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

### MAR 30 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SIDNEY HARDMAN,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner, Social Security Administration,

Defendant-Appellee. No. 03-7056

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 02-CV-308-W)

Submitted on the briefs: Michael D. Clay, Tulsa, Oklahoma, for Plaintiff-App ellant. Sheldon Sperling, United States Attorney, Cheryl R. Triplett, Assistant United States Attorney, Muskogee, Oklahoma, and Tina M. Wa ddell, Regional Chief Counsel, Michael McGaughran, Deputy Regional Chief Counsel, Katauna J. King, Assistant Regional Counsel, Office of the General C ounsel, Region VI, Social Security Administration, Dallas, Texas, for Defendant-Appellee.

Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.

BALDOCK , Circuit Judge.1 The parties consented to proceed before a magistrat e judge pursuant to

28 U.S.C. § 636(c)(1).

2 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. -2- Claimant Sidney Hardman appeals from the magistrate judge’s order affirming the decision of the Commissioner of Socia l Security denying his application for disability insurance benefits. 1 Our jurisdiction arises under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. Because the Commissioner did not apply the correct legal standards and her decision is not supported by substantial evidence, we reverse and remand for further proceedings. 2 Claimant applied for benefits in 1996, alleging dis ability due to severe back pain. Claimant’s treating physician at the Veteran ’s Administration (VA) Outpatient Clinic, Dr. Ashcraft, reported in 1995 that claimant was unable to work because of disc degeneration, spurring, narrow ing of disc space, and lumbar arthrosis and left knee degeneration. A June 1995 CT scan and spinal x-ray showed early lumbar arthrosis and mild degenerative changes in the cervical region. In October 1996, Dr. Dalessandro, an exami ning physician, observed tenderness with palpation in the lumbosacral and up per dorsal area, positive SLR, and decreased range of motion of the lumbodorsal jo int. Dr. Ashcraft noted in-3-

July 1997 that claimant had limitation of motion inthe dorsal spine with severe tenderness, severe pain with loss of motion in the cervical spine, loss of motion in the lumbar spine, and an antalgic limp. In Dece mber 1998, Dr. Love, another VA physician, reported that claimant had obvious ba ck pain, decreased range of motion, positive SLR, and lumbar tenderness. Dr. L ove suspected lumbar spine disc disease and radicular pain, and scheduled an M RI. The VA cancelled the scheduled MRI, however. Another VA physician, Dr. Harris, examined claimant in September 1999 and reported that an EMG/nerve co nduction study did not reveal findings of radiculopathy, and the VA ag ain decided not to perform
an MRI. Claimant was last insured for disability benefits o n March 31, 1999. See Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993) (stating claimant must establish o nset of disability prior to date insured status expired). In June 2000, after the d ate claimant’s insurance expired, the VA did perform an MRI on claimant, which confirmed that he has extensive degenerative disc disease involving all levels of the lumbar and lower thoracic regions, and has herniated discs at L3-L4, L4-L5, and L5-S1, with spinal stenosis at the L4-L5 level. The VA’s report attributed cla imant’s complaints since 1995 of chronic low pain to the disc disease, herniated discs and spinal stenosis, and-4-

reported that there was a strong possibility claimant would require neurosurgery for these problems. Claimant’s application was initially denied in 1997 . After it was denied administratively and upon reconsideration, an admin istrative hearing was held in November 1997, before an administrative law judge ( ALJ). The ALJ concluded that the medical evidence supported a finding that claimant has severe cervical disc disease, severe low back pain and osteomalaciaof both knees. The ALJ found that claimant did not retain the residual fun ctional capacity (RFC) to return to any of his past relevant work, and could performless than a full range of sedentary work. Based on the testimony of a vocati onal expert (VE), the ALJ determined that the claimant was capable of making a vocational adjustment to certain sedentary jobs in the national economy, andconcluded at step five of the five-step sequential process used to evaluate a dis ability claim that claimant was not disabled. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing steps). The ALJ’s decision was remanded by the Appeals Coun cil. The Appeals Council ordered the ALJ to obtain updated medical r ecords, re-evaluate claimant’s subjective complaints of pain in compliance with 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p, 1996 WL 374186, g ive additional rationale for the ALJ’s determination of claimant’s RFC, obtain a dditional vocational-5-

