* This order and judgment is not binding precedent, e xcept under the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

### MAY 26 2000 

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

WAYNE L. FORD,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 99-5134 (D.C. No. 97-CV-621-EA) (N.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and HENRY , 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. Claimant Wayne Ford appeals from the district court’s order affirming the decision of the Commissioner of Social Security. I n that decision, the-2-

Commissioner denied claimant’s application for disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. § 423. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and reverse.
I. Legal standards Our review is limited to determining whether the Co mmissioner’s decision is supported by substantial evidence on the whole r ecord and comports with relevant legal standards. See Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800-01 (10th Cir. 1991). Claims for disability benefits are evaluated according to the five-step sequential pro cess set forth in 20 C.F.R. § 404.1520. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) . At step four of the process, “the claimant must sho w that the impairment prevents [him] from performing work he has performed in the past.” Id. at 751 (quotation omitted and alteration in original). If the claima nt is successful at this stage, then the claimant has met his burden of proof, establishing a prima f acie case of disability. The evaluation process thus proceeds t o the fifth and final step: determining whether the claimant has the res idual functional capacity (RFC) “to perform other work in the nation al economy in view of his age, education, and work experience.” Id. (citation and footnote omitted). At step five, the burden of proof is on the Commissioner “to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform e xist in the national economy.”-3-

Sorenson v. Bowen , 888 F.2d 706, 710 (10th Cir. 1989) (quotation omi tted). The Commissioner’s decision “must be based on evidence offered at the hearing or otherwise included in the record.” 20 C.F.R. § 404 .953(a).

II. Relevant facts Claimant’s problems began when he injured his back in two automobile accidents, with the first accident occurring in 1967. See Appellant’s App. at 174, 328, 354. Despite lumbar and thoracic back pain, h e managed to work as a concrete finisher until 1982 when he had the second car wreck, see id. at 130, 174; he then suffered a heart attack in 1983. See id. at 170. He resumed work sometime in 1984, but had nominal earnings in 1985 and 1987. See id. at 130. Claimant drank heavily between 1977 and 1992. In 1 987, he was admitted to the hospital and diagnosed with alcoholic hepatitis, he patic encephalopathy, alcoholic liver disease, and renal cell carcinoma. See id. at 239. Doctors removed the cancerous kidney. In 1987, claimant applied for but was denied social security disability benefits based on these conditions, backproblems, and numbness in arms and legs. See id. at 93-94, 164. He did not appeal from this denial

. Claimant stated in 1988 that he had no medical insu rance and could not pay his doctors. See id. at 91. In 1988 and 1989, claimant was unsuccessfu l at attempts at alcohol treatment. See id. at 301. He was admitted to the hospital in 1992 for acute alcohol poisoning. See id. at 285. During that examination his-4-

doctor noted “positive perilumbar muscle spasm.” Id. at 286. After this admission, claimant successfully completed a course of in-patient treatment for alcoholism and remained sober through the time of the administrative hearing in 1995. See id. at 45. He also successfully completed training as a major appliance repairman in 1993. After abstaining from alcohol, claimant began havin g severe, chronic headaches and also began seeking treatment for his chronic back and neck pain. See id. at 308, 354. When Dr. Sokolosky, his long-term tr eating physician, could not determine the cause of claimant’s chronic heada ches, in August 1992 he admitted him to the hospital for a computed tomography (CT) scan of the head and neck. See id. at 311. The CT scan revealed “cortical atrophy wi th associated ventricular and cisternal enlargement.” Id. at 312. Dr. Sokolosky then referred claimant to an ear, nose, and throat specialist, Dr . Dushay, who in September 1992 diagnosed cervical myositis, cervical adenitis , laryngitis, and septal deviation, and diagnosed his headaches as “muscle c ontraction cephalgia [sic].” Id. at 317-19. Dr. Sokolosky diagnosed claimant as hav ing “myositis,” and his medical records note that claimant was treated for chronic low, mid, and cervical back pain and headaches from April 1992 through May 1995. See id. at 360-368, 388.-5-

