* This order and judgment is not binding precedent, e xcept under the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

### FEB 17 1999 

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

DENNIS F. ROBINSON,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-5073 (D.C. No. 96-CV-1026-J) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , 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) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Dennis F. Robinson appeals froman order of the district court affirming the Commissioner’s decision denying his application for Supplemental Security Income (SSI) and social secur ity disability benefits. Appellant filed for disability and SSI benefits on April 25, 1994. He alleged disability based on back and nerve injury, high blo od pressure, an enlarged heart, gout in both feet, and being a recovered alcoholic and a carrier of hepatitis B. The agency denied his applications initially and on reconsideration. Appellant received a de novo hearing on June 16, 19 95, before an administrative law judge (ALJ). The ALJ determinedthat appellant could not return to his past relevant work but that he retain ed the residual functional capacity (RFC) to perform the full range of light w ork, reduced by his inability to perform work requiring repetitive bending, stooping , or climbing, and his need to alternately sit or stand at thirty-minute intervals . Applying the MedicalVocational Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.21 (the grids) as a framework, the ALJ concluded that appel lant was not disabled within the meaning of the Social Security Act. The Appeal s 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 &-3-

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). Appellant phrases his first issue as follows: “The administrative law judge erred in his determination of the appellant’s resid ual functional capacity and his findings regarding the appellant’s credibility for pain.” Appellant’s Br. at 23. Appellant’s discussion of this issue is poorly organized. With some effort, we have isolated six specific arguments advanced by ap pellant from the eleven pages of his brief devoted to this argument. They are as follows: (1) the record contains insufficient evidence to show that appella nt retained the capacity to perform a significant number of light jobs on a reg ular and continuing basis; (2) the ALJ failed to support his findings concerni ng appellant’s RFC with medical evidence in the record; (3) the ALJ’s RFC d etermination is based upon adverse credibility findings which are not supporte d by substantial evidence; (4) the ALJ failed to link his findings concerning appellant’s credibility to substantial evidence, as required by Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995); (5) the ALJ erroneously treated his case on a one-dimensional basis by considering his condition at the time of the hearin g, when appellant had recuperated from previous surgery, rather than at a ll times since the alleged onset-4-

of disability; and (6) the ALJ failed to place the burden of proof on the Commissioner at step five to establish his RFC. There is no indication that appellant raised the bu rden of proof argument before the district court. Accordingly, we do not consider it. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). We will addre ss the other five arguments he makes. We consider first whether there is sufficient evide nce to support the ALJ’s conclusion that appellant can perform the full range of light work, reduced by his inability to perform work requiring repetitive bend ing, stooping, or climbing, and his need to alternately sit or stand at thirty-minu te intervals. Having carefully reviewed the evidence, including the opinions expre ssed by appellant’s treating physicians, we believe this conclusion is supportedby substantial evidence, with the exception of the ALJ’s evaluation of appellant’ s nonexertional complaint of pain. Appellant argues that the ALJ failed to conduct a p roper analysis of his pain. He contends that the ALJ failed to consider pertinent factors in evaluating the credibility of his pain complaint, and failed t o tie his credibility findings to specific evidence in the record. In evaluating the credibility of a claimant’s subjective complaint of disabling pain, the ALJ sho uld consider such factors as “a claimant’s persistent attempts to find relief for h is pain and his willingness to try-5-

any treatment prescribed, regular use of crutches o r a cane, regular contact with a doctor, . . . the possibility that psychological di sorders combine with physical problems[,] . . . the claimant’s daily activities, and the dosage, effectiveness and side effects of medication.” Luna v. Bowen , 834 F.2d 161, 165-66 (10th Cir. 1987). It is not enough, moreover, for the ALJ simply to list these factors; he must also “explain why the specific evidence releva nt to each factor led him to conclude claimant’s subjective complaints were not credible.” Kepler , 68 F.3d at
391. Here, the ALJ identified and discussed some of the factors pertinent to his evaluation of appellant’s complaint of pain. The A LJ did not, however, expressly consider appellant’s persistent attempts to find re lief from his pain, his willingness to try various treatments for his pain, and his frequent contact with physicians concerning his pain-related complaints. It is error for the ALJ to fail to consider factors relevant to the pain analysis w hich are supported by the record. See Winfrey v. Chater , 92 F.3d 1017, 1021 (10th Cir. 1996). Judging from the record, these factors should have been con sidered. The ALJ found that appellant takes only nonprescrip tion pain relievers. This finding is not supported by substantial eviden ce. Appellant reported at the hearing that he was taking pain medication. See Appellant’s App. Vol. II at-6-