testimony to clarify the effects of claimant’s limi tations on his occupational base, and determine when claimant last engaged in substantial gainful activity. A supplemental administrative hearing was held befo re another ALJ in May 2000, at which a VE testified. That ALJ’s deci sion gave only a very abbreviated and selective description of the medica l evidence, stating that he adopted the prior ALJ’s description of the medical evidence but not the prior ALJ’s conclusions and findings. The ALJ denied cla imant’s application for benefits at step four of the five-step analysis, co ncluding, contrary to the prior ALJ’s determination, that claimant did retain the RFC to perform a wide range of light work, subject to some limitations, and could return to his past relevant work as a security guard or plastic laminator. In reach ing this conclusion, the ALJ rejected claimant’s subjective complaints of pain, stating that his “credibility is diminished substantially because objective medical tests show that there is no basis for his allegations of pain and limitation.” Aplt. App., Vol. II at 28. Because claimant’s June 2000 MRI was performed afte r the date of the ALJ’s decision, claimant submitted that new evidenc e to the Appeals Council, together with the VA’s opinion that the MRI results were consistent with claimant’s reports of low back pain since 1995, pri or to the March 31, 1999 date he was last insured. The Appeals Council considere d the new MRI evidence, but concluded, without explanation, that it did not pro vide a basis for changing the-6-

ALJ’s decision. The Appeals Council denied review, making that ALJ’s decision the Commissioner’s final decision. The magistrate judge affirmed. “We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Angel v. Barnhart , 329 F.3d 1208, 1209 (10th Cir. 2003). “Substantial evidence is adequate relevant evidence that a reasonable mind might accept to support a conclusion.” Kepler v. Chater , 68 F.3d 387, 388-89 (10th Cir. 1995). Claimant argues that the ALJ failed to perform a pr oper credibility analysis in rejecting claimant’s subjective complaints of pa in and limitation. According to Social Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996), which governs an ALJ’s evaluation of a claimant’s description of symptoms, the evaluation must contain “specific reasons” for a credibility findin g; the ALJ may not simply “recite the factors that are described in the regulations.” Id . at *4. It is well-established that an ALJ’s findings with respec t to a claimant’s credibility “should be closely and affirmatively linked to subs tantial evidence and not just a conclusion in the guise of findings.” Kepler , 68 F.3d at 391 (quotation omitted). We agree with claimant that the ALJ did not comply with the legal standards of SSR 96-7p or Kepler

.-7-

In addressing claimant’s allegations of disabling p ain, the ALJ recited boilerplate language stating that full consideratio n had been given to claimant’s subjective complaints in accordance with the factor s set forth in 20 C.F.R. §§ 404.1529 and 416.929; SSR 96-7p, and Luna v. Bowen , 834 F.2d 161, 165 (10th Cir. 1987). The ALJ then rejected claimant’s allegations of pain and limitation using more boilerplate language that: claimant’s allegations are not fully credible becau se, but not limited to, the objective findings, or the lack thereof, bytreating and examining physicians, the lack of medication for se vere pain, the frequency of treatments by physicians and the lack of discomfort shown by the claimant at the hearing. Aplt. App., Vol. II at 28. We have held that use of this same boilerplate para graph is insufficient, in the absence of a more thorough analysis, to supp ort an ALJ’s credibility determination as required by Kepler

