                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 5 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM J. PENNINGTON,

                Plaintiff-Appellant,

    v.                                                   No. 96-5177
                                                   (D.C. No. 93-CV-1135-J)
    SHIRLEY S. CHATER,                                   (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.


         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.




*
      This order and judgment is not binding precedent, except under the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.
**
       Honorable Robin J. Cauthron, District Judge, United States District Court
for the Western District of Oklahoma, sitting by designation.
      Claimant William J. Pennington appeals from an order of the magistrate

judge, sitting for the district court by consent of the parties pursuant to 28 U.S.C.

§ 636(c)(1), affirming the denial of his application for social security disability

benefits. Claimant alleges disability due to the pain and debilitating aftereffects

of ocular migraine headaches. The administrative law judge (ALJ) found

claimant’s testimony only partially credible and determined that he was not

disabled at step four of the five-step sequential evaluation process. See Williams

v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). The only issue on appeal is

whether the ALJ’s credibility determination is supported by substantial evidence.

We have jurisdiction under 28 U.S.C. § 636(c)(3) and 28 U.S.C. § 1291 and, for

the reasons discussed below, we reverse and remand for an immediate award of

benefits.

      Claimant was born in 1943 and holds two associate’s degrees, one in

business administration and one in middle management. Prior to 1991, when he

claims to have become disabled, he had worked continuously since at least 1975,

in either data processing, computer programming, or telecommunications. He was

employed with Amoco, his last employer, for a period of approximately eleven

years and, in his last position there, as a staff telecommunications analyst

responsible for the southeastern United States, he traveled 90-95 percent of the

time, worked 70-80 hours per week, and made approximately $50,000 a year.


                                          -2-
Although there is some confusion in the record as to the precise date in 1991

when he last worked, the evidence is uncontroverted that he did not quit, but was

“put . . . out on disability.” II Appellant’s App. at 53. Claimant explained that

“[t]hey didn’t want [him] driving . . . [or] travelling any more,” which “was part

of [his then-current] job,” id. at 53, and that the in-house doctor discussed with

him the possibility of a transfer to an accounting function or something similar

but thought that the eye strain would probably “set [the headaches] off,” id. at 60.

At the time of his administrative hearing, he was receiving long term disability in

the amount of $2,670 a month.

      Claimant filed his application for social security disability benefits in 1992,

alleging disability from March 1991 due to ocular migraines. He testified at his

administrative hearing that his headaches started “[n]ot too long after” an

accident in 1987 involving a battery explosion which resulted in the loss of his

left eye, id. at 53, and have gradually worsened since then. He further testified

that he suffered migraine headaches four to seven times a week, each lasting from

three to five hours and accompanied by five to twenty minutes of blindness in his

right eye and by debilitating aftereffects lasting up to 24 hours. See id. at 52.

Among the aftereffects claimant described were tenderness of the head, dizziness,

nausea, and grogginess. See id. He also testified that although the doctors “can’t




                                          -3-
nail down exactly what’s causing [the headaches],” eye strain and reading a

computer screen “seem[] to be” factors. Id. at 59.

      Claimant characterized approximately 15 to 20 percent of his time as “good

days,” when he is “not having a headache or any side effects” and “can do a few

things, go to the laundry, [and] go to the grocery store.” Id. at 50. He described

20 percent of his time as “bad days,” when he has “extreme headaches” and

“stay[s] in bed with a pillow over [his] head, the drapes closed,” when he “can’t

stand light, can’t stand noise, [and] cannot function at all.” Id. The rest of his

time he characterized as “a transition period,” when he is “either going

into . . . [or] coming out of [a] headache[]” and suffering from the aftereffects of

the headache and his headache medication. Id. During these transition periods,

claimant testified that he is in a “recuperation mode”and can “fend for [him]self, .

. . fix [him]self a meal, maybe do a load of laundry, [and] take care of the dogs,”

but “spend[s] most of the day on the couch” and “can’t function.”

Id. at 50-51.

      Rejecting much of this testimony, the ALJ determined that claimant had the

residual functional capacity to perform light work limited only by monocular

vision, lack of depth perception, and occasional blind episodes, and the resulting

inability to climb, balance, or work around heights or moving machinery.

