* This order and judgment is not binding precedent, e xcept under the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

### APR 13 2000 

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

JOSE D. SANCHEZ,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 99-2236 (D.C. No. CIV-98-813-M/DJS)

(D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , 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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Jose D. Sanchez appeals the district court’s order affirming the Commissioner’s decision denying him social securitybenefits under Title II of the Social Security Act at step five of the sequential evaluation process. See 20 C.F.R. § 404.1520 (describing five-step evaluation process in detail); Williams
v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (same). We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 , and we reverse and remand for proceedings consistent with this order and judg ment. We review the Commissioner’s decision for substanti al evidence in the record and to ascertain whether the Commissioner ap plied the correct legal standards. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). “[W]e neither reweigh the evidence nor substitute our jud gment for that of the agency.” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). “Substantial evidence is ‘such relevant evi dence as a reasonable mind might accept as adequate to support a conclusion.’” Soliz v. Chater , 82 F.3d 373, 375 (10th Cir. 1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971) (further quotation omitted)). Plaintiff was born in 1944, and, on the day of the administrative law judge’s (ALJ) decision, was fifty-two years old. P laintiff, formerly a miner/laborer, injured his back while lifting heavycrib blocks (timbers) in March 1995. In October 1992, he applied for social secur ity benefits under Title II of-3-

the Social Security Act based on chronic lower backpain. He subsequently added depression to his application. The Commissioner denied plaintiff’s application at the administrative level and again on reconsideration. After a de novo hear ing, the ALJ issued a decision finding that plaintiff had a severe impairment asso ciated with chronic myofascial pain and degenerative disc disease and, while plaintiff could no longer perform his past relevant work as a miner/laborer, he retai ned the residual functional capacity (RFC) to perform the full range of light w ork. As to his depression, the ALJ found that there was “not sufficient evidence t o find that [plaintiff] has a medically determinable psychological impairment w hich meets the durational requirement.” Appellant’s App., Vol. II at 14. Ba sed primarily on the medical evidence, the ALJ did not credit plaintiff’s testim ony of disabling pain and applied the Medical Vocation Guidelines which compe lled a nondisability finding. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, § 20 2.11. The Appeals Council affirmed the ALJ’s decision and it became the Commissioner’s final decision. Thereafter, plaintiff filed a complaint in district court. The district court, adopting in whole the magistrate judge’s “An alysis and Recommended Disposition,” affirmed and this appeal followed. On appeal, plaintiff challenges the ALJ’s finding that plaintiff does not suffer a severe mental impairment, the ALJ’s findin g that plaintiff is capable of-4-

performing the full range of light work, and the AL J’s credibility determination. In addition, plaintiff contends that the ALJ failed to accord due weight to a Workers’ Compensation Administration determination finding plaintiff disabled, and asserts that the ALJ failed to adequately devel op the record.
Mental Impairment Plaintiff argues that the ALJ should have ordered aconsultative examination, see 20 C.F.R. § 404.1519a(b), and should have filled o ut a psychiatric review technique form (PRT), see 20 C.F.R § 404.1520a. Plaintiff did not raise depression initially when applying fo r social security benefits. However, in the “Reconsidered Disability Report,” h e described himself as depressed and often in a bad mood. See Appellant’s App., Vol. II at 79. In denying benefits on reconsideration, the Commission er stated that although plaintiff feels depressed, he is “able to handle th ose tasks which do not irritate [his] back.” Id. at 30. The Commissioner did not prepare a PRT on his reconsidered determination. See 20 C.F.R, § 404.1520a (outlining procedure to be followed when evaluating mental impairment at in itial, reconsidered, and ALJ hearing). In his request for a hearing before an A LJ, plaintiff described his psychological state as having “deteriorated signifi cantly.” Appellant’s App., Vol. II at 33. The issue of whether plaintiff suffered fr om a severe mental impairment was certified for hearing. See id. at 36, 37.1 Dr. Gonzales’s letter, dated September 19, 1996, st ates in pertinent part as

