* On March 29, 2001, Larry G. Massanari became the Ac ting Commissioner

of Social Security. In accordance with Rule 43(c)( 2) of the Federal Rules of Appellate Procedure, Mr. Massanari is substituted f or William A. Halter as the appellee in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### JUL 3 2001 

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

BARBARA A. HINTON,

Plaintiff-Appellant,

v. LARRY G. MASSANARI, * Acting Commissioner of the Social Security Administration ,

Defendant-Appellee. No. 00-3408 (D.C. No. 98-CV-2185) (D. Kan.)

ORDER AND JUDGMENT **

Before EBEL , PORFILIO, and KELLY , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff Barbara A. Hinton appeals from an order o f the district court affirming the Commissioner’s determination that she is not entitled to Social Security disability benefits. We reverse and reman d for further proceedings. We review the Commissioner’s decision to determine whether his factual findings were supported by substantial evidence in light of the entire record and to determine whether he applied the correct legal s tandards. See Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted). In the course of our review, we may “neither reweigh the evidence no r substitute our judgment for that of the agency.” Casias v. Sec’y of Health & H uman Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Ms. Hinton alleged disability as of March 1995 due to degenerative disc disease. The administrative law judge (ALJ) determined thatshe was not disabled at step five of the five-step sequential process, s ee Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), as she could perform sedentary work with a sit/stand requirement.1 This statement was improper and undercuts the objec tivity of the ALJ’s

opinion. Congress drafted the social security statutes with the expectation that (continued...) -3- On appeal, Ms. Hinton argues that the ALJ’s finding s are not based on substantial evidence and he applied the wrong law. She also contends that the ALJ erroneously failed to give substantial weight t o the opinion of her treating physician. She maintains she did follow her physic ians’ prescribed treatment and when she did not, she presented a legally-sufficient reason for not complying. Finally, Ms. Hinton argues her testimony was credib le and she cannot work. Ms. Hinton was born in 1957 and is married with fou r minor children. She has five years of college and two years of vocation al training as a physical therapist. She worked as a physical therapist for approximately fifteen years before she injured her lower back while assisting apatient. She has not worked since March 24, 1995. The ALJ determined that Ms. Hinton was not disabledbecause she had never been hospitalized and had undergone no surgic al procedures and her testimony regarding her level of pain was not credi ble because she performed more daily activities than he thought she could wer e her pain as severe as she alleged. The ALJ also found that “the monies she h as received and might receive with respect to the Workers’ Compensation claim maypossibly have given claimant less motivation to return to the work force.” App., Vol. 1 at 14. 1 The1 (...continued)

claimants could receive both workers’ compensation and disability benefits for on-the-job injuries. See 42 U.S.C. § 424a; Richardson v. Belcher , 404 U.S. 78, 82-83 (1971). Thus, Ms. Hinton’s receipt of such b enefits has no bearing on her credibility. Cf. Eichel v. N.Y. Cent. R.R. , 375 U.S. 253, 255 (1963) (“it would violate the spirit of the federal statutes if the r eceipt of disability benefits under the Railroad Retirement Act . . . were considered a s evidence of malingering by an employee asserting a claim under the Federal Emp loyers’ Liability Act”). -4- ALJ determined that Ms. Hinton had not followed herdoctors’ recommended treatment in that she had failed to complete a workhardening program after being told that the program would be modified for her and she had decided not to undergo a spinal fusion. He concluded that her tre ating physician’s opinion that she was totally disabled was not supported by the m edical evidence. We cannot agree that substantial evidence supports the ALJ’s conclusion

. Further, we hold that the ALJ did not apply the cor rect legal standards in making his determination. In reviewing the impact of a claimant’s failure to undertake treatment on a determination of disability, we consider four elements: (1) whether the treatment at issue would restore cl aimant’s ability to work; (2) whether the treatment was prescribed; ( 3) whether the treatment was refused; and, if so, (4) whether the refusal was without justifiable excuse. Frey v. Bowen , 816 F.2d 508, 517 (10th Cir. 19 87); see also 20 C.F.R. § 404.1530

.2 Ms. Hinton has three treating physicians. Dr. Hopk ins is her personal

physician. Drs. MacMillan and Hood are her employe r’s workers’ compensation physicians. -5- The ALJ identified two instances in which he statedthat Ms. Hinton had not followed recommended treatment. He noted that Ms. Hinton had not completed a work hardening program. Ms. Hinton rep orted that the program increased her pain severely. Dr. Hood noted that he had stopped her course of treatment because she was getting worse. App., Vol . I at 130. In fact, Dr. Hood observed that he did “not have any suggestions that she has not already done.” Id. at 133. He pointed out that Ms. Hinton was taking pain medications, exercising, resting, and using heat and ice. He concluded that“we are pretty much stuck with things as they are.” Id. Ms. Hinton did receive recommended epidural stero id injections, but the benefits were short-lived and s he “slid[] downhill” thereafter. Id. The ALJ also noted that Ms. Hinton had refused to undergo a spin al fusion. No physician 2 opined that surgery would have restored Ms. Hinton ’s ability to work. In fact, the physicians stated either that t hey did not recommend surgery or that satisfactory results were uncertain. See App., Vol. I at 126 (Dr. Hood: “There is nothing surgical about this.”); 133 (Dr. Hood: “She is not a candidate for conventional surgery . . . .”); 159 (Dr. MacMil lan: “In view of the limited potential of success in treating back pain with eff usion, Ms. Hinton is justifiably-6-