Although he found that “claimant has occasional bouts of headache pain,” id. at


                                          -4-
19, and credited claimant’s complaints of episodes of accompanying blindness,

the ALJ found that claimant’s testimony “exhibit[ed] embellishment,

exaggeration, and a strong secondary gain motive” and found it credible “only to

the extent that it is reconciled with the objective medical evidence and the

claimant’s [residual functional capacity],” id. at 24. Accordingly, the ALJ

determined, at step four of the sequential evaluation process, that claimant could

return to his past relevant work and thus was not disabled.

      On appeal, claimant challenges the ALJ’s credibility determination.

“[C]redibility determinations are the province of the ALJ, ‘the individual

optimally positioned to observe and assess witness credibility.’” Adams v.

Chater, 93 F.3d 712, 715 (10th Cir. 1996) (quoting Casias v. Secretary of Health

& Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)). Accordingly, this court

ordinarily defers to the ALJ on that issue. See Casias, 933 F.2d at 801.

However, “deference is not an absolute rule.” Thompson v. Sullivan, 987 F.2d

1482, 1490 (10th Cir. 1993). To be sustained, credibility determinations must be

supported by substantial evidence. See Kepler v. Chater, 68 F.3d 387, 391

(10th Cir. 1995). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Soliz v. Chater, 82 F.3d

373, 375 (10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971) (further quotation omitted)).


                                         -5-
      Having carefully reviewed the record, we do not find substantial

evidentiary support for the ALJ’s credibility determination in this case. Without

much elaboration, the ALJ found that claimant’s testimony was “not always

consistent with the documentary evidence or with itself.” II Appellant’s App.

at 21. The ALJ cites Dr. Dawson’s July 1992 treatment notes purportedly to the

effect that “claimant was doing well with his migraine headaches.” Id. The July

1992 notes make no reference to claimant’s headaches, however, but appear to

relate only to claimant’s status following an endoscopy which found claimant to

have a hiatal hernia. See id. at 149. More importantly, a review of Dr. Dawson’s

records in their entirety reveal that since at least early 1990, claimant has

consistently sought relief from headaches and received medication for that

purpose. See id. at 160 (3/6/90), 159 (5/22/90), 158 (5/29/90), 157 (1/14/91 &

1/31/91), 156 (2/26/91 & 5/3/91), 155 (9/4/91), 154 (12/18/91), 153 (4/1/92), 150

(6/18/92), 148 (9/17/92), 203 (2/1/93). Among the medications he has

consistently received is Tylox, a semisynthetic narcotic analgesic, indicated for

the relief of moderate to moderately severe pain. See Physicians’ Desk Reference

1593-94 (51st ed. 1997).

      In May of 1990, Dr. Dawson diagnosed claimant as suffering from

“[p]robable ocular migraines, possibly induced by the trauma of the battery

accident to his left eye.” II Appellant’s App. at 159; see also id. at 124 (Dr.


                                          -6-
Dawson’s hospital discharge report noting claimant’s “[c]hronic headaches of a

vascular migraine type”). Neither of the other doctors who examined claimant

during the relevant period questioned the existence of his headaches, see id. at

170 (record of 2/1/91 exam by in-house physician of claimant’s former employer

indicating diagnosis of “MIGRAINE NEC” and “VISUAL LOSS NOS”), 204

(consulting physician’s report referencing claimant’s “history of severe migraines

with loss of vision”), and there is other medical evidence in the record supportive

of claimant’s testimony, see id. at 164 (2/26/91 report from Dr. Dawson

indicating that claimant has an ocular migraine and cannot return to work until

2/28/91), 176 (5/22/90 report by Dr. Dawson indicating claimant “[r]estricted

from driving until migraines under control), 165 (in-house physician’s

recommendation that claimant not drive company vehicles, owned or rented, and

that “he be put in a position where he does not have to drive or do a great deal of

traveling”), 148 (notation in Dr. Dawson’s treatment notes of 9/17/92 reiterating

that “Pt. should not be driving”). Although the record includes no medical

opinion of disability, the medical evidence is certainly not inconsistent with

claimant’s testimony of severe migraine headaches with debilitating aftereffects.

