* This order and judgment is not binding precedent, e xcept under the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

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 2 1999 

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

SHEILA BARNES,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-5156 (D.C. No. 97-CV-514-M) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.

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. Claimant Sheila Barnes appeals from the district co urt’s order affirming the Social Security Administration’s denial of disabili ty benefits. Claimant filed an application for disability benefits in 1994 with analleged disability date of December 14, 1993. Her application was denied init ially and again upon reconsideration. After a hearing, the administrati ve law judge (ALJ) found claimant not disabled and denied benefits. The App eals Council denied her request for review. Claimant filed a complaint in federal district court. That court affirmed the agency’s denial of benefits. Our jurisdiction arises under 42 U.S.C. § 405(g) an d 28 U.S.C. § 1291. We review the agency’s decision to determine whether the factual findings are supported by substantial evidence on the record vie wed as a whole and whether the agency applied correct legal standards. See Castellano v. Secretary of Health
& Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). On appeal, claimant contends that the ALJ ignored record medical eviden ce, improperly discounted the credibility of her testimony at the hearing, and fa iled to properly apply correct legal standards in evaluating her allegations of pa in. We agree, and remand this case to the agency for further proceedings.1 It is also indicated by what appears to be boilerpl ate language that the ALJ

carefully reviewed all of the medical evidence exce pt those exhibits omitted because they “relate to a time not covered by the c laim, illegibility, duplicity, different physicians reporting the same diagnoses, physician duplication of hospitalization records, failure to state a diagnos is, statement of the claimant’s complaints without a diagnosis, prescription of med ication only, etc.” Appellant’s App. at 21. This kind of general discl aimer does not excuse an ALJ from careful consideration of all the relevant evid ence and from linking findings to specific evidence. See Huston v. Bowen , 838 F.2d 1125, 1133 (10th Cir. 1988). Further, because the ALJ does not identify which exhibits fall within the parameters of this list, we cannot tell which exhib its he omitted. This failure may itself be grounds for reversal. See Baker v. Bowen , 886 F.2d 289, 291 (10th Cir. 1989). Indeed, actual reliance on the boilerplate could itself result in reversal, since certain of the ALJ’s stated criteria for omitting consideration of medical exhibits–such as the failure of a physician to stat e a diagnosis–contradict an ALJ’s duty to consider all relevant medical evidence, see id. , 20 C.F.R. § 404.1527(d). This is especially true where, as h ere, the ALJ relies on a paucity or lack of complaints to treating sources on the re cord to reject claimant’s allegations of disabling pain. -3- The common basis for appellant’s challenges to the agency’s ruling is the ALJ’s apparent decision not to consider claimant’s medical records predating her alleged disability date. This decision is indicate d by the ALJ’s statements that claimant “complained of headaches only once in the medical evidence,” and that no objective medical evidence demonstrated a problem with leg pain. Appellant’s App. at 22. 1 As claimant notes in her brief, however, her hist ory of back and leg pain, headaches, and corresponding treatment is wel l documented in the medical record. While we acknowledge that there is little medical evidence after the alleged disability date, the medical evidence priorto that time is clearly relevant to the impairments and pain that claimant is now alleging. See Gardner v. Brian ,2 We note further that the ALJ cited claimant’s appar ent comfort at the

hearing as a basis for his finding that her complai nts were not fully credible. (continued...) -4- 369 F.2d 443, 447 (10th Cir. 1966). The ALJ may no t simply ignore that medical evidence and then base his rejection of claimant’s allegations on a lack of relevant evidence. Further, the ALJ compounded this error by discounti ng claimant’s credibility based on the supposed lack of medical e vidence corroborating her complaints. Her testimony at the hearing about herback and leg pain and headaches was consistent with her complaints in the medical evidence predating her alleged disability date. Because that evidence is relevant, the ALJ’s failure to consider it undermines his decision regarding claimant’s credibility. See Huston , 838 F.2d at 1133. The ALJ also found claimant’s testimony about her p ain not credible based on his observation that claimant has not regularly sought treatment for headaches or back pain since her alleged disability date. Hi s opinion states that this failure is inconsistent with the amount of pain alleged, but does not mention claimant’s testimony at the hearing that she could not afford to go to a doctor regularly or to have her medication prescriptions filled. See Appellant’s App. at 56-57. This failure to consider claimant’s testimony also undermines his credibility determination. See Thompson v. Sullivan , 987 F.2d 1482, 1490 (10th Cir. 1993). 22 (...continued)