apprehensive about pursuing surgical treatment.”); 178 (Dr. Hopkins: surgery is “an acceptable suggestion[, but] is more of a patie nt decision than a physician decision.”). Only Dr. Striebinger, a consulting physician, who felt that “her best chance of long term success would be with a fusion, ” expressed no reservations as to the desirability of surgery. See id. at 173. The opinions of Ms. Hinton’s treating physicians supply ample justification for her decision not to have the surgery during the time this case was pending before the ALJ. Cf. Soc. Sec. Reg. 82-59, 1982 WL 31384 at *4 [1975-1982 Rulings] Soc. Sec. Rep. Serv. (West) 793, 794 (1983 ) (individual’s failure to follow prescribed treatment is justified and will n ot preclude finding of disability if two treating physicians take opposing views regarding treatment, one recommending and one advising against the same treatment). Here, none of Ms. Hinton’s treating physicians unequivocally reco mmended the surgery. Over a year after the hearing before the ALJ, Dr. B ernhardt recommended that Ms. Hinton undergo a new surgical procedure wh ich would be more likely to produce successful results than prior methods. See App. at 210-211. Apparently, Ms. Hinton decided to have the surgery and it was p erformed November 1, 1997,3 This information, arising after the date of the ALJ ’s decision, was

presented only to the Appeals Council. The Appeals Council did not mention it in its decision. The ALJ should consider it on remand

. -7- approximately four months after Dr. Bernhardt proffered his opinion. See id. , at 209. 3 The ALJ also discredited Ms. Hinton’s reports of pa in. He noted that she had denied any back discomfort at the Surgicenter o f Johnson County. He failed to mention, however, that this statement was part o f the recovery room notes after she had an epidural steroid injection and referred only to the surgical procedure, not to her general physical condition. See id. at 120. The ALJ also noted that Dr. MacMillan had discharge d her from his care, implying that she was released to return to work. Dr. MacMillan was Ms. Hinton’s Workers’ Compensation physician. He d ischarged her because she had reached maximum medical improvement after havin g chosen not to have surgery. See id. at 181. However, he still considered her to be to tally disabled from work. See id. at 191. No physician has questioned the veracity of Ms. Hinton’s descriptions of her pain. All have concluded that she was totally disabled from working. See id. at 189 (Dr. MacMillan: Patient is temporarily total ly disabled since March 31, 1995); 175 (Dr. Hopkins: Currently she cannot work; uncertain whether she ever-8-

will be able to return to employment); 195 (Dr. Hop kins: “At the moment, I would consider her to be totally disabled for work activi ties.”). Thus, the record supports Ms. Hinton’s report of di sabling pain. Her daily activities are not inconsistent with this report. She testified that she reads and does light house work such as dusting and some pick ing up. She does prepare meals. She will go grocery shopping, but either he r husband or a child must complete the shopping as she must rest part way thr ough. She does not mop, sweep, vacuum, or garden. She walks seven-tenths o f a mile a day to a park where she lays down on a slide before she can return home. She will attend her children’s school activities. She occasionally goe s to the movies or out to dinner and church on Sunday. She needs to lay down for ha lf an hour every morning due to muscle spasms. In the afternoon, she watches her kids and plays games with them while laying down The ALJ rejected Dr. Hopkins’ opinions regarding Ms . Hinton’s functional capabilities finding them to be inconsistent. In J anuary, 1996, Dr. Hopkins stated that Ms. Hinton could stand, walk, or sit for only one-half hour at a time. She could stand for a total of three hours a day, walk for a total of two hours a day and sit for a total of three hours a day. In Septe mber, 1996, Dr. Hopkins stated that she could stand for one hour at a time for a t otal of two hours per day. He also stated that she could walk and sit for one-hal f hour at a time for a total of-9-

two hours per day for each activity. These inconsi stencies are not so extreme as to warrant discrediting Dr. Hopkins’ opinion. The Commissioner also notes that Dr. Hopkins’ opini on is inconsistent with that of The Back Center, where she was referred foran evaluation. The Back Center report stated that Ms. Hinton’s goal was to return to her prior work of physical therapy on a medium level of work with lif ting and ability to assume various body positions repetitively. The Center pr ojected that she would be able to lift up to twenty-two pounds frequently and elev en constantly. The report did not state that she had performed that amount of lif ting during testing. The Center did project that she would be able to return to the work she desired, but at no point, did The Center report that she was currently able to work. See id. at 102. The ALJ discredited Ms. Hinton’s testimony that she had to lay down every few hours during the day. He noted that no doctor had placed that restriction on her activities. In response to her attorney’s ques tion as to whether he could ask Dr. Hopkins about her need to lay down, the ALJ stated: [I]t’s strange that the medical files that I’ve see n never make any comment about [the need to lie down during the day] until a lawyer writes them in a letter on behalf of their client. Then they always say they have to lie down. . . . I’m telling you up fr ont though, he better give me a good reason. . . . since he hasn’t said it in a year and a half or any other doctors said it in a year and a h alf, he’d better give me findings to support his reasoning and I will loo k at it, let’s say with great care. . . . [I]f the doctor chooses to s ay, “Oh, yeah. She’s needed to lie down for a year and a half,” he’s goi ng to have to tell-10-