      The ALJ notes that “[t]he only restrictions placed upon the claimant by his

treating or examining physicians, in the past, have been those of operation of

machinery, such as cars, and limitations placed upon his ability to travel.” Id.


                                         -7-
at 21. Given claimant’s uncontroverted but unexplored testimony that he left

Amoco because “[t]hey put me out on disability,” id. at 53, it is unclear whether

this is correct. Furthermore, although it is appropriate for the ALJ to consider the

extent to which the medical evidence corroborates the existence of a claimed

impairment, its severity, and the accompanying functional limitations, see Luna v.

Bowen, 834 F.2d 161, 165 (10th Cir. 1987), we note that the documented

restriction corroborates claimant’s testimony, and the absence of other medically-

imposed restrictions is not necessarily inconsistent with the claimed impairment

in this case.

       The ALJ further states, again without elaboration, that “[t]he medical

findings are not consistent with a significant pain causing etiology.”

II Appellant’s App. at 22. The statement indicates that the ALJ may have relied

on the lack of conclusive laboratory-type findings to confirm claimant’s diagnosis

and/or symptomatology. We are aware of no medical procedures to objectively

evaluate either the severity of a migraine or pain; and where no such conclusive

tests exist, the failure to produce such test results is surely an improper basis for

discrediting a claimant’s uncontroverted testimony. See Sisco v. United States

Dep’t of Health & Human Servs., 10 F.3d 739, 743-44 (10th Cir. 1993) (holding




                                          -8-
that the ALJ improperly impeached a claimant’s unrebutted testimony because of

the lack of a conclusive “dipstick” laboratory test for chronic fatigue syndrome). 1

      The ALJ also relied on claimant’s reported daily activities to discredit his

testimony, finding that they contradicted his claims concerning disabling pain and

significant functional limitations. In so concluding, the ALJ stated that “[t]he

claimant leads a rather active lifestyle. He fishes, he camps, and he drives when

he wants to.” II Appellant’s App. at 22. We do not consider this a fair

characterization of the record. At his administrative hearing, claimant testified to

a fairly sedentary and circumscribed lifestyle. See, e.g., id. at 56-57 (claimant’s

testimony concerning an average day). There is nothing in the record to indicate

that he drives “when he wants to.” Id. at 22. On the contrary, claimant testified

that he drives “pretty much” “only on good days” “[u]nless I’m awfully desperate

for a cigarette, and then I don’t go far away. . . . I feel like I’m totally drunk when

I’m out there in a transitional period, and if I’m having a headache there’s no



1
       Although conceding that credibility is the crucial issue in this case, see
Appellee’s Br. at 17, the Commissioner makes a similar argument in her brief,
contending that claimant has failed to establish a “medically determinable
impairment” because of the absence of “objective medical findings,” id. at 19.
However, just as claimant’s testimony cannot be discredited because of the
absence of a conclusive laboratory-type test, his treating physician’s unchallenged
diagnosis cannot be ignored for that reason. See Sisco, 10 F.3d at 743-44 (ALJ
erred in discrediting treating physician’s unchallenged diagnosis because of lack
of “dipstick” laboratory test for chronic fatigue syndrome where no such test
existed).

                                          -9-
way.” Id. at 58; see also id. at 176 (5/22/90 report of Dr. Dawson that claimant

“[r]estricted from driving until migraines under control), 165 (company doctor’s

recommendation on 2/6/91 that claimant not drive company vehicles). There is

some indication in the record that claimant still fishes, see id. at 110, 113, and

one unexplored reference in Dr. Dawson’s treatment notes to a

two-week camping trip, see id. at 150, which claimant apparently took over a year

after he claims to have become disabled. We do not believe that claimant’s

apparent participation in these activities, as established on this record, are

sufficient in and of themselves to warrant discrediting claimant’s testimony. The

ALJ focused in particular on claimant’s fishing, noting that “[f]ishing would be

an extremely hazardous occupation if the claimant were actually suffering from

loss of [vision] four to seven times a week.” II Appellant’s App. at 22. While the

ALJ’s observation might be accurate under certain circumstances, the evidence

seems to indicate that claimant does not fish often, id. at 113 (“1 day every other

month”), that he goes only when he expects a “good day,” id. at 59, and that he

does not go alone, id. at 205.