49-50. Appellant’s list of medications, completed June 16, 1995, shows that he was taking prescription pain medication prescribed by Dr. Davis. See id. at 246. The ALJ also found appellant not credible because h e had made inconsistent statements about the restriction that pain placed on his ability to walk. The ALJ found appellant’s statement at the t ime of his application that he could walk a mile each day inconsistent with his later statement at the hearing that he could walk just ten minutes before having t o rest. See id. at 26. These statements are not necessarily inconsistent, howeve r: the first statement deals with how far appellant could walk in a day, whereas his statement at the hearing described how far he could walk at a time. The ALJ should have recognized this, given the testimony elicited by his questioning of appellant: Q Okay. And how far are you able to – how much ti me? A Well, I spend about ten minutes walking. Q And then you have to sit down and then you get b ack up and walk the other way ten minutes? A Yes, sir. Id. at 49. In sum, the ALJ’s evaluation of appellant’s complai nt of pain was both incomplete and based upon factors which are unsuppo rted by substantial evidence. Because a credibility assessment requires consideration of all the factors “in combination,” see Huston v. Bowen , 838 F.2d 1125, 1132 n.7 (10th Cir. 1988),-7-

when several of the factors relied upon by the ALJ are found to be unsupported or contradicted by the record, this court is precluded from weighing the remaining factors to determine whether they, by themselves, a re sufficient to support the ALJ’s credibility determination. We must therefore remand to allow the ALJ to reconsider his pain analysis, and to conduct such f urther proceedings as may be necessary as the result of such reconsideration. We next consider whether the ALJ erred by failing t o consider appellant’s condition at all times pertinent to his application . Appellant argues that his medical condition at the time of the hearing did no t present a clear picture of his disabling impairments. By the time of the hearing before the ALJ, he argues, he had recuperated from his previous back surgery and was in better condition than he had been in the previous two years. He claims that the ALJ’s failure to consider the seriousness of his condition as he exp erienced it during the two-year time period prior to the hearing requires reversal. The ALJ’s decision shows that he did consider the m edical evidence concerning the previous time periods in question. Moreover, appellant’s argument misapprehends the nature of the disabilitydetermination. In order to obtain disability benefits, a claimant must show th at he has a disability which “can be expected to result in death or . . . has la sted or can be expected to last for a continuous period of not less than 12 months.” 2 0 C.F.R. §§ 404.1505(a),-8-

416.905(a). Medical records concerning appellant’ s condition prior to the hearing date are certainly relevant to this determi nation. The ALJ cannot, however, award prospective benefits based on a cond ition which he determines is no longer disabling as of the hearing date. Alternatively, appellant may be arguing that the AL J should have awarded him a closed period of disability benefits. If app ellant previously had suffered a period of disability due to a condition which was n o longer disabling by the hearing date, he might be entitled to a closed period of benefits. See Pickett v.
Bowen , 833 F.2d 288, 289 n.1 (11th Cir. 1987) (discussin g “closed period” benefit cases). Although it is not clear whether appellant is attempting to make this argument, we have carefully reviewed the recor d and conclude that there is substantial evidence to support the ALJ’s determination that appellant’s exertional impairments did not cause him to meet di sability requirements during any period relevant to his claim. On remand, the A LJ will, of course, need to reconsider the pain issue as it relates to the enti re relevant time period. In his next issue, appellant contends that the new evidence he presented to the Appeals Council provided a basis for changing the ALJ’s decision of June 23, 1995. In a letter dated September 5, 1995, Dr. Tri nidad opined that the condition of appellant’s back had progressively worsened sinc e May 1995. In December-9-