my why and I may accept it. I probably won’t, but I might since he’s never . . . said it before. Id. at 256-57. Thus, the ALJ clearly presented his in tent to reject Ms. Hinton’s testimony and Dr. Hopkins’ later opinion confirming her testimony because the opinion was obtained for the purpose of supporting Ms. Hinton’s testimony. In his opinion, the ALJ stated that Ms. Hinton’s testi mony that she needed to lie down was “a very common allegation in testimony in disability cases. In most claims, the allegation rests solely on claimant’s t estimony . . . . The undersigned finds that in the cases that he has dea lt with in which this allegation has been raised, a physician or oth er professional source has never directly observed the frequency wi th which a claimant actually lies down, and has rarely even es timated how frequently such a need might arise based on objecti ve medical findings. Id. at 15. The fact that no physician has observed a claimant throughout the day to verify the claimant’s reported activity and rest pe riods cannot be used to discredit a claimant’s report. Rarely, if at ever, will a physician track a patient throughout a day to verify the patient’s report. Further, the fact that the physician does not note that his patient reports lying down frequentlyis not indicative of the patient’s later veracity at a hearing. A patient g enerally will report pain levels and activities that increase that pain. The physic ian will report objective medical findings identifying the source of the pain. His f ailure to report the patient’s-11-

activities of daily living cannot be held against t he patient if objective medical findings support the patient’s testimony. The ALJ discredited Dr. Hopkins’s later submitted r eport which provided additional information the ALJ sought at the hearin g and which supported Ms. Hinton’s testimony, stating that it was “not supported by the totality of the medical record.” Id. at 18. “[I]n the absence of other evidence to und ermine the credibility of a medical report, the purpose for wh ich the report was obtained does not provide a legitimate basis for rejecting it.” Reddick v. Chater , 157 F.3d 715, 726 (9th Cir. 1998); see also Morales v. Apfel , 225 F.3d 310, 317-18 (3d Cir. 2000) (when rejecting treating physician’s opinion, ALJ may not make “speculative inferences from medical reports” and m ay not reject it outright based on “his or her own credibility judgments, speculati on or lay opinion” (quotations omitted)) ; Lester v. Chater , 81 F.3d 821, 832 (9th Cir. 1995) (purpose for whi ch medical report is obtained is not legitimate basis for rejecting it as report procured by claimant is entitled to no less weight than report procured by Commissioner: “The Secretary may not assume that doctors routin ely lie in order to help their patients collect disability benefits. ” (quotation omitted)). An ALJ may certainly question a doctor’s credibility when the opinion, as here, was solicited by counsel. See, e.g. , Saelee v. Chater , 94 F.3d 520, 522-23 (9th Cir. 1996) (ALJ justified in finding treating physician’s “report-12-

untrustworthy because it was obtained solely for th e purposes of the administrative hearing, varied from [physician]’s o wn treatment notes, and was worded ambiguously in an apparent attempt to assist[plaintiff] in obtaining social security benefits”). The ALJ may not automatically reject the opinion for that reason alone, however. The ALJ here clearly indicated prior to receipt of the opinion that he was going to reject it. This is no t permissible. We note that at no time has any physician questioned Ms. Hinton’s repo rts of the level of pain she experiences. There have been no allegations of mal ingering, nor has she been thought to have given less than her best efforts inany testing. In conclusion, we hold that the ALJ’s opinion is no t supported by substantial evidence in the record. In light of th e record and the applicable law, Ms. Hinton clearly suffered from a degenerative dis c disease that was totally disabling. We must reverse the ALJ’s decision. “When a decision of the [Commissioner] is reversed on appeal, it is within this court’s discretion to remand either for furthe r administrative proceedings or for an immediate award of benefits.” Ragland v. Shalala , 992 F.2d 1056, 1060 (10th Cir. 1993). “Outright reversal and remand fo r immediate award of benefits is appropriate when additional fact finding would s erve no useful purpose.”
Sorenson v. Bowen , 888 F.2d 706, 713 (10th Cir. 1989) (quotation omi tted). The record supports a finding of disability. This case is therefore in a posture to be-13-

remanded for an immediate award of benefits for at, a minimum, a closed period of time from March 1995 to the date Ms. Hinton reco vered from her surgery. Further development of the record is necessary to d etermine improvement since that date. If Ms. Hinton recovered sufficiently fr om the surgery to perform substantial gainful activity, benefits should be te rminated as of that date. The judgment of the United States District Court for th e District of Kansas is REVERSED, and the case is REMANDED with directions to remand, in turn, to the Commissioner for further proceedings consistentwith this order and judgment. We further direct that this case be assi gned to a different ALJ on remand.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge