After examining claimant, Dr. Reed ordered X-rays of his

lower back and prescribed Vicodin ES (a narcotic pain reliever), Ansaid (an anti-

inflammatory agent), and Flexeril (a cyclobenzaprine for relief of skeletal muscle

spasms). See Appellant’s App. Vol. II at 207-08. On November 24, claimant saw

Dr. Hendricks, complaining primarily of low back and left leg pain and numbness.

Dr. Hendricks noted that claimant had a considerably restricted range of motion


                                          -4-
and some numbness along the S1 and L5 distributions, but that the strength in his

lower extremities was well-maintained. See id. at 212. He recommended

conservative treatment consistent with what Dr. Reed was doing, and indicated

that claimant needed an anti-inflammatory and pain medication. See id. On

examination the following week, Dr. Reed noted that physical therapy, which he

apparently had ordered, seemed to help, but the pain recurred three hours later,

and there was some indication that the therapy actually made the pain worse. See

id. at 204. Dr. Reed scheduled an electromyogram (EMG) and renewed his

prescriptions. See id. Following the EMG, which was negative for nerve disease

on the left side, Dr. Reed increased the amount of claimant’s medications and

ordered a magnetic resonance imaging (MRI). See id. at 201. The radiologist

reviewing the results of the MRI suspected recurrent herniated disks at L5-6 and

L6-S1. See id. at 200. On reviewing the radiologist’s report, Dr. Reed referred

claimant back to Dr. Hendricks and renewed his prescriptions. See id. at 199.

      Claimant visited Dr. Hendricks on January 10, 1994, complaining of

continuing low back and leg pain and numbness. He told Dr. Hendricks that some

studies had been performed, but he did not know what they were. After reviewing

the EMG and MRI results, Dr. Hendricks wrote to claimant that claimant

appeared to have a bulging disk at L4-5, and that he hoped that it could be

managed nonsurgically with an epidural steroid injection, more physical therapy,


                                         -5-
and time. See id. at 210. Dr. Hendricks apparently examined claimant on

February 2, and in an April 25, 1994 letter, he wrote that, while he did not see the

second possibly herniated disk that the radiologist noted, he did see a recurrent

L5-6 1 disk herniation on the left side where claimant was symptomatic. See id. at

249. Although he had recommended conservative treatment, he had learned from

claimant’s wife that the pain was continuing, and he stated he thought claimant

would probably need another discectomy and possibly a fusion. See id.

      Claimant was examined by Dr. Farrar, D.O., on April 25, 1994. Dr. Farrar

indicated that he had previously examined claimant in September 1990 and

February 1991, but there are no reports or notes from these examinations in the

record. Dr. Farrar opined that claimant’s condition had deteriorated substantially

since his 1991 examination, noting that claimant’s lumbar spine range of motion

was significantly limited, that he showed increased neurological symptomatology

into his left leg since his previous examination, that the MRI revealed two disk

herniations, and that claimant reported increased pain since his accident. See id.

at 244-45. He concluded that claimant had been disabled since his accident, and

that failure of continued conservative treatment to improve claimant’s condition

would necessitate surgical intervention. See id. at 245. Although the record does


1
      Claimant appears to have six lumbar vertebrae rather than the usual five,
see Appellant’s App. Vol. II at 249, and the same herniated disk seems to be
variously identified as either L4-5 or L5-6.

                                         -6-
not contain evidence of additional examinations by Dr. Reed, he indicated on an

insurance form in October 1994 that he also believed claimant was totally

disabled. See id. at 253-54.


                                        III

      We set out the framework for the proper analysis of the evidence of

allegedly disabling pain in Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir.

1987). That analysis requires us to

      consider (1) whether Claimant established a pain-producing
      impairment by objective medical evidence; (2) if so, whether there is
      a “loose nexus” between the proven impairment and the Claimant’s
      subjective allegations of pain; and (3) if so, whether considering all
      the evidence, both objective and subjective, Claimant’s pain is in fact
      disabling.

Kepler, 68 F.3d at 390 (internal quotations omitted). It is clear from the evidence

and implicit in the ALJ’s decision that claimant established the first two of these

elements. The only part of this analysis at issue here is the ALJ’s consideration

of claimant’s subjective complaints of pain and whether the ALJ properly found

claimant’s complaints of disabling pain not credible.

