* This order and judgment is not binding precedent, e xcept under the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

### SEP 2 2003 

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

NORMA J. ALEXANDER,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 02-5046 (D.C. No. 00-CV-918-M) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , 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 parties consented to proceed before a magistrat e judge in accordance

with 28 U.S.C. § 636(c)(1) and (3). -2- Plaintiff-appellant Norma J. Alexander appeals fromthe magistrate judge’s order affirming the Commissioner’s denial o f her application for supplemental security income benefits. 1 We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We affirm in part, and reverse and remand in part.

Background Plaintiff filed for benefits in December of 1997, i nitially alleging an onset disability date of March 2, 1990. She was born in 1953 and described her past work as pant and coat pressing, housekeeping, and t elemarketing. Aplt. App. Vol. 2, at 109. Plaintiff’s amended alleged o nset date was accepted as November 21, 1997. She claimed she was disabled du e to degenerative joint disease, with associated back and leg pain; diabete s; osteoarthritis; flat feet; and hypertension. Plaintiff first had lumbar spinal surgery in 1985 o r 1986. In March of 1998, she underwent a bilateral L4-5 hemilaminec tomy with L-5 discectomy. In June of 1998, she had a repeat L4-5 hemilaminect omy and discectomy, this time with bilateral posterolateral fusion. In Sept ember, her treating orthopedic physician, Dr. Boone, wrote that although plaintiff was better than she had been-3-

pre-operatively, she was still having some chronic pain “probably due to some chronic changes in the L5 nerve root.” Id. at 232. Dr. Boone anticipated plaintiff would need to pursue sedentary type work in the future and that “she probably will have some element of chronic pain in the lowerextremities due to a combination of scarring around nerve roots with s uperimposed diabetic neuropathy changes.” Id. Two months later, Dr. Boone wrote that he had told her that “after the first of the year [January of 1999] she could consi der returning to work . . . .” Id. at 230. Dr. Boone and his partners continued to r enew her pain medication prescriptions for Lortab, Nortriptyline, Soma, and Pamelor through February of 1999, when Dr. Boone referred her to her primary physician and advised her she might need to see a neurologist because of her diabetic neuropathy. Id. at 236-37. In April of 1999, in response to specific questions from plaintiff’s attorney, Dr. Boone offered his opinion that plaintiff was li kely to experience episodes of severe pain often enough to limit her ability to wo rk three to four hours per day, that the work needed to be of a sedentary nature, that she could miss an average of a day a week of work, and that her pain might re quire her to lie down approximately two hours daily. Id. at 274. Following a hearing, the administrative law judge (ALJ) found that plaintiff was disabled from November 21, 1997, through Decemb er 31, 1998, “when she-4-

had medical improvement in her condition related to her ability to work, and her disability ceased.” Id. at 21. The ALJ further determined that on January1, 1999, plaintiff was able to return to her previous job as a telemarketer or, alternatively, that there were other jobs she could perform. Id. The ALJ therefore denied benefits at steps four and five of the review process. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussingsequential evaluation process). On appeal, plaintiff contends that the ALJ erred be cause he failed to properly consider her treating physician’s opinion regarding her residual functional capacity (RFC) and because the ALJ faile d to perform a proper credibility analysis.

Standard of Review We review the agency’s decision “to determine wheth er the factual findings are supported by substantial evidence in the recordand whether the correct legal standards were applied.” Doyal v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations and citation omitted). However, “[a] decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a me re scintilla of evidence supporting it.” Bernal v. Bowen , 851 F.2d 297, 299 (10th Cir. 1988). In addition,-5-

the agency’s failure either to apply correct legal standards or to show us it has done so is also grounds for reversal. Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). Shortly after the ALJ’s decision was issued, we held in Shepherd v. Apfel , 184 F.3d 1196, 1198 (10th Cir. 1999), that the medi cal improvement standard, as defined by 20 C.F.R. § 404.1594(b)(1) and (for our purposes) § 416.994(b)(1)(i), applies in “closed period” cases such as this one, in which a plaintiff is determined to have been disabled for a finite perio d of time and thereafter regained the ability to work. The regulations define medical improvement as [a]ny decrease in the medical severity of [the] imp airment(s) which was present at the time of the most recent favorabl e medical decision that [the claimant was] disabled or continued to be disabled. A determination that there has been a decrease in med ical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [the] impairment(s).
See 20 C.F.R. § 416.994(b)(1)(i). In Shepherd , we detailed the process an ALJ must follow in determining whether a plaintiff has achieved medical improvement and, if so, whether this medical improvement is rel ated to the ability to work. Shepherd , 184 F.3d at 1201-02. The ALJ will need to apply this standard on remand. Finally, because the substantiality of the evidence is based on the record taken as a whole, we will “meticulously examine the record” in order to determine-6-

if the evidence supporting the agency’s decision is substantial, taking into account whatever in the record fairly detracts from its weight. Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994) (quotation omitted).

