* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### FEB 2 1998 

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

RUSSELL L. WILLIAMS,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-7060 (D.C. No. 96-CV-136) (E.D. Okla.)

ORDER AND JUDGMENT **

Before ANDERSON , McKAY , and LUCERO , 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. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Russell L. Williams appeals the district court’s affirmance of the final decision by the Commissioner of Social Securi ty denying his application for disability insurance benefits. Because the decisio n is not supported by substantial evidence, we reverse and remand for further proceed ings. In August 1992, plaintiff underwent surgery for can cer of the soft palate, in which the soft palate and most of the hard palate w ere removed. He underwent radiation therapy from October 1992 through January1993. His medical records through April 1995 showed no recurrence of the canc er. Since the surgery and radiation, plaintiff has been treated for several s ide-effects, including headaches, mouth pain, pain upon swallowing, and a persistent dry mouth. He has lost most of his teeth and now wears dentures, as well as an oral prothesis to cover the palate defect. He also has been treated for foot p ain due to an unusually high arch and degenerative joint disease, and for ulcers . In addition, plaintiff has been diagnosed with mental retardation. In July 1993, plaintiff filed his first application for disability benefits. This application was denied on August 30, 1993, on the g round that plaintiff’s cancer was not expected to be disabling for twelve continu ous months. On February 11, 1994, plaintiff filed his current application, alle ging an inability to work due to-3-

cancer, headaches, weakness, a dry and burning mouth, and right foot pain. After a hearing, an administrative law judge (ALJ) determ ined that plaintiff could return to his former work as a machinist or machine tender. After considering several new exhibits, the Appeals Council denied re view, making the ALJ’s decision the final decision of the Commissioner. T he district court affirmed the Commissioner’s decision, and this appeal followed. We review the Commissioner’s decision to determine whether it is supported by substantial evidence and whether corre ct legal standards were applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richa rdson v. Perales , 402 U.S. 389, 401 (1971) (quotations omitted). We may neither re weigh the evidence nor substitute our judgment for that of the Commissione r. See Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Plaintiff argues that the ALJ’s rejection of his cl aims of headache and mouth pain is unsupported by substantial evidence. The ALJ found plaintiff’s claims incredible based on the lack of objective fi ndings, the lack of medication for severe pain, the infrequency of treatment, and the lack of discomfort shown by plaintiff at the hearing. He noted that although t he record contained a few limited complaints of headaches prior to August 30, 1993, there was no evidence-4-

thereafter that plaintiff complained of or was treated for headaches. He noted also that the record references to plaintiff’s dry mouth did not indicate any mouth pain. Finding no nonexertional impairments to redu ce plaintiff’s ability to perform medium work, the ALJ concluded that he coul d return to his former employment as a machinist or machine tender. Upon reviewing the record, we conclude the ALJ’s fi ndings are not supported by substantial evidence. The record show s a fairly consistent history of treatment for headaches and mouth pain since plaint iff’s surgery. See R. II at 142 (1/5/93 - oral pain, burning); at 137 (3/9/93 - pai nful swallowing); at 135 (7/20/93 - headaches); at 161 (8/3/93 - mouth pain and heada ches); at 157 (9/20/93 - headaches); at 155 (11/12/93 - headaches, sore thro at); at 226-28 (1/25/94 & 2/1/94 reports of chronic headaches and mouth pain) ; at 200 (2/25/94 - face pain); at 230 (11/16/94 - headaches, 4/25/95 - headaches); and at 231 (3/24/95 - sinus CT scan). The record also contains an extensive history of narcotics prescriptions to treat these symptoms, including at least twenty-one prescriptions and refills of Percoset, Lortabs (hydrocodone bitartrate), Tylenol #3, Tylenol #4, and Synalgos DC (dihydrocodeine bitartrate). At least eleven of these prescriptions or refills were given after August 30, 1993. See id. at 157 (9/20/93 - Tylenol #3 thirty tablets); at 200 (9/24/93 - Tylenol #3 fifty tablet s plus four refills, 2/25/94 --5-

Lortab 7.5 twenty tablets); at 198 (3/16/94 Tylenol #4 forty tablets); and at 230 (11/16/94 - Percoset twenty tablets, 2/7/95 - Tylen ol #4, 3/6/95 Synalgos DC - thirty tablets). In addition, although plaintiff’s prior unappealed decision bars a finding of disability before August 1993, his treatment for headaches and mouth pain should not have been ignored in determining th e existence and continuous nature of his conditions. See, e.g. , Robertson v. Sullivan , 979 F.2d 623, 625 (8th Cir. 1992) (noting review of medical evidence predating prior denial often necessary to decide whether claimant disabled durin g relevant period). The ALJ’s failure to recognize plaintiff’s treatmen t history for headaches and mouth pain undermines his conclusions regarding plaintiff’s credibility and the effect of plaintiff’s severe impairments on his residual functional capacity. Further, the ALJ’s conclusion that plaintiff could perform his former work as a machinist or a machine tender is deficient because he did not consider whether plaintiff’s need for narcotic pain medication wouldaffect his ability to work with machinery. This is especially true in light of pla intiff’s uncontradicted testimony that the medications made him sleepy. For these re asons, the Commissioner’s final decision is contrary to the record, requiring reversal. Plaintiff argues also that the Commissioner’s decis ion is unsupported by substantial evidence based on Dr. Ogundipe’s opinio n, which was submitted to the Appeals Council after the hearing. Dr. Ogundip e, a consulting cancer-6-

specialist, examined plaintiff in January 1994 and opined that plaintiff was unable to perform his former work because of his headaches , excessive tearing, and extreme dryness of the mouth, in addition to his sp eech difficulties. Denial of review by the Appeals Council therefore embodied it s conclusion that Dr. Ogundipe’s opinion did not provide a basis for modi fying the ALJ’s decision.
See O’Dell v. Shalala , 44 F.3d 855, 859 (10th Cir. 1994). Under these circumstances, we consider the new evidence as partof the record in evaluating whether substantial evidence supports the Commissio ner’s decision. See id. Dr. Ogundipe’s opinion that plaintiff cannot perform his former work is uncontradicted by any other medical evidence in the record. This provides an additional basis, therefore, for concluding the Com missioner’s decision that plaintiff can return to his former work is without substantial evidence. The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED, and the case is REMANDED for further proceedings. In light of evidence that there is a high probabili ty of plaintiff’s cancer recurring, the Social Security Administration is ordered to expedite plaintiff’s case. The mandate shall issue forthwith.

Entered for the Court Monroe G. McKay Circuit Judge