FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

June 14, 2005 

PATRICK FISHER 

Clerk 

JACQUELINE ROMERO, 

Plaintiff-Appellant, 

V. 

JO ANNE B. BARNHART, 

Commissioner of Social Security, 

Defendant-Appellee. 

No. 04-2275 

(D.C. No. CIV-03-965 LAM) 

(D. N.M.) 

ORDER AND JUDGMENT* 

Before BRISCOE, ANDERSON, and BRORBY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties' request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); I 0th Cir. R. 34.1 (G). The case is therefore 

ordered submitted without oral argument. 

Plaintiff-appellant Jacqueline Romero is appealing from the order of the 

district court that affirmed the Social Security Commissioner's decision denying 

• This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. The court 

generally disfavors the citation of orders and judgments; nevertheless, an order 

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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her application for disability insurance benefits under Title II of the Social 

Security Act. Plaintiff is also appealing the portion of the Commissioner's 

decision that awarded her supplemental security income (SSI) benefits under Title 

XVI of the Social Security Act. We exercise jurisdiction under 42 U.S.C. 

§ 405(g) and 28 U.S.C. § 1291. We affirm, but remand this matter for payment of 

one month of additional SSI benefits. 

I. 

Plaintiff suffers from anterior rib/chest pain, and the Administrative Law 

Judge (ALJ) found at step two of the five-step sequential evaluation process for 

determining disability that plaintiff "has had 'severe' impairments consisting of 

chest wall pain with pain between her ribs, chronic back pain, [ and] a chronic 

pain disorder." 1 Aplt. App., Vol. II at 26. Although the precise etiology of these 

conditions has apparently not been determined by plaintiffs doctors, plaintiff has 

been diagnosed as suffering from "[t]horacic/abdominal wall neuropathic 

(intercostal) pain syndrome" and from "[m]yofacial pain syndrome." Id. at 214; 

see also id. at 182 (setting forth diagnosis of "intercostal neuritis'"), 335 (setting 

forth diagnosis of "neuropathic chest wall pain'"). 

The ALJ also found that plaintiff has severe impairments consisting of 

thyroiditis and an anxiety disorder, but plaintiff has not raised any issues 

regarding those impairments in this appeal. 

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In his decision, the ALJ found that plaintiff was not entitled to disability 

insurance benefits, however, because: (1) it is undisputed that plaintiffs insured 

status for purposes of disability benefits expired on June 30, 2000; and (2) the 

ALJ found that plaintiffs condition was not disabling until March 13, 2001, the 

day she had surgery to have a thoracic spinal cord stimulator implanted in her 

back for pain relief. Id. at 26. Thus, while the ALJ determined that plaintiff was 

entitled to SSI benefits as of March 13, 2001, id. at 28, he denied her claim for 

disability benefits, concluding that plaintiff "was not disabled prior to or on June 

30, 2000, the date she last met the insured status requirements of Title II." Id. 

More specifically, the ALJ found that: (1) plaintiff "retained a residual functional 

capacity to perform a full range of sedentary work from March 15, 1999, her 

alleged onset date, to March 13, 2001," id.; and (2) "[i]n view of [plaintiffs] 

vocational profile ... coupled with her residual functional capacity for sedentary 

work ... , a finding of 'not disabled' [was] directed by medical-vocational rules 

201.25 and 201.26," id. 

In August 2003, the Appeals Council denied plaintiffs request for review 

of the ALJ' s decision. Plaintiff then filed a complaint in the district court. In 

September 2004, the magistrate judge, sitting for the district court by consent of 

the parties pursuant to 28 U.S.C. § 636(c)(l), entered an order affirming the 

ALJ' s decision. This appeal followed. 

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Because the Appeals Council denied review, the ALJ' s decision is the 

Commissioner's final decision for purposes of this appeal. See Doyal v. 

Barnhart, 331 F.3d 758,759 (10th Cir. 2003). In reviewing the ALJ's decision, 

we "neither reweigh the evidence nor substitute our judgment for that of the 

agency." Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 

199 I). Instead, we review the ALJ' s decision only to determine whether the 

correct legal standards were applied and whether the ALJ's factual findings are 

supported by substantial evidence in the record. See Doyal, 331 F .3d at 760. 