Treating Physician’s Opinion After determining that plaintiff was entitled to a period of disability from November 21, 1997, through December 31, 1998, the m agistrate judge determined that the record contained sufficient objective medi cal evidence supporting the ALJ’s finding of medical improvement to the degree that plaintiff’s ability to work was restored. After careful review of the evi dence, we cannot agree. In finding plaintiff disabled from her alleged onse t date of November 21, 1997, to December 31, 1998, the ALJ found that for that period her impairments “limited her to less than a full range of sedentarywork activity significantly compromised by his [sic] inability to do sustained work-related physical and/or mental activities in a work setting on a regular an d continuing basis.” Aplt. App. Vol. 2, at 15. The ALJ further concluded that the regulations therefore directed a finding of disabled because her ability to perform sedentary work was “significantly compromised.” Id. The ALJ also stated that “Dr. Boone stated that the claimant could return to work after the first of the year,” id. at 15, citing the letter in which Dr. Boone stated he had advised plaintiff that she “ could consider returning to work” after-7-

the first of the year (January 1999), id. at 230 (emphasis added). The ALJ further stated that “[a]s of January 1, 1999, the claimant was released to return to work as a result of improvement of her condition. She w as advised by her treating physician not to return to heavy or labor intensive work.” Id. at 16 (emphasis added). He then found that as of January 1, 1999, her impairments limited her to light level work activity, with certain restrictions. Id. As discussed below, however, the record does not show that claimant’s c ondition had improved as of January 1999. In support of his determination that plaintiff coul d return to work because of an improvement in her condition, as long as she did not return to heavy work, the ALJ cited another letter of Dr. Boone in which he referred to her inability to return to heavy work, but said she would need to pursue sedentary work. Id. at 232. This letter did not release her to return to work as of January 1, 1999, and included Dr. Boone’s opinion that plaintiff wou ld probably have “some element of chronic pain of the lower extremities du e to a combination of scarring around nerve roots with superimposed diabetic neuropathy changes,” id. , a point the ALJ did not mention. Instead, the ALJ determined that Dr. Boone’s April 1999 opinion (that plaintiff would be limited to three to four work ho urs per day) conflicted with the doctor’s other treatment records because “[o]n Nove mber 17, 1998, Dr. Boone-8-

stated that claimant could return to work after the first of the year.” Id. at 18. Because this is a misstatement of what Dr. Boone infact said, it cannot stand as substantial evidence of medical improvement. Nor d oes it suffice to meet the Commissioner’s requirements for evaluating opinion evidence, which require that “[w]e will always give good reasons in our notice o f determination or decision for the weight we give your treating source’s opinion.” See 20 C.F.R. § 416.927(d)(2). Further, in favoring Dr. Boone’s November 1998 opinion that plaintiff could consider returning to work in January of 1999 over his April 1999 opinion regarding her limitations (which also inclu ded his opinion that she might miss a day a week of work and need to lie down twic e a day), the ALJ impermissibly engaged in the type of selective and misleading evidentiary review we have long condemned. See Teter v. Heckler , 775 F.2d 1104, 1106 (10th Cir. 1985) (holding it was error for ALJ to summarily re ject some medical reports as based on inadequate findings when they are comparab le to reports ALJ found sufficiently detailed); see also Switzer v. Heckler , 742 F.2d 382, 385-86 (7th Cir. 1984) (holding it was improper for Secretary to useportions of report favorable to her position while ignoring other parts). By misch aracterizing Dr. Boone’s statements regarding plaintiff’s possible return towork, the ALJ created whatever inconsistency he thought there was. In sum, the AL J failed in his obligation to give Dr. Boone’s opinion “substantial weight unless good cause is shown to-9-

disregard it.” Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289-90 (10th Cir. 1995).

Credibility Analysis Plaintiff also argues that the ALJ failed to perform a proper credibility analysis. We agree. In addressing her allegations of disabling pain, the ALJ recited boilerplate language stating that full cons ideration had been given to her subjective complaints in accordance with the factor s set forth in 20 C.F.R. §§ 404.1529 and 416.929; SSR 96-7p, 1996 WL 374186; Luna v. Bowen , 834 F.2d 161, 165 (10th Cir. 1987), and Kepler v. Chater , 68 F.3d 387 (10th Cir. 1995). Aplt. App. Vol. 2, at 16. He did not, however, per form the required analysis. In addition, in determining that plaintiff’s statem ents were not supported by the record, he again misstates that very record. In discussing plaintiff’s allegations of disabling pain, the ALJ acknowledged her testimony that her pain was normal ly at seven on a scale of one to ten; that she has a burning pain in her feet, ag gravated by wearing shoes, standing, or walking; that her hands hurt and ache; that she can stand about thirty minutes; sit about forty minutes; that she can lifta gallon of milk; that during the day she sits in a recliner; and that she attends church about once a month. Id.
at 16-17.-10-