follows: Mr. Sanchez is a patient of the Raton Mental Health Center. He has been treated by me for Major Depression, which seem s to have developed after his back injury. He has also been diagnosed with alcohol abuse. Frequently, major depression is a c onsequence of chronic pain. I believe that Mr. Sanchez’s depression can improve with psychiatric treatment. I also feel that his alcohol abuse will decrease. It seems, at this point, that his disability is related to hi s back injury and not to a mental illness. Appellant’s App., Vol. II at 138. -5- In assessing plaintiff’s claimed depression, the AL J considered a letter prepared by plaintiff’s treating psychiatrist, Dr. Jafet Gonzalez, of Taos/Colfax Community Services (Raton Mental Health Center), 1 and stated as follows: Apparently, during this time he was also treated fo r major depression by Jafe[t] Gonzales, M.D. It was Mr. Gonzales’ opi nion that Mr. Sanchez’ depression was a result of his chronic pai n, and not related to a mental condition or alcohol use . . . . The c laimant did not seek, nor was he treated for depression, until he was see n for alcohol treatment. He has been treated with counseling andmedication. However, there is not sufficient evidence to find t hat he has a medically determinable psychological impairment whi ch meets the durational requirements. Id. at 14. Plaintiff saw Dr. Gonzales monthly for psy chiatric services and Dr. Gonzales prescribed medications to help him sle ep and to treat his depression. The only evidence in the record from Dr. Gonzales i s the terse letter relied upon by the ALJ. See id. at 138.-6-

The remaining evidence on plaintiff’s depression is limited. Plaintiff submitted documentation dated July 3, 1996 from Ter esa Smith, a therapist whom he was seeing twice a month at the Taos/Colfax Comm unity Services, and a letter, dated November 25, 1996, from Diane Santistevan, a counselor at the Taos/Colfax Community Services. Ms. Smith described plaintiff as suffering from “[m]ajor depression, recurrent, severe, without psychotic fe atures due to injury and chronic pain.” Id. at 135. Ms. Santistevan’s letter stated that, alt hough plaintiff had drastically reduced his consumption of alcohol, he had not experienced corresponding improvement in social interaction, da ily living activities, and emotional stability. See id. at 96. Ms. Santistevan further noted that plainti ff continued to be treated by Dr. Gonzales for “acute depression.” Id. While not “acceptable sources” under 20 C.F.R. § 404.1513(a), “[i]nformation from other sources may also help [the Commissioner] to underst and how [plaintiff’s] impairment affects [his] ability to work.” 20 C.F. R. § 404.1513(e). Plaintiff testified that he was not depressed before his injury, see Appellant’s App., Vol. II at 152, and stated that h is depression was getting a little better, see id. at 154. In addition, he testified that he cut bac k on his drinking because of his depression medication. See id. He also described that he has had suicidal thoughts in the past, has feelings of guilt and worthlessness, has trouble concentrating and is forgetful, and, since the accident, has been mad at and2 20 C.F.R. § 404.1519a(b) provides, in relevant part , as follows:

Situations requiring a consultative examination. A consultative examination may be purchased when the evidence as awhole, both medical and nonmedical, is not sufficient to support a decision on your claim. -7- verbally abusive to his wife. See id. at 166-68. Plaintiff’s wife testified that he has been “bad” since the accident, gets mad and yel ls at her for no reason, and often sends her away. Id. at 170. It is the plaintiff’s burden to prove he is disabled. See Hill v. Sullivan , 924 F.2d 972, 974 (10th Cir. 1991). Despite this b urden, the ALJ shoulders responsibility in the nonadversarial social security setting “to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.” Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360-61 (10th Cir. 1993). This responsibility to develop the record may require the ALJ to order a consultative examination. See Hawkins , 113 F.3d at 1166. Dr. Gonzales’s diagnosis of major depress ion triggered the ALJ’s duty to further develop the record concerning that impairment. See Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996). Therefore, we agree with plaintiff’s contentions; based on our review of the record, we find the ALJ should have further developed the record on plaintiff’s mental impairment by ordering a consultative examination. See 20 C.F.R. § 404.1519a(b); 2 Hawkins , 113 F.3d-8-