However, the hearing transcript indicates that clai mant asked to stand during the hearing and stated that her pain level was seven on a one-to-ten scale. See Appellant’s App. at 45, 42. While the ALJ acknowle dged claimant said she was in pain during the hearing, see id. at 20, the record does not support the ALJ’s statement of comfort at the hearing, and he cites n o observations that would support his statement. -5- We also agree with claimant that the ALJ improperlyapplied the classic pain analysis set forth in Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987). Therein, this court rejected the argument that disabling pai n must be demonstrated by the severity of the impairment involved. Instead, we c oncluded that disability claimants must demonstrate only a “loose nexus” between the pain alleged and the medically determinable impairment. Id. at 164. “Accordingly, if an impairment is reasonably expected to produce some pain, allegations of disabling pain emanating from that impairment are sufficiently con sistent to require consideration of all relevant evidence.” Id. Here, in considering claimant’s allegations of back pain, the ALJ not only failed t o consider all of the relevant evidence, as noted above, he also relied on the sev erity of the impairment involved to reject claimant’s allegations. The med ical evidence shows that claimant suffered from a ruptured disk and subseque nt lumbar strain. The ALJ stressed that X-rays showed only mild degenerative disk disease and that an MRI showed only a slight bulge at L5-S1. See Appellant’s App. at 20. He concluded that there was only “a minimal basis for pain,” id. at 22, and that her diagnosis of3 Additionally, although not raised on appeal, we not e that the ALJ erred in

assessing claimant’s residual functional capacity. Claimant testified that she could lift only five pounds, using both hands. See Appellant’s App. at 45. She testified that lifting a gallon of milk out of the refrigerator caused pain down her (continued...) -6- lumbar strain “is consistent with only mild back pain, not disabling pain,” id. at 23. This is exactly the sort of analysis that Luna rejected. The ALJ should have considered all of the relevant evidence regarding c laimant’s allegations of pain instead of relying almost exclusively on the medica l record. Further, although the ALJ did recite some of the factors set out in Luna in connection with claimant’s allegations of disabling pain, he failed to link th ose factors with medical evidence on the record. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Finally, claimant also argues that the ALJ posed anincorrect hypothetical to the vocational expert (VE), and ignored VE testi mony favorable to her. We need not reach this issue, given our decision to re verse and remand the case for further proceedings. We do note, however, that the ALJ’s failure to consider all of the medical evidence relevant to claimant’s alle gations also allowed him to ignore the VE’s testimony at the hearing that if cl aimant suffered headaches to the extent alleged–and we also note that her testimony was consistent with the medical evidence predating her alleged disability d ate–she would be unable to maintain employment because of absenteeism from work. See Appellant’s App. at
64-65. 33 (...continued)

back and across her chest. There is evidence in th e medical record that one of claimant’s treating physicians limited her lifting at work, and claimant testified that her employer did not allow her to lift anything at work. See id. at 51, 308. Nonetheless, the ALJ concluded that claimant could lift at least ten pounds. His reasoning: “The claimant alleges no pain or limitation in her upper extremities and none is shown in the medical evidence, therefor e the claimant can lift at least 10 pounds, which is the maximum lifting requirement for sedentary work.” Id. at 22-23. This conclusion is not supported by substantial record evidence; there is no evidence that claimant can lift 10 pounds. -7- The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and this case is REMANDED to the district court with direction to REMAND to the agency for further proceedings consistent with this disposition.

Entered for the Court

Wesley E. Brown Senior District Judge