1995, Dr. Detweiler stated that appellant’s pain ha d increased in severity since May 1995. In January 1996, appellant underwent a f urther back surgery. The Appeals Council determined that the new evidenc e did not provide a basis for changing the ALJ’s decision. It did not give specific reasons for this finding. We note, however, that evidence presented to the Appeals Council is considered only to the extent that it is new, mater ial and relevant to the pertinent time period. See 20 C.F.R. §§ 404.970(b), 416.1470(b); O’Dell v. Shalala , 44 F.3d 855, 859 (10th Cir. 1994) . Appellant argues that the evidence is relevant to t he time period prior to the ALJ’s June 23, 1995 decision. He contends that his doctors’ statements about the worsening of his condition “since May 1995" proves that his condition had worsened before the ALJ decided his claim, and thatthis new evidence therefore buttresses his claim of disabling pain at the heari ng. The statements of appellant’s doctors must be under stood in context, however. It is not at all clear from the record th at the worsening of appellant’s condition began in May 1995. May 1995 was the month in which the Workers’ Compensation Court for the State of Oklahoma adjudi cated appellant’s workers’ compensation claim. See Appellant’s App. Vol. II at 249. Thus, the May 19 95 date provided a “jumping off point” for discussion of the worsening of his condition by appellant’s workers’ compensation doct ors.2 If appellant believed that his condition had worsen ed after the ALJ hearing,

his remedy was to initiate a new claim for benefits as of the date his condition became disabling. See Sizemore v. Secretary of Health & Human Servs. , 865 F.2d 709, 712 (6th Cir. 1988). -10- This interpretation is borne out by other evidence in the record. Appellant reported to his physician, Dr. Hicks, that he “had been doing quite well through the year of 1995, until August 1995 . Since then he had developed increasing severe problems involving his back.” Id. at 269 (emphasis added). There is no evidence that appellant saw a doctor for his compla ints of worsened back pain prior to September 1995. A worsening in August 19 95 would certainly have occurred after (or “since”) May 1995; however, it d id not occur prior to the ALJ’s decision. We conclude that the new evidence does n ot show a deterioration in appellant’s condition prior to the ALJ’s decision and therefore does not rob the Commissioner’s decision of substantial evidence. 2 Finally, appellant contends that the ALJ’s hypothet ical question to the vocational expert (VE) was incomplete. He argues that the ALJ should have included the fact that he needs a cane to walk, that his feet are painful and that they swell when he stands. He also complains that the ALJ stated in his hypothetical that he should be able to stand “for ashort period of time” without defining that term. Id. at 76.-11-

As the ALJ noted, Dr. Fielding told appellant to st op using his cane and to increase his walking. Although appellant claimed t hat he had gout, substantial evidence supports the ALJ’s finding that his only m edically documented foot problem consists of osteoarthritis in both his great toes. To the extent that impairment would prevent appellant from standing fo r long periods of time as required by light work, the VE testified in respons e to follow-up questions by the ALJ that there were jobs which appellant could perf orm at a sedentary, unskilled level. See id. at 78. Appellant further argues that the ALJ’s hypothetica l was incomplete, because it was based on assumptions about his credi bility which are unsupported in light of the evidence which he subsequently subm itted to the Appeals Council. We do not understand appellant to argue that the AL J was required to prophesy that he would submit additional evidence. Rather, we think he is simply attacking, on another ground, the Appeals Council’s decision not to remand this case to the ALJ. As such, his attack fails. As we have already noted, the post-hearing evidence did not provide a basis for c oncluding that appellant’s impairments were of greater severity on or before the date of the ALJ’s decision than otherwise indicated by the medical evidence pr eviously available. We conclude that the ALJ adequately described appellan t’s impairments in the hypothetical which he posed to the VE.-12-

The judgment of the United States District Court f or the Northern District of Oklahoma is AFFIRMED in part, REVERSED in part, and REMANDED with instructions to remand to the Commissioner for further proceedings on the pain issue in accordance with this order and judgment.

Entered for the Court

Michael R. Murphy Circuit Judge