      The ALJ also appears to have relied heavily on the fact that claimant lives

alone and, for the most part, takes care of his own personal and household needs.

Claimant’s testimony indicates, however, that his particular activities in this

regard vary depending on whether he is having a good day, a bad day, or is in a


                                         -10-
so-called transition period. See id. at 57 (able to make his own breakfast and

lunch during transition periods, but not on a bad day), 58 (drives “pretty much”

“only on good days” and “weed eat[s] on [his] good days”), 59 (“hold[s]

[vacuuming] off to good days”). We find claimant’s account of his daily

activities substantially consistent with the kind of disability he claims to be

suffering, i.e., one that does not bother him 20 percent of the time, completely

incapacitates him 20 percent of the time, and results in debilitating aftereffects

the rest of the time. See Keller v. Shalala, 26 F.3d 856, 859 (8th Cir. 1994)

(testimony concerning daily activities not inconsistent with disabling headache

pain where claimant testified she did not engage in these activities when she had a

headache).

      In discrediting claimant’s testimony, the ALJ also relied on a conclusion

that “[t]he evidence indicates that the claimant’s migraine headaches, and his pain

in general, is adequately controlled with this current pain relief regimen.”

II Appellant’s App. at 22. Our review of the record does not reveal substantial

evidentiary support for this conclusion. There is certainly no medical opinion to

that effect. Although an examining doctor noted the “[claimant] has some relief

from his headaches with Tylenol #3 and Midrin” and that he is having “fair

results” with Calan, id. at 204, claimant testified that “his headaches were getting

more frequent until the doctor put [him] on Calan,” but that now “they’ve leveled


                                         -11-
out, stayed pretty consistent [at four to seven per week] since then,” id. at 52. He

also testified that although the Tylox will help the headaches “ease away,” it does

not stop them, explaining that “[i]t seems like they have to run their course.” Id.

at 54-55.

      Finally, the ALJ relied on purported inconsistent statements made by

claimant to his doctors concerning his use of alcohol and, without elaboration, the

fact that “claimant reacted in a harsh and an excited manner when he was told he

was no longer going to be given narcotic pain relief remedies by Dr. Dawson.”

Id. at 22. Our review of the record revealed no significant inconsistencies

regarding claimant’s purported use of alcohol, and we note that claimant’s

reaction to the possible withdrawal of narcotic pain medication is not inconsistent

with claimant’s testimony that his headaches cause him significant pain.

      We are left then with the ALJ’s observation that “claimant is suffering from

no loss of muscle mass or signs of atrophy,” and his conclusion that “claimant is

not lying in bed recuperating from migraine headaches as often as he alleges.” Id.

at 22. This is a legitimate observation, peculiarly within the province of the fact-

finder, but given the other errors in the ALJ’s credibility determination, it is not

sufficient to sustain that determination.

      The ALJ’s credibility determination must therefore be reversed. “When a

decision of the Secretary is reversed on appeal, it is within this court’s discretion


                                            -12-
to remand either for further administrative proceedings or for an immediate award

of benefits.” Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). Remand

for an immediate award is appropriate when additional fact finding would serve

no useful purpose. See Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989).

Here, the vocational expert testified that if claimant’s testimony was credible, he

would not be able to work. See II Appellant’s App. at 68-70. Accordingly, we

find no reason for additional administrative proceedings in this case, now five

years old, and instead exercise our discretionary authority to remand for an

immediate award of benefits.

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

of Oklahoma is REVERSED, and the case is REMANDED with directions to

remand the case to the Commissioner of Social Security for an immediate award

of benefits.

                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




                                        -13-
No. 96-5177 -- Pennington v. Chater

BRORBY, Circuit Judge, dissenting.


       As the majority recognized at the outset, the only issue on appeal is

whether the Administrative Law Judge's determination that Mr. Pennington's

testimony was "not always consistent with the documentary evidence or with

itself" is supported by substantial evidence in the record. However, while

purporting to apply a substantial-evidence standard to its review of the

Administrative Law Judge's credibility determination, the majority transgressed

the well-established boundaries of that standard by dissecting the record,

reweighing the evidence, and ultimately substituting its conclusions for those of

the trier of fact.