In June 1993, the Oklahoma state department of rehabilitative services sent claimant to Dr. Hastings, a consulting neurologist. See id. at 354. Dr. Hastings examined claimant, noted that claimant had not had extensive studies, and also noted that the head CT scan was “unremarkable.” Id. Claimant’s neurological exam revealed normal gait, coordination and upper r eflexes, but “somewhat diminished” reflexes at the knee and no reflexes at the ankle. Id. He “d[id] not see any signs of active cervical or lumbar radiculo pathy, thoracic disc disease or significant peripheral neuropathy” but stated that claimant “may have some symptoms . . . relate[d] to previous alcoholic peri pheral neuropathy” and suggested he be treated with muscle relaxers and anti-inflammatory drugs. Id. at 355. Without making assessments on claimant’s ability to lift or move large appliances, he opined that claimant was capable of functioning as a major appliance repairman and had “no neurologic disability.” See id. X-rays taken in July 1993 showed minimal degenerati ve joint changes in claimant’s right hip, and ones taken in November 19 95 showed additional degenerative joint changes in the right shoulder an d both feet, and diffuse lumbar spondylosis between the L3 and S1 vertebraes. See id. at 419, 422-25. Dr. Sokolosky treated claimant with osteopathic adj ustments and a variety of anti-inflammatory drugs, narcotic pain relievers, and anti-depressants. See id. at 360-68, 378. In April 1994, after claimant had taken 150 Tylenol III tablets in-6-

one month for pain, Dr. Sokolosky requested consult ations from a neurologist and a specialist in pain management. See id. at 375. Dr. Eichert, a neurological surgeon, found “clinica l evidence of a chronic lumbar radiculopathy, most likely from stenosis” in August 1994. Id. at 379. CT scans of his back showed “bilateral facet hypertrophy with ligamentous hypertrophy” at the L3 to L5 levels, mild disc spac e narrowing at the L5-S1 levels, and “facet arthrosis of the L3, L4, and L5 levels,” but with no stenosis. Id. at 380-82. Dr. Sorenson, of the Pain Institute of Tulsa, examined and treated claimant between May and November 1994. See id. at 384-86. He reviewed the CT scan and stated that “it is possible facet irrit ation L5, S1 level. Also has paravertebral muscle spasming to the cervical area. Most intense discomfort is in lower lumbar.” Id. at 384. Dr. Sorenson explained that [w]ith his history of multiple injuries, the progre ssive pain symptomatology and on examination of the films . . . there are multiple components associated with his pain sympto ms. There are areas of significant muscle spasming located th roughout the posterior serratus, rhomboid muscles, the cervical musculature and also the paravertebral gluteal muscles. Trigger po int areas were located in some of these muscles and there were app arent facet discomfort also located. I do feel the headaches a re associated more with some of the degenerative joint disease, myofascial and arthritic problems in these areas. Id. at 392. Dr. Sorenson prescribed medications and s uggested the possibility of injections and block techniques. See id. In 1995, Dr. Sokolosky diagnosed2 Medium work is defined as the ability to lift up to fifty pounds, with

frequent lifting of up to twenty-five pounds. 20 C .F.R. § 404.1567(c). -7- continuing headaches and arthritis, stated that he “suspect[ed] fibromyalgia,” and continued prescribing various medications. Id. at 388. Claimant’s application for benefits was originally denied on April 12, 1994, after Dr. Luther Woodcock, a medical consultant forthe state, determined (without examining claimant) that his condition was not disabling. See id. at 102-111. Dr. Woodcock reviewed only Dr. Sokolos ky’s treatment records dated February 26, 1991 to March 11, 1994 in reachi ng his conclusion that claimant maintained the capacity to occasionally li ft fifty pounds, frequently lift twenty-five pounds, stand and/or sit six hours in an eight-hour workday, and perform unlimited pushing and pulling. 2 See id. at 104, 111. Claimant challenged the denial and requested a hearing before an admini strative law judge (ALJ). At the hearing in October 1995, claimant testified that he still had chronic headaches and that he could not walk very far or si t for very long because of the osteoarthritic pain in his toes, feet, knees, hips, and back. See id. at 48-49. He had to alternate sitting with lying down during the day and could not sleep well at night because of his need to change positions often. See id. at 49-50, 61. He could not use his hands to hold and squeeze or p ull because of joint pain. See id. at 57, 61. He testified that he could not take th e medications that were-8-