II. 

In this appeal, plaintiff has asserted two claims. First, plaintiff claims the 

ALJ's finding that she was not disabled until March 13, 2001 is not supported by 

substantial evidence in the record. Second, plaintiff claims the ALJ erred by 

relying on the Medical-Vocational Guidelines (the grids), 20 C.F.R. Pt. 404, 

Subpt. P, App. 2, at step five of the evaluation process because he failed to 

properly evaluate her nonexertional pain impairment. 

A. Onset Date 

With respect to the onset date issue, plaintiffs medical records indicate 

that she received a significant amount of treatment for pain relief between July 

2000 and March 2001. Specifically, plaintiff received a number of intercostal 

nerve block injections, and she was also prescribed neurontin, a strong pain relief 

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medication. See Aplt. App., Vol. II at 175-80, 189, 214-15, 216, 220, 229-32, 

335-36. It also appears that plaintiff was using a TENS unit for pain relief during 

this time period, and that she had at least one thoracic epidural. Id. at 189, 216, 

232. In addition, in a medical record dated August 14, 2000, one of plaintiffs 

doctors reported the following: 

[Plaintiff] is a 39-year-old who has a main complaint of chest and 

abdominal wall pain from the inferior thoracic vertebra to right upper 

quadrant abdomen. She has been managed by Presbyterian Pain 

Wellness Center .... Apparently, over there she was responding 

pretty well to intercostal nerve blocks. Over time, the pain has been 

progressive and persistent, sharp and not responding very well to 

opiate medication. The pain has always been right-sided and 

currently it is impairing her sleep pattern, as well as regular 

activities. 

Id. at 214; see also id. at 335 (medical record dated August 14, 2000 reporting 

neuropathic chest wall pain "graded as 10/10 presently" and as 6/ 10 following 

several intercostal nerve block injections). Further, plaintiff's medical records 

indicate that her pain continued to get worse during the remainder of 2000 and 

into 200 I. Id. at 229-31. By mid-January 2001, plaintiff's doctors considered her 

to be a candidate for the spinal cord stimulator surgery. Id. at 229. 

In his decision, the ALJ did not specifically analyze the medical records 

from the July 2000 to March 2001 time period. Instead, the ALJ relied on the 

following analysis: 

As stated above, the claimant alleges disability since March 15, 

1999. However, there are few medical records for calendar years 

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1999 and 2000. Moreover, my review of those medical records does 

not show that she had any chronic, disabling medical conditions. 

Specifically, the claimant did have some tenderness over her ribs; 

but, she had no spinal tenderness. In fact, as late as [January] 2001, 

x-rays were taken of the claimant's lumbar and thoracic spine [and] 

were interpreted as normal with no evidence of significant trauma 

and only 'mild' degenerative changes. (Exhibit l0F, p. 8). 

Based on these medical records, I do not find that the claimant's rib 

pain or infrequent chest wall pain rendered her disabled. However, 

as of March 13, 2001, [ the date of the spinal cord stimulator 

surgery], I do find sufficient medical documentation in the record 

evidence establishing that she was, in fact, under a disability. 

Id. at 26. 

The ALJ' s analysis is not entirely consistent with the record. First, the 

medical records from July 2000 forward do show that plaintiff suffered from a 

chronic pain condition, and, while plaintiff received periodic relief from the 

condition, it persisted and got progressively worse. Second, the ALJ's reliance on 

the negative x-rays from January 2001 is misplaced. Most importantly, the 

negative x-rays apparently had no impact on how plaintiffs treating physicians 

perceived her condition or treated it. To the contrary, plaintiffs doctors 

proceeded with the spinal cord stimulator surgery despite the negative x-rays. 

Finally, the fact that plaintiff did not have "spinal tenderness" seems to be beside 

the point, as the reference would appear to be referring to some sort of posterior 

tenderness, while plaintiffs pain complaints are related to her anterior ribs and 

chest wall. 