The ALJ stated that “[s]he has seen Dr. Studdard fo r routine medical care with only one complaint of feet pain on February 22, 1999.” Id. at 17. To the contrary, she complained again of foot pain and mus cle cramps five days later. Id. at 267. In fact, she had complained to Dr. Studdar d of her left foot being hard and swollen in December of 1997. Id. at 140. She had also complained of pain in her feet and ankles, with numbness in her toes, dur ing a consultative examination in April of 1998. Id. at 175-76. She complained of bilateral foot pain in April, June, July, and August of 1998. Id. at 205, 208, 210. Dr. Boone stated that this pain “could be related to scarring, epidural fibros is, or chronic nerve injury” or even “an element of diabetic neuropathy.” Id. at 207. She also reported in November that her feet were swelling. Id. at 238. When Dr. Boone referred her back to her primary care physician in February of 1 999, he noted that she might need to see a neurologist. She had reported foot p ain at that time, as well. Aplt. App. Vol. 2, at 236. The ALJ further opined that if plaintiff “were in the constant and disabling painful condition as alleged, it is reasonable to a ssume she would exhaust every means possible to obtain relief of that pain.” Id. at 17. He failed, however, to take note of her consistent, persistent attempts to relieve the pain through medication, an element critical when pain is allege d, including numerous reports that her medication was not working or that she wanted to try something2 Under the heading “consistency,” the adjudicator is told that “[e]specially

important are statements made to treating . . . med ical sources.” SSR 96-7p, 1996 WL 374186, at *5.

3 The ALJ emphasized that plaintiff had not seen Dr. Boone since November of 1998. Aplt. App. Vol. 2, at 17. The record sho ws, however, that she returned to and was in frequent contact with Dr. Studdard after that time. Id. at 265-72. -11- different. 2 See id. at 139-41, 143-44, 145-47, 154-55, 208-09, 236-37, 239-42, 244-54. As of 1999, after she returned to Dr. Studdard’s care, 3 she was still receiving prescription pain medication. Id. at 266-67. There is no suggestion from any medical source that she is exaggerating he r pain. In evaluating plaintiff’s subjective claims of pain , an ALJ’s findings on credibility “should be closely and affirmatively li nked to substantial evidence and not just a conclusion in the guise of findings.” Kepler , 68 F.3d at 391 (quotation omitted). In this case, we have only th e conclusion that plaintiff’s “reported activities are not indicative of her comp laints of totally disabling pain.” Aplt. App. Vol. 2, at 17. It is not sufficient, ho wever, for the ALJ to state in conclusory fashion that all claimant’s allegations have been considered or are not credible. Rather, the ALJ’s decision must contain specific reasons for his credibility determination. SSR 96-7p, 1996 WL 3741 86, at *2. Having failed to properly assess plaintiff’s credibility, in part bynot giving “specific reasons for the weight given to [plaintiff’s] statements,” as supported by the record, see id. at *4, and by failing to adequately consider (or sh ow us that he has considered)-12-

the other required factors, id. at *5-*8, the ALJ did not provide the documentatio n necessary to give plaintiff a full and fair review of her claim and to ensure a wellreasoned decision. Briggs ex rel. Briggs v. Massanari , 248 F.3d 1235, 1239 (10th Cir. 2001) (citing SSR 96-7p) (ALJ “may not i gnore evidence that does not support his decision, especially when the evidence is significantly probative”). Finally, we note that the ALJ’s determination of pl aintiff’s RFC does not comply with the requirements of SSR 96-8p, which re quires separate consideration “of seven strength demands: i.e., sitting, standing, walking, lifting, carrying, pushing, and pulling.” 1996 WL 374184, at *5. Nor did the ALJ complete the required function-by-function assessment. Id. at *3. Instead, he simply found “that her impairments limit her to lig ht level work,” Aplt. App. Vol. 2, at 16, a determination he later declared to be “reasonable.” Id. at 18. This was error because “at step 4 of the sequentialevaluation process, the RFC must not be expressed initially in terms of the exe rtional categories of sedentary, ‘light’ ‘medium,’ ‘heavy,’ and ‘very heavy’ work.” SSR 96-8p, 1996 WL 374184, at *3. Consequently, the ALJ’s determination of pl aintiff’s RFC is also not supported by substantial evidence. On remand, the ALJ must reevaluate plaintiff’s RFC in accordance with this ruling.-13- Conclusion Because this cause must be remanded for further pro ceedings, the ALJ will also need to reconsider plaintiff’s applicatio n under the medical improvement standards we announced in Shepherd . The judgment of the district court upholding the Commissioner’s determination of a clo sed period of disability from November 21, 1997, through December 31, 1998, is AF FIRMED. The judgment of the district court as to ending that period of d isability on December 31, 1998, is REVERSED, and the cause is REMANDED to the distr ict court with directions to remand the action to the Commissioner for furthe r proceedings consistent with this order and judgment.

Entered for the Court

Michael R. Murphy Circuit Judge