      Claimant contends that the ALJ’s credibility determination was flawed

because the ALJ used pre-accident evidence to contradict claimant’s post-accident

complaints of pain. Credibility determinations are peculiarly the province of the

ALJ, and we will not upset them when they are supported by substantial evidence.


                                         -7-
See Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir.

1990). However, the ALJ’s credibility determinations must be closely and

affirmatively linked and logically connected to substantial evidence. See Kepler,

68 F.3d at 391. To make his or her credibility findings, an ALJ must consider

factors such as

      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.

Id. (further quotations omitted). The issue in this case is not so much whether the

ALJ considered the appropriate factors as it is whether the evidence on which he

relied supported his conclusions regarding the factors he considered.

      We agree with claimant that the ALJ’s credibility determination is not

supported by substantial evidence. The post-accident medical evidence described

above indicates that the accident was a significant event; both Drs. Hendricks and

Farrar, who had examined claimant before and after the accident, noted increased

pain and medical changes that they attributed to the accident. Thus, there is

medical evidence to support claimant’s contention that his back and leg pain and

numbness increased as a result of his accident.




                                         -8-
      However, the ALJ virtually ignored the accident in his decision and never

expressly considered its effect on claimant’s condition. While the ALJ considered

a variety of appropriate factors in assessing claimant’s credibility, in several

instances he used pre-accident evidence to reject claimant’s post-accident

allegations of pain and impairment. In other instances, the evidence the ALJ used

to discount claimant’s credibility was irrelevant. We turn to the various factors

the ALJ considered:

      Low back and leg pain--The ALJ noted that at the hearing in November

1994, claimant stated that he was in constant daily pain that increased with

walking, that he was very limited in his abilities to stand, sit and walk for any

period of time, and that he could carry or lift only ten to fifteen pounds. The ALJ

found this to be inconsistent with his statement to consultative examiner Dr.

Dalessandro that his pain comes and goes and is no more than slight. The ALJ

also noted that he told Dr. Hendricks that he was doing “pretty well” and was

walking up to two miles a day, and Dr. Hendricks thought he was doing

“exceptionally well.” See Appellant’s App. Vol. II. at 16. However, the

examination by Dr. Dalessandro to which the ALJ referred occurred in June 1992

(he also examined claimant in September 1993), well before the November 1993

accident. See id. at 185, 191. Moreover, the statements to and impression from




                                          -9-
Dr. Hendricks took place in August and September 1990, shortly after claimant’s

surgery and before claimant even stopped working. See id. at 217, 219, 220.

      Impairments other than low back and leg pain--The ALJ stated that he was

“unpersuaded” by claimant’s complaints of pain in shoulders and neck and of

headaches, vision, hearing and asthma problems, generally because claimant made

no attempt to relieve the symptoms. On his request for reconsideration, claimant

indicated he had some neck pain. However, he did not claim either on his benefit

applications, disability reports, pain questionnaires or at the hearing that his

shoulder pain, headaches, vision and hearing problems, or asthma caused or

contributed to his claimed disability. We thus fail to see the relevance of

claimant’s failure to seek relief from these problems.

      Physical therapy--The ALJ stated that “although the record shows that he

went to therapy before surgery, he did not obtain any after the surgery, although

he told Dr. Reed that physical therapy had been helpful.” Id. at 16. There is no

indication in the record that claimant obtained physical therapy prior to his

surgery. Moreover, he stated on his request for reconsideration that as a result of

the accident, Drs. Reed and Hendricks “have me going to therapy 3 times a

week,” id. at 159, and he testified at the hearing that the therapy lasted six weeks,

see id. at 40. While he did tell Dr. Reed that physical therapy helped, he also said

that the pain returned three hours later and that therapy may actually have made


                                         -10-
the pain worse. See id. at 204. Dr. Hendricks also noted that the therapy may be

doing more harm than good. See id. at 212.