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On the other hand, while plaintiff was treated in June 1999 for "recurrent 

right intercostal neuritis," which treatment included injections of pain relief 

medication, a referral for a nerve block injection, and a prescription of Demerol 

"to take as needed for continued pain," id. at 182, there is a gap in plaintiff's 

medical records between June 1999 and June 2000, and it appears that plaintiff 

received no medical treatment for her pain condition during that time period. It is 

also unclear whether plaintiff was taking any pain medication during that time 

period. 

Both in the proceedings below and in this appeal, plaintiff has not made 

any attempt to show that she received medical treatment for her pain condition 

between June 1999 and June 2000. As a result, while we do not discount the 

relevance of the post-June 2000 medical evidence to the onset date issue, see 

Baca v. Dep't of Health & Human Servs., 5 F.3d 476,479 (10th Cir. 1993), we 

nonetheless conclude that the ALJ's finding that plaintiff was not disabled as of 

June 30, 2000 is supported by substantial evidence in the record. We therefore 

affirm the ALJ' s denial of plaintiff's claim for disability benefits. See Reid v. 

Chater, 71 F.3d 372,374 (10th Cir. 1995) (affirming ALJ's finding that 

claimant's disability onset date was after expiration of claimant's insured status 

where finding was supported by substantial evidence). 

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The question of whether the ALJ properly analyzed the onset date issue for 

purposes of plaintiff's claim for SSI benefits raises different issues, however. To 

begin with, the claim for SSI benefits does not require a June 30, 2000 onset date. 

Instead, to be entitled to SSI benefits, plaintiff must show that she was disabled 

between February 20, 2001, the date she filed her application for SSI benefits,2 

and December 4, 2002, the date of the ALJ's decision. See 20 C.F.R. §§ 416.330, 

416.335, and 416.1476(b)(l). 3 

In her opening brief, plaintiff asserts that "[t]he onset date is ... critical 

because she would have received additional months of SSI benefits if the ALJ had 

found her to have been disabled on [a date earlier than March 13, 2001]." Aplt. 

Opening Br. at 16-17. Plaintiff is only partially correct. First, under the 

controlling regulations, SSI benefits cannot be awarded retroactively. See 20 

C.F.R. § 416.335; SSR 83-20, 1983 WL 31249, at *I (1983); Kepler v. Chater, 68 

F.3d 387, 389 (10th Cir. 1995). Consequently, February 20, 2001 was the earliest 

date that plaintiff could have been eligible for SSI benefits. Second, even if 

plaintiff was disabled as of February 20, 2001, March 2001 was the earliest month 

2 Although plaintiff's application for SSI benefits was not available for 

inclusion in the administrative record, see Aplt. App., Vol. II at 4, the ALJ stated 

in his decision that plaintiff filed her application on February 20, 2001, id. at 25, 

and neither party has challenged the ALJ' s statement. 

3 All citations herein to the Code of Federal Regulations are to the 

regulations that were in effect at the time of the ALJ' s decision in December 

2002. 

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for which she could have been paid SSI benefits. See 20 C.F.R. § 416.335. As 

things presently stand, the ALJ found that plaintiff became disabled on March 13, 

2001, and this meant that she should have received her first payment of SSI 

benefits sometime in April 2001. Id. at § 4 l 6.330(a). As a result, if it is now 

determined that plaintiff was disabled as of February 20, 2001, this would entitle 

her to only one month of additional SSI benefits. 

Because the ALJ found that plaintiff did not become disabled until March 

13, 2001, he implicitly found that plaintiff was not disabled as of February 20, 

2001. For purposes of the onset date issue and plaintiffs claim for SSI benefits, 

the controlling issue is therefore whether there is substantial evidence in the 

record to support the ALJ's implicit finding that plaintiff was not disabled as of 

February 20, 2001, and we conclude the answer is no. 