       This court has long recognized the Administrative Law Judge is "'optimally

positioned to observe and assess witness credibility.'" Adams v. Chater, 93 F.3d

712, 715 (10th Cir. 1996) (quoting Casias v. Secretary of Health & Human Servs.,

933 F.2d 799, 801(10th Cir. 1991)). Thus, while we do not afford absolute

deference to an Administrative Law Judge's credibility determination, Thompson

v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993), we "recognize that some

claimants exaggerate symptoms for purposes of obtaining government benefits,

and deference to the fact-finder's assessment of credibility is the general rule."

Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987); see also Gay v. Sullivan, 986
F.2d 1336, 1339 (10th Cir. 1993). Accordingly, we are free to overturn a fact

finder's credibility determination only where there is a conspicuous absence of

credible evidence to support that determination. See Trimiar v. Sullivan, 966 F.2d

1326, 1329 (10th Cir. 1992). We cannot overturn a credibility determination

simply because there is evidence in the record that supports a finding other than

the one the Administrative Law Judge made. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion. In reviewing the record, we may not reweigh the evidence nor

substitute our judgment for that of the Administrative Law Judge. Glass v.

Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). Reviewing the record with these

important boundaries in mind, I conclude there is substantial evidence to support

the Administrative Law Judge's credibility determination.



      The Administrative Law Judge found Mr. Pennington's testimony regarding

disabling pain from ocular migraine headaches to be "credible only to the extent

that it is reconciled with the objective medical evidence." More specifically, the

Administrative Law Judge noted Mr. Pennington's testimony regarding the

disabling effect of his pain was inconsistent with his own testimony concerning

his daily activities and sleep patterns, as well as the documented medical evidence




                                         -2-
itself. These objective observations and the resulting determination that Mr.

Pennington's credibility was limited plainly are supported in the record.



      For example, Mr. Pennington testified he is significantly functionally

restricted eighty per cent of the time -- he cannot function at all on days when he

has a headache (twenty per cent of the time) and can undertake only very limited

activity on days when he is either going into or coming out of a migraine

headache (sixty per cent of the time). Yet, he testified and documented on

various disability reports he regularly makes his own meals, keeps house, does

laundry, goes shopping, tends his pets, and sleeps eight to ten hours per night. In

addition, he occasionally goes fishing, enjoys nighttime photography, visits with

relatives, and drives his car on a weekly basis. On a Reconsideration Disability

Report completed in September 1992, Mr. Pennington represented he is unable to

do yardwork; however, on a pain questionnaire he completed in 1992, he

indicated his daily activities included household chores and mowing the yard.

Medical records indicate Mr. Pennington went camping and slept on the ground

for two weeks in 1992, after he had filed an application for Disability Insurance

benefits. This evidence amply supports the Administrative Law Judge's

determination Mr. Pennington's testimony concerning the nature and severity of




                                         -3-
his disability was credible only to the extent it was supported by objective

medical evidence.



      The Administrative Law Judge further noted Mr. Pennington's testimony

exhibited "embellishment, exaggeration, and a strong secondary gain motive."

Mr. Pennington's unsolicited statement that he believes he has paid his dues as

compared to those people who are drawing social security benefits but have never

paid anything into the social security program supports a reasonable conclusion

Mr. Pennington is motivated by secondary gain. The Administrative Law Judge's

observation that Mr. Pennington's testimony was embellished or exaggerated

reflects the claimant's demeanor as a witness. A claimant's demeanor is uniquely

apparent to the Administrative Law Judge -- it is not the type of observation we

can readily evaluate on the basis of a bare record. Since we have no basis on

which to question this subjective, yet important, conclusion, questions of

demeanor are correctly left for the fact finder. See Hargis v. Sullivan, 945 F.2d

1482, 1489 (10th Cir. 1991) (subjective measure of credibility peculiarly within

the Administrative Law Judge's judgment is one relevant factor to consider when

evaluating credibility of pain testimony).

      For these reasons, I would affirm the judgment of the United States District

Court for the Northern District of Oklahoma.


                                         -4-