. Angel , 329 F.3d at 1213. While this boilerplate paragraph does list factors that are ap propriate to consider in assessing a claimant’s credibility, see Luna , 834 F.2d at 165-66, the ALJ failed to link or connect any of the factors he recited to any eviden ce in the record. He simply recited these factors, then concluded claimant’s al legations were not credible. This is precisely the type of “conclusion in the gu ise of findings” rejected in Kepler and many cases since; it is not enough for the ALJ simply to list the relevant factors; he must also “explain why the spe cific evidence relevant to each3 The Oslin and Clark unpublished dispositions are not being cited as

precedent, but rather for the purpose of noting that panels of this court have previously warned the Commissioner that the use of this boilerplate paragraph is insufficient in the absence of a thorough analysis closely and affirmatively linking the credibility determination to substantial and sp ecific evidence in the record. -8- factor led him to conclude claimant’s subjective co mplaints were not credible.” 68 F.3d at 391. We repeat: the use of “[s]tandard boilerplate lang uage will not suffice.” Briggs ex rel. Briggs v. Massanari , 248 F.3d 1235, 1239 (10th Cir. 2001). Such boilerplate language fails to inform us in a meanin gful, reviewable way of the specific evidence the ALJ considered in determining that claimant’s complaints were not credible. See id . More troubling, it appears that the Commissionerhas repeatedly been using this same boilerplate paragraph to reject the testimony of numerous claimants, without linking the conclusory statements contained therein to evidence in the record or even tailoring the par agraph to the facts at hand, almost without regard to whether the boilerplate paragraph has any relevance to the case. See, e.g., Angel , 329 F.3d at 1213; Oslin v. Barnhart , 69 Fed. Appx. 942, 947-48 (10th Cir. July 17, 2003) (unpublished disposition); Clark v. Barnhart , 64 Fed. Appx. 688, 691 (10th Cir. Apr. 22, 2003) (unpublished disposition). 3 As is the risk with boilerplate language, we are un able to determine in this case the specific evidence that led the ALJ to reject claimant’s testimony.-9-

See, e.g., Clifton v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996) (holding “[i] n the absence of ALJ findings supported by specific w eighing of the evidence, we cannot assess whether relevant evidence adequate ly supports the ALJ’s conclusion.”). Indeed, we cannot find record suppo rt for the ALJ’s reference to a lack of medication for severe pain or his ambiguo us statement about the frequency of treatments. Our review of the record demonstrates that claimant has regularly complained of, and sought medical treatme nt for, his back pain since 1995. Aplt. App., Vol. II at 233, 235, 237, 238, 2 39, 240, 242, 244-46, 313, 316-17, 321, 328, 330, 333, 334, 338. Claimant has taken numerous prescription medications for his pain, including Darvocet, id . at 107, Soma, id. at 238, Ultram, id . at 244, Voltaren, id . at 254, Lortab, id . at 316, Vicodin, id . at 330, Tylox, id. at 335, and other pain medications such as aspirin , Tylenol and ibuprofen. Claimant reports taking medication several times a day due to pain. Id. at 65, 68, 185, 213, 221. In addition, claimant has sought relief at a pain clinic, id. at 240, 244, 245, and has used a TENS unit, id . at 321. We are unable to reconcile this medical evidence with the ALJ’s boilerplate, conclu sory statement about a lack of medication and a lack of treatment, and, as noted, the ALJ did not attempt such an explanation. To the contrary, this evidence sup ports claimant’s testimony.
See SSR 96-7p at *7 (“In general, a longitudinal medic al record demonstrating an individual’s attempts to seek medical treatment forpain or other symptoms and to-10-

follow that treatment once it is prescribed lends s upport to an individual’s allegations of intense or persistent pain or other symptoms for the purposes of judging the credibility of the individual’s stateme nts.”). It was error for the ALJ to fail to expressly consi der claimant’s persistent attempts to find relief from his pain, his willingn ess to try various treatments for his pain, and his frequent contact with physicians concerning his pain-related complaints. See Winfrey v. Chater , 92 F.3d 1017, 1021 (10th Cir. 1996) (holding it is error for an ALJ to fail to consider factors relevant to the pain analysis which are supported by the record); Clifton , 79 F.3d at 1010 (ALJ must “discuss the uncontroverted evidence he chooses not to rely upon , as well as significantly probative evidence he rejects”). We conclude that the ALJ’s statement about a lack of medication for severe pain and the infreq uency of treatments is not supported by substantial evidence. The ALJ stated that claimant’s credibility was dimi nished substantially because objective medical tests show that there is no basis for his allegations of pain. The ALJ’s primary basis for this statement appears to be a March 1996 statement by Dr. Todd, a VA physician, that he had reviewed claimant’s visit to the pain clinic, and believed claimant’s symptom s were “significantly disproportionate to [the] findings,” and that claim ant was engaged in “disability seeking behavior.” Aplt. App., Vol. II at 343. Itdoes not appear from the record-11-