at 1166 (acknowledging Commissioner’s “broad latitu de in ordering consultative examinations” and stating “where additional tests are required to explain a diagnosis already contained in the record, resortto a consultative examination may be necessary” (footnote omitted)). Specificall y, Dr. Gonzales’s letter and other evidence in the record “suggest[ ] the exist ence of a condition which could have a material impact on the disability decision r equiring further investigation.” Hawkins , 113 F.3d at 1167. We note also that the ALJ’s duty to develop the record may have been heightened because there w as no PRT in the record. Cf. id. at 1165. We conclude that the ALJ’s determination that plaintiff’s mental impairment does not meet the durational requirementis not supported by substantial record evidence and that the ALJ failedto fulfill his duty to adequately develop the record on that issue. In ad dition to ordering a consultative examination, the ALJ should fill out a PRT on remand. See Hill , 924 F.2d at 975 (“Since the record contained evidence of a mental i mpairment that allegedly prevented [the plaintiff] from working, the [Commis sioner] was required to follow the procedure for evaluating the potential m ental impairment set forth in his regulations and to document the proceedings accordingly.”).
Credibility Determination-9-

We next consider an issue closely related to the AL J’s failure to order a consultative examination, specifically the ALJ’s pain credibility determination. Plaintiff claims the ALJ failed to consider that pl aintiff’s condition--myofascial pain disorder--is soft tissue disease that defies o bjective medical verification. In addition, plaintiff takes issue with the ALJ’s fail ure to consider his consistent use of pain medication, his back spasms, and his repeat ed efforts to relieve his pain through chiropractic care and epidural and facet bl ock injections. Instead, plaintiff contends the ALJ iterated his activities of daily living without noting how limited those activities are by plaintiff’s pai n and depression. Plaintiff also takes issue with the ALJ’s statement that he failedto follow his physician’s recommendation that he seek chronic pain management . He claims that following the recommended course would not have restored his ability to work. To qualify as disabling, pain must be severe enough --either by itself or in combination with other impairments--to preclude any substantially gainful employment. See Brown v. Bowen , 801 F.2d 361, 362-63 (10th Cir. 1986). This court has enumerated for consideration the followin g factors when analyzing a claimant’s pain evidence: (1) [W]hether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether ther e is a “loose nexus” between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether, consid ering all the evidence, both objective and subjective, Claimant’s pain is in fact disabling.-10-

Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992) (citing Luna v.
Bowen , 834 F.2d 161, 163-64 (10th Cir. 1987)). Objectiv e evidence includes physiological and psychological evidence that can b e verified by external testing.
See Thompson v. Sullivan , 987 F.2d 1482, 1488-89 (10th Cir. 1993). Subject ive evidence comprises statements from the claimant andother witnesses that are evaluated on their credibility. See id. at 1489. While plaintiff has shown objective medical evidenc e of a “pain producing impairment,” and a loose nexus between the impairme nt and his pain, the objective evidence does not establish disabling pain. Accordingly, the ALJ had to evaluate plaintiff’s subjective pain testimony a nd the other pertinent evidence before him. When we review an ALJ’s assessment of a claimant’ s disabling pain, we do so always with the caveat that “[c]redibilitydeterminations are peculiarly the province of the finder of fact, and we will notupset such determinations when supported by substantial evidence.” Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). At the hearing, plaintiff testified that the pain m oves from one side of his back to the other and moves down into both legs. See Appellant’s App., Vol. II at 158. He described the pain as so severe that he often doubles his pain medication dose and, even with sleeping pills, he c an sleep no more than three hours a night. See id. at 159-60. Plaintiff also testified that he appli es ice packs3 Plaintiff was treated for back pain by two physicians, Dr. John J. Smoker

and Dr. Anthony P. Reeve. Initially, plaintiff was seen by Dr. Smoker, his family physician. Thereafter, he was treated by Dr. Reeve , who released him to light duty. Although plaintiff went back to work for a s hort period (five days in July 1995) he was not able to continue working due to hi s pain. Dr. Reeve’s reports indicate that plaintiff’s MRI and CT scans, as well as his EMG/nerve conduction study and X-rays have all been normal. See Appellant’s App., Vol. II at 112, 113. Dr. Reeve’s reports also note that, on examination, plaintiff demonstrates spasm in the lumbosacral spine, has pain on rotation, andwalks with a stooped posture. See id. at 112. Due to the spasms and pain, plaintiff was accorded a five percent impairment for purposes of workers’ compensation. See id. Dr. Reeve further noted that plaintiff requires chronic pain manageme nt, and that while he had been under chiropractic care, it did not seem of any benefit. See id. at 113. -11- frequently. See id. at 160. At the time of the hearing, he weighed tw enty pounds less than his usual weight because of loss of appetite. See id. at 146-47. The ALJ found that plaintiff’s “testimony of subjec tive complaints and functional limitations was not entirely supported b y the evidence as a whole to the disabling degree he alleged.” See id. at 15. In reaching this conclusion, the ALJ considered plaintiff’s medical history, 3 activities, his failure to seek treatment (other than calling in prescriptions), the Function al Capacity Evaluation which demonstrated plaintiff was in the light duty catego ry, and the fact that medical evidence reflected his ability to return to light d uty status as early as August, 1995. The ALJ then found that plaintiff’s pain didnot cause him any additional limitations, noting that there was “no evidence that his pain adversely affected his abilities to maintain attention or concentration, o r to understand, remember, or carry out job instructions.” Id. at 15-16.4 In his “Daily Activities Questionnaire,” plaintiff reported that he was

taking hydrocodone as needed for pain and ambien, asleep medication, before going to bed. See Appellant’s App., Vol. II at 88 (dated March 15, 1 996). Subsequently, plaintiff started taking antidepressant medications. See id. at 94. He has also been prescribed various other medicatio ns during the course of his treatment. See, e.g. , id. at 69 (Physical Daily Activities Questionnaire lis ting seven medications). -12- Notably, the ALJ did not discuss plaintiff’s use of pain and sleep medications. 4 Instead, the ALJ emphasized claimant’s failure to pursue medical treatment for his back for almost a full year before the hearing. See id. at 15. Hence, the ALJ did not evaluate the significance of those medications in his overall credibility determination. Nor did he addr ess some of plaintiff’s other attempts to treat his pain, for example chiropracti c care and ice packs. He did note, however, that plaintiff had an epidural in Ju ne 1995 which significantly resolved his pain. See id. Nor did the ALJ discuss plaintiff’s alleged self-medicating behavior as it related to his pain other than to note that plaintiff had stopped drinking alcohol two months prior to the hearing. See id. at 14. In fact, plaintiff testified that he was drinking to relieve his pain. See id. at 154. While the ALJ recited plaintiff’s daily living acti vities, he did not discuss their limited nature: [Claimant] has a driver’s license, and drives mainl y around town. He does no yard work or shopping. He does not soci alize. He walks two blocks, and can stand for about 25 minutes. He is able to sit for the same length of time. He is able to lift five p ounds, and bend “a little.” He is unable to squat or climb stairs. He does not utilize-13-

assistive devices for walking. He is able to care for his personal needs. He does not like to be around people, and p refers to be alone. Id. at 15. On this record, we conclude that the ALJ failed to fulfill his duty to provide adequate findings to support his credibility determination. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). The ALJ conside red some of the factors that we have approved for purposes of evaluating pain testimony. See Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991) (setting outfactors considered in evaluating credibility of pain testimony). He did not, however, address some of the other pertinent evidence. See Clifton v. Chater , 79 F.3d 1007, 1010 (10th Cir. 1996) (“[I]n addition to discussing the evidence supporting his decision, the ALJ must discuss the uncontroverted evidence he chooses not to rely upon as well as significantly probative evidence he rejects.”). No r did the ALJ address any impact that plaintiff’s depression may have on his back pain. See Luna , 834 F.2d at 166 (acknowledging the “possibility that psychol ogical disorders combine with physical problems”). Accordingly, we remand “for the ALJ to set out his specific findings and his reasons for accepting or rejecting evidence.” Clifton , 79 F.3d at 1010. We express no view on the outcome on remand; “[o]u r remand ‘simply assures that the correct legal standards are invoke d in reaching a decision based on the facts of the case.’” Kepler , 68 F.3d at 392 (quoting Huston v. Bowen , 838 F.2d 1125, 1132 (10th Cir. 1988)).-14-

RFC Plaintiff challenges the ALJ’s finding at step five that he could perform the full range of light work, thereby disqualifying himfrom benefits pursuant to the Medical Vocational Guidelines. Because we remand f or more complete findings on plaintiff’s allegations of pain and for a consul tative examination on plaintiff’s mental impairment, we also remand for a correspondi ng reevaluation of the RFC.
See Hargis , 945 F.2d at 1491 (“A claimant’s [nonexertional] i mpairment must also be evaluated in combination with the effects o f other impairments.” (footnote omitted)).
Workers’ Compensation Plaintiff contends that the