most effective against inflammation and pain becaus e they impacted negatively on his liver and remaining kidney, and his doctor h ad told him there was nothing else he could do for him. See id. at 62-63. He further testified that he did not have the money to take “heated pool” treatments rec ommended by his doctor. Id. at 64. At step four of his disability analysis, the ALJ fo und that claimant was unable to return to his former employment, see id. at 28, a conclusion that is supported by substantial evidence. He found, howev er, that claimant’s statements concerning his impairment and its impact on his abi lity to work were “not entirely credible in light of discrepancies between the clai mant’s assertions and information contained in the documentary reports, the reports of the treating and examining practitioners, the medical history and th e findings made on examination.” Id. at 30. After hearing testimony from a vocational expert, the ALJ concluded at step five that claimant was not di sabled because he could perform a full range of light work, including lightand sedentary hand packaging and sedentary telemarketing work. See id. at 31-33, 70-71. III. Discussion Claimant argues that the ALJ did not properly evalu ate and consider his combination of impairments because the ALJ misinterpreted the medical records and erroneously refused to give credence to his tes timony regarding disabling-9-

pain. See Luna v. Bowen , 834 F.2d 161, 165-66 (10th Cir. 1987) (listing fa ctors that ALJ should consider when determining the credi bility of subjective claims of pain). We agree. Specifically, the ALJ stated that claimant’s doctor did not make a diagnosis of headaches. Our review of the recordbelies this finding, as Dr. Sokolosky, Dr. Dushay, and Dr. Sorenson all dia gnosed chronic cephalalgia and/or headaches as one of claimant’s medical conditions. See id. at 311, 318, 368, 392. The ALJ recognized that claimant’s CT sc ans showed osteoarthritis in the back, hips, knees, and feet, but then concluded that “[t]here is no evidence of any osteoarthritis on objective examination or on any finding.” Id. at 30. The CT scan itself contradicts this conclusion. The ALJ next focused on the fact that “[t]here is n o objective medical evidence showing a limitation on the claimant’s abi lity to walk, stand, or sit, so long as such physical activities are consistent with light work.” See id. Although it is true that none of claimant’s physicians expre ssly placed limitations on claimant’s abilities to walk, stand, or sit, he was not working during 1992-95 and none of the treating physicians were evaluating himfor social security disability purposes. Thus, the absence of such limitations inthe medical record means nothing. See Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993) (stating that the Commissioner can not meet the bur den of proving that a claimant-10-

can perform work at a particular RFC level by relyi ng on the absence of contraindication in medical records). The ALJ commented that one of claimant’s treating p hysician’s “offered him facet injections which were turned down,” see Appellant’s App. at 30, apparently as a factor supporting his credibility determination, see Teter v. Heckler , 775 F.2d 1104, 1107 (10th Cir. 1985) (setting outrequirements that must be met before claimant’s failure to undertake treat ment will preclude recovery of disability benefits). The medical record shows that Dr. Sorenson discussed the

“ aspects of injections and block techniques” in his first v isit with claimant, which claimant preferred “not to try at this time,” see Appellant’s App. at 392 (emphasis added), but it appears that trying injections remai ned an option that was discussed at a later visit, see id. at 385. Dr. Sorenson tried several different type s of medications during his treatment of claimant. See id. at 384-85. The ALJ did not ask claimant at the hearing why he did not try the injections. On appeal, claimant states that he could not afford the inject ions that cost $500 each, and that there was no evidence that using them would al low him to return to work. See Appellant’s Br. at 21. The fact that claimant had not undergone injection treatments at the time of the hearing is not, stand ing alone, sufficient evidence of a lack of credibility.-11-