that Dr. Todd examined claimant; even if he did, hi s statement is conclusory and unsupported. Dr. Todd’s brief report does not disc uss or reference any supporting clinical data, or provide any explanation for his a ssertion that claimant’s symptoms are disproportionate to the medical findings. See Frey v. Bowen , 816 F.2d 508, 513 (10th Cir. 1987) (a “physician’s opinion [may] be rejected if it is brief, conclusory, and unsupported by medical evidence.”); see also Musgrave v. Sullivan , 966 F.2d 1371, 1374 (10th Cir. 1992) (evidence is not substantial if it really constitutes not evidence but mere conclusion ). Moreover, Dr. Todd’s suggestion that claimant is exaggerating his sympto ms is the only such suggestion in the record. Dr. Todd’s brief, unsupported state ment does not constitute substantial evidence to support the ALJ’s credibili ty determination. The ALJ also noted that a September 1999 EMG/nerve conduction study did not reveal findings of radiculopathy. The ALJ barely mentioned, however, all of the other medical evidence in the record indicat ing that claimant did suffer severe lumbar pain from degenerative disc disease. It is improper for the ALJ to pick and choose among medical reports, using portio ns of evidence favorable to his position while ignoring other evidence. See Switzer v. Heckler , 742 F.2d 382, 385-86 (7th Cir. 1984). Further, the ALJ did not h ave the benefit of the June 2000 MRI, which confirmed that claimant has extensi ve degenerative disc disease involving all levels of the lumbar and lower thorac ic regions, herniated discs-12-

and spinal stenosis, consistent with his persistentcomplaints of lower back pain since 1995. Given that substantial evidence does not support th e ALJ’s other explanations for rejecting claimant’s testimony, th e ALJ’s credibility analysis now rests entirely on his determination that there is a lack of objective medical tests evidencing pain to the degree asserted by cla imant. This basis alone is insufficient. See 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and persistence of y our pain or other symptoms . . . solely because the available objective medical evid ence does not substantiate your statements.”); see also Luna , 834 F.2d at 165 (“If objective medical evidence must establish that severe pain exists, subjective testimony serves no purpose at all.”). Furthermore, the new MRI evidence is obvio usly crucial to an evaluation of whether objective medical evidence supports clai mant’s allegations of pain and limitation. We cannot agree with the Appeals Counc il’s statement that the MRI evidence does not provide a basis for changing the ALJ’s decision. See Threet v. Barnhart , 353 F.3d 1185, 1191-92 (10th Cir. 2003) (remandin g for further proceedings where it did not appear the Appeals Cou ncil properly evaluated the entire record, including the material and relevant new evidence). In summary, the ALJ did not properly assess claimant’s credibility because he failed to give “specific reasons” for his determ ination, failed to closely and-13-

affirmatively link his credibility conclusions to the evidence, and failed to discuss the significantly probative evidence supporting cla imant’s allegations upon which he chose not to rely. Further, virtually all of th e reasons given by the ALJ for rejecting claimant’s testimony are not supported bysubstantial evidence. Consequently, the case must be remanded for furtherproceedings to assess claimant’s credibility. In addition, a remand is r equired to enable the ALJ to consider the relevant MRI evidence submitted to the Appeals Council. On remand, the ALJ shall evaluate claimant’s allegations of pain and limitation in accordance with the proper legal standards, and in particular, shall make specific evidentiary findings with respect to the c laimant’s subjective complaints of disabling back pain, taking into account claiman t’s consistent attempts to obtain medical treatment and his use of prescriptio n and other medications for severe pain. Because the ALJ failed to apply the correct legal s tandards in assessing claimant’s allegations of disabling pain, we REVERS E the decision of the magistrate judge and REMAND the case to the distric t court with instructions to remand the case to the Commissioner for further pro ceedings before the administrative law judge in accordance with this de cision.