As noted above, by mid-January 2001, plaintiffs condition had deteriorated 

to the point where her doctors considered her to be a candidate for the spinal cord 

stimulator surgery. See Aplt. App., Vol. II at 229. There is also no indication in 

plaintiffs medical records that her condition subsequently worsened in any 

significant way between February 20, 2001 and March 13, 2001, the day of the 

surgery to implant the spinal cord stimulator. Moreover, the ALJ did not find that 

plaintiffs disabled status as of March 13, 2001 was the result of the surgery 

itself. Rather, the ALJ found only that the surgery "substantiate[ d] the 

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seriousness of [plaintiff's] right-sided pain." Id. at 28. Consequently, we 

conclude that the ALJ's implied finding that plaintiff was not disabled on 

February 20, 2001 is not supported by substantial evidence in the record. 

A full remand of the SSI claim to the Commissioner so that the ALJ can 

make a factual finding as to whether plaintiff was disabled as of February 20, 

2001 is not necessary, however. Most importantly, there is no evidence in the 

record, medical or otherwise, to support the ALJ's finding that plaintiff was 

disabled on March 13, 2001, but not on February 20, 2001, only twenty-one days 

earlier. Accordingly, in the interest of judicial economy, we affirm the award of 

SSI benefits, but remand this matter to the Commissioner with directions to pay 

plaintiff one month of additional SSI benefits. 

B. Use of the Grids 

The ALJ found that plaintiff "retained a residual functional capacity to 

perform a full range of sedentary work from March 15, 1999, her alleged onset 

date, to March 13, 2001." Aplt. App., Vol. II at 28. Because the ALJ also found 

that plaintiff could not perform her past relevant work, id., he then applied the 

grids to determine if there were other jobs that plaintiff could have performed, 

and he concluded that "a finding of 'not disabled' is directed by medicalvocational rules 201.25 and 201.26," id. This was the extent of the ALJ's step 

five analysis, and the ALJ did not make any specific findings as to whether 

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plaintiff's pain condition had resulted in any significant nonexertional limitations, 

as he is required to do before using the grids. 

It is well established in this circuit that "resort to the grids is particularly 

inappropriate when evaluating nonexertional limitations such as pain." Thompson 

v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993). This court has also 

recognized, however, that "[t]he mere presence of a nonexertional [pain] 

impairment does not preclude reliance on the grids." Id. Instead, "[t]he pain 

must interfere with the ability to work." Id. Thus, "an ALJ may not rely 

conclusively on the grids unless he finds ... that the claimant has no significant 

nonexertional impairment," and the finding must be supported by substantial 

evidence. Id. 

In his decision, the ALJ did not make an express finding that plaintiffs 

pain was insignificant in terms of her ability to perform sedentary work. In 

addition, the ALJ failed to recognize that plaintiffs disability claim and her SSI 

claim must be analyzed separately to resolve this issue since they involve 

di ffcrcnt time periods. Nonetheless, we see no reversible error here. 

First, with regard to the claim for disability benefits, as noted above, there 

is a gap in plaintiffs medical records between June 1999 and June 2000, and it 

appears that plaintiff received no medical treatment for her pain condition during 

that time period. As a result, we conclude that there is insufficient evidence in 

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the record to support a finding by the ALJ that plaintiff suffered from a 

significant pain impairment as of June 30, 2000. The ALJ's use of the grids was 

therefore appropriate for purposes of plaintiffs claim for disability benefits. 

Second, with regard to the claim for SSI benefits, the ALJ found that "from 

March 13, 2001. forward, ... the claimant lacked a residual functional capacity to 

perform even sedentary work on a sustained basis.'' Aplt. App., Vol. II at 28. 

Based on this finding, the ALJ further found that: ( 1) plaintiff "has been 

'disabled' from March 13, 2001, forward:" and (2) plaintiff "was and is eligible 

for SSI benefits as of March 13, 200 l ." Id. As set forth above, we have 

determined that the ALJ erred by failing to make identical findings as of February 

20, 2001, the earliest possible available date for SSI benefits. The grids issue is 

thus moot for purposes of those benefits. 

We AFFIRM the denial of plaintiff's claim for disability benefits. We also 

AFFIRM the award of SSI benefits, but we REMAND this matter to the district 

court with instructions to REMAND the case to the Commissioner for payment of 

one month of additional of SSI benefits. 

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Entered for the Court 

Stephen H. Anderson 

Circuit Judge 

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