         Daily activities--The ALJ noted that claimant’s daily activities included

“personal care, reading the newspaper, feeding his dog, cleaning and caring for

his aquariums, visiting friends, driving daily and walking around the house.” Id.

at 16. The ALJ again noted that he told Dr. Hendricks that he walked up to two

miles a day. See id. “Furthermore, although he testified that his wife did all the

household chores, he had earlier stated that he did cooking and light cleaning 3 or

4 times a week, up to an hour at a time . . . .” Id. As noted above, the statement

regarding the walking was made three years before the accident. Claimant made

the statement regarding cooking and cleaning in May 1992, see id. at 138, 140,

and he stated that after the accident he could not stand long enough to cook

because of the pain and numbness, see id. at 154. Additionally, an ALJ “may not

rely on minimal daily activities as substantial evidence that a claimant does not

suffer disabling pain.” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.

1993).

         Medications--The ALJ noted that claimant reported in February 1994 that

he was taking Vicodin and Tylenol, but in November 1994 reported that he was

taking Vicodin, Cyclobenzaprine, and Alprazolam (for relief of anxiety), which

claimant indicated had been first prescribed by Dr. Reed in November 1993. The


                                          -11-
ALJ stated that this “inconsistency” persuaded him that “claimant has not been

consistent in taking medications, although he did testify that he now takes all the

reported medications regularly.” Appellant’s App. Vol. II at 17. The ALJ also

noted that “the prescriptions were obtained only a few days before the claimant

filed for reconsideration,” which suggested that “there was no need for

medication until it became necessary to enhance the appearance of disability.” Id.

Whatever the evidentiary value of claimant’s failure to report the same

medications on the two forms, we note that after the accident Dr. Reed

consistently prescribed pain relievers and anti-inflammatories, and these

prescriptions were consistent with Dr. Hendricks’ recommendations. See id. at

199, 201, 204, 208, 212. Moreover, while claimant did obtain the prescriptions

from Dr. Reed only a few days before filing for reconsideration, that was only a

few days after he was in the accident, which is why he went to see Dr. Reed in the

first place.

       Secondary gain--The ALJ stated that “it appears that there is a factor of

secondary gain in the maintaining a stance of disability.” Id. As evidence of this,

the ALJ stated that “claimant has received Worker’s Compensation, alleging

inability to remember the amount he received in settlement.” Id. The ALJ also

referred to the inconsistency between claimant’s story regarding his termination

from work and that of his supervisor. We do not see any relevance to the fact that


                                         -12-
claimant also received a Workers Compensation settlement, whether he

remembered the amount or not. The reasons stated by claimant and his supervisor

for claimant’s leaving the City’s employment were somewhat different, though

not necessarily contradictory. We do note that the supervisor also stated that

claimant was not injured on the job, but that appears to be inconsistent with the

fact that claimant received Workers Compensation for his injury in 1990.

      In sum, almost all of the reasons the ALJ gave for rejecting claimant’s

contention of disabling pain are either not supported by substantial evidence or

are irrelevant. The medical evidence regarding the severity of claimant’s

impairment was not overwhelming in either direction. 2 That made the credibility

determination all the more important. 3 But the flaws in the ALJ’s determination

undermine his finding that claimant was not credible, which in turn undermines

his ultimate determination that claimant could perform most light work and was

2
       Because we conclude the ALJ erred in his credibility determination, we
need not address claimant’s contention that the ALJ improperly rejected the
October 1994 opinion of his treating physician, Dr. Reed, except to note that the
ALJ’s failure to make the pre- and post-accident distinction also affected his
decision to reject this opinion. We agree with the ALJ that Dr. Reed’s opinion
that claimant was totally disabled was brief, conclusory, and unsupported by Dr.
Reed’s examinations and medical findings. However, in rejecting this opinion,
the ALJ relied in part on Drs. Hendricks’ and Dalessandro’s pre-accident
examinations of and reports regarding claimant. See Appellant’s App. Vol. II at
14-15.
3
      Since the medical evidence was inconclusive, the ALJ’s analysis would
have benefitted from a consultative examination. See Thompson, 987 F.2d at
1491.

                                        -13-
not disabled. We therefore must remand the case to the Commissioner for further

proceedings. In doing so, we do not dictate any result, nor do we mean to imply

that claimant’s complaints are necessarily credible. We require only that findings

be supported by substantial evidence.


                                        IV

      Because the ALJ’s decision that claimant’s pain does not preclude him

from performing light work is not supported by substantial evidence, we

REVERSE the district court’s judgment and REMAND this case to the district

court with instructions to remand the case to the Commissioner for further

proceedings consistent with this order and judgment.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




                                        -14-
