* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 26 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RAY A. LARGE,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellant. No. 98-5174 (D.C. No. 97-CV-325-J) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.1 The Commissioner follows a five-step sequential eva luation process

to determine whether a claimant is disabled. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The claimant bears t he burden of establishing a prima facie case of disability at steps one throu gh four. See id. at 751 n.2. If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimantretains sufficient RFC to perform work in the national economy, given his age , education and work experience. See id. at 751. -2- Plaintiff-appellant Ray A. Large appeals from an or der of the district court affirming the Commissioner’s decision denying his application for Social Security disability and Supplemental Security Income benefit s (SSI). Appellant filed for these benefits in July 1994. He alleged disabilitybased on back problems, shortness of breath, emphysema, chest pain, and dep ression. The agency denied his applications initially and on reconsideration. On October 5, 1995, appellant received a de novo he aring before an administrative law judge (ALJ). The ALJ determinedthat appellant retained the residual functional capacity (RFC) to perform lightwork, subject to his dizziness and his need to change position during the work day . He found at step four 1 that appellant could not go back to his past relevant wo rk. He further determined at step five, however, that there were a significant n umber of other jobs which appellant could perform in the national or regional economy. The ALJ concluded that appellant was not disabled within the meaning of the Social Security Act.-3-

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 &
Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantia l 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). In his first issue, appellant contends that the ALJ failed to evaluate properly the evidence of his physical impairments and to con sider the vocational impact of the impairments at step five of the sequential eval uation. Specifically, appellant argues that the ALJ did not properly analyze his co mplaint of disabling back pain and ignored the opinions of his treating physicians that he is disabled. Our cases establish a three-step inquiry concerning a claimant’s allegation of disabling pain. A claimant who alleges disabili ty from a pain-producing impairment must first demonstrate the existence of that impairment by objective medical evidence. See Luna v. Bowen , 834 F.2d 161, 163 (10th Cir. 1987). Once he has done so, the ALJ must then determine whethera loose nexus exists between the proven impairment and the claimant’s su bjective complaint. See id.-4-

at 163-64. If these two criteria are met, the ALJ must then review all of the evidence, including the claimant’s subjective accou nt of the severity of his pain, to determine whether the pain is disabling. See id. The ALJ analyzed appellant’s complaint of disabling back pain as follows: The medical evidence shows that the claimant has un dergone a prior surgery on his lumbar spine. The claimant’s treati ng neurosurgeon finds, based on sophisticated medical tests, that t he claimant does not have any impingement from a bulging or herniated di sk in his lumbar spine. . . . The claimant has normal findings with respect to his back and legs with normal ranges of motion. Appellant’s App., Vol. II at 21. It is not clear at which step of the Lunatest the ALJ rejected appellant’s claim of disabling back pain. He must have found t hat appellant satisfied the first step of the analysis, however. The ALJ specificall y stated that appellant’s back pain limited him to performing light work. See id. at 22. For the same reason, appellant also satisfies the second step, because h is impairment can “reasonably [be] expected to produce some pain.” See Luna , 834 F.2d at 164. This takes us to the third step, at which the ALJ must consider b oth objective indications and the claimant’s subjective accounts of the severity of his pain. We begin with the objective medical evidence. Appe llant underwent back surgery after injuring himself in 1986. On Novembe r 28, 1994, he obtained an MRI of his lumbar spine. The radiologist, Dr. Truo ng, interpreted the MRI as follows:-5-

1. L3-4: Right paracentral disk herniation causing spinal stenosis. 2. L4-5: Diffuse disk bulge. 3. L5-S1: Central disk bulge with possible right p aracentral disk herniation extending to the right lateral recess wi th possible impingement of the right S1 nerve root. Appellant’s App., Vol. II at 281. In a letter dated December 20, 1994, Dr. Benner, a neurosurgeon, stated that appellant “had an MRI scan performed which didshow a right central disk bulge, although [I] don’t feel it is causing his sp inal stenosis.” See id. at 278. It should be noted that Dr. Benner did not reject the diagnosis of spinal stenosis; he merely stated that it was not caused by the right c entral disk bulge. Dr. Benner did not specifically disagree with the radiologist’ s conclusion that a central disk bulge at L5-S1 could be impinging on the right S1 n erve root. The ALJ’s conclusion that “claimant does not have any impinge ment from a bulging or herniated disk in his lumbar spine,” see id. at 21, inappropriately overstates Dr. Benner’s conclusions. Dr. Benner also noted that appellant had moderate, diffuse degenerative changes at the L4-5 level, “focal right paracentral abnormality” and distortion of the nerve root. See id. at 278. He recommended an epidural steroid inject ion, a conservative treatment he suggested in light of app ellant’s problems with diabetes. He had earlier advised appellant, howeve r, that the steroid injection was only one approach and that surgery was also an opti on. See id. at 279.-6-

In discrediting appellant’s subjective complaints o f pain, the ALJ relied heavily on a consulting physician’s observation that appellant had no reduced range of motion in his lumbar region. He ignored t he MRI results and Dr. Benner’s recommendations, and misread Dr. Benne r’s statements about appellant’s condition. Even if the ALJ reached per missible conclusions from the objective medical evidence, his analysis was still improper because he failed to evaluate properly the subjective factors relating t o appellant’s pain. An ALJ must determine whether a claimant’s subjecti ve claims of pain, though greater than that usually associated with hi s impairment, are credible. See
Luna , 834 F.2d at 165. In making this determination, h e should consider such factors as a claimant’s persistent attempts to find relief forhis pain and his willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor . . . the pos sibility that psychological disorders combine with physical probl ems . . . the claimant’s daily activities, and the dosage, effect iveness, and side effects of medication. Id. at 165-66. It is not sufficient for the ALJ simply to list the se factors and to state that he has considered them. He is required to “explain why the specific evidence relevant to each factor led him to conclude [the] c laimant’s subjective complaints were not credible.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Here, the ALJ failed to analyze subjective factors relati ng to appellant’s claim of back-7-

pain under the applicable standards. We must there fore reverse and remand this case for further proceedings. On remand, in addition to reconsidering his pain an alysis, the ALJ should either accord substantial weight to the opinions of appellant’s treating physicians, Drs. Economides and Kunkel, that he is totally disabled, or give specific, legitimate reasons for disregarding their opinions. See Goatcher v. United States Dep’t. of Health & Human Servs. , 52 F.3d 288, 289-90 (10th Cir. 1995). If reconsideration of his pain analysis or these physi cians’ opinions requires him to revisit his RFC determination, the ALJ should give specific consideration to Dr. Economides’ RFC evaluation, submitted to the Ap peals Council, which indicates that appellant is incapable of performing any substantial gainful activity.

In his second issue, appellant argues that the ALJ’ s hypothetical questions to the VE did not accurately reflect his impairment s. He argues that the hypotheticals were deficient because they did not t ake into account his treating physicians’ opinions of disability and Dr. Economid es’ RFC evaluation. In light of the proceedings we order on remand, we need not consider this issue further except to state that if the ALJ modifies his RFC ev aluation on remand after reconsidering the doctors’ opinions, the RFC evaluation, or his pain evaluation,-8-

he should of course also obtain further testimony f rom a vocational expert to meet the Commissioner’s burden at step five of the seque ntial analysis. The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED and REMANDED with instructi ons to REMAND to the Commissioner for further proceedings consistentwith this order and judgment.

Entered for the Court

Monroe G. McKay Circuit Judge