Critically, claimant’s complaints of disabling painand limitations associated with that pain are related to and consis tent with the medical conditions diagnosed and treated by his treating physicians. Thus, contrary to the ALJ’s findings, there were no discrepancies between the c laimant’s statements and the medical record. The ALJ cited no other “evidence” or factors supporting his finding regarding credibility. “Findings as to credibility should be closely and affirmatively linked to substantial evidence and no t just a conclusion in the guise of findings,” and “failure to make credibility find ings regarding . . . critical testimony fatally undermines the [Commissioner’s] argument that there is substantial evidence adequate to support his conclu sion that claimant is not under a disability.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotations and citations omitted). Because the ALJ’s credibility finding is not supported by substantial evidence, we cannot uphold it. The ALJ cited to no specific evidence supporting hi s conclusion that claimant “retains the residual functional capacity to perform the exertional demands of light work” with no significant non-exertional limitations to limit that range of work. Appellant’s App. at 31. The C ommissioner argues that Dr. Hasting’s 1993 consultative opinion that claimant could work as a major appliance repairman provides support for the ALJ’s conclusion. It does not appear that the ALJ relied on that opinion, perhaps because repairing major-12-

appliances is apparently not considered to be lightwork. We also note that Dr. Hasting’s opinion was admittedly given without benefit of the CT scans and X-rays taken later in 1993-94 and without awareness of claimant’s osteoarthritis. See id. at 354. Later neurological examinations also cont radicted Dr. Hasting’s neurological findings. See id. at 379. Although the ALJ did not mention Dr. Woodcock’s rep ort and in fact rejected Dr. Woodcock’s findings that claimant coul d perform medium work, the Commissioner also argues that this report provi des substantial evidence to support the ALJ’s findings and conclusions. We dis agree. In the section in which Dr. Woodcock was to explain how and why the medical evidence supports his conclusions, he stated that claimant had a degenerative disease of his spine and that the treating physician reported pain and muscl e spasm with decreased range of motion and no neurological deficits. See id. at 104. Certainly, these statements do not support his conclusions that clai mant could perform medium work. He also concluded, without explaining , that “pain does not limit further.” Id. We are at a loss to understand how the specific f indings made by Dr. Woodcock could be based on Dr. Sokolosky’s reco rds that did not include any statements regarding the claimant’s physical capabilities, see id. at 108, or on the very limited medical records that he reviewed, espe cially in light of claimant’s allegations in his application that he had headache s all the time, his back stayed-13-

sore, and it hurt to move because of pain in his arms and legs. See id. at 114. Dr. Woodcock’s conclusions do not provide support f or the ALJ’s findings that claimant can do a full range of light or sedentary work. See Gatson v. Bowen , 838 F.2d 442, 448 (10th Cir. 1988) (noting the “sus pect reliability” of the views of consulting physicians who fill out the RFC forms when the forms bear no explanation of the basis for the conclusions and ar e filled out without examining the claimant). We conclude that the Commissioner has failed to est ablish that claimant maintained the RFC to perform a full range of lightor sedentary work unlimited by pain. Usually, we would remand to the agency for a supplemental hearing at which testimony by a vocational expert may be pr esented on the impact of plaintiff’s pain on his ability to work within the RFC. See Thompson , 987 F.2d at 1493. The vocational expert testified at the hearing, ho wever, that if claimant could not sit or stand for any length of time, the light-level jobs would be impacted, see Appellant’s App. at 73; that if he had constant pa in in his joints, severe headaches, and sleep deprivation from pain, his cognitive skills in all jobs would be “problematic,” id. at 74; and that if the osteoarthritis caused a lotof pain in his joints, it “would be problematic for a work setting,” id. at 76. We also note that, at the time of the administrative h earing, claimant was 531⁄2 years old, which is “approaching advanced age” under the regulations. See 20 C.F.R.-14-

Pt. 404, Subpt. P, App. 2 § 201.00(g) (approaching advanced age is fifty to fifty-four years old). Claimant is now fifty-eightyears old, which is considered to be “advanced age.” Under the medical and vocati onal guidelines, even when an individual of advanced age can perform a full ra nge of light or sedentary work but must perform unskilled labor because he has no transferable skills from his previous work, as in this case, see Appellant’s App. at 70-71, he is considered to be disabled. See 20 C.F.R. Subpt. P, App. 2, Tables 1, 2. Outright reversal and remand for immediate award of benefits is appropriate when additional fact finding would serve no useful purpose. See Harris v. Secretary of Health & Human Servs. , 821 F.2d 541, 545 (10th Cir. 1987). The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED and the case is REMANDED to the district court with instructions to remand to the Commissioner foran immediate award of benefits. Entered for the Court

Monroe G. McKay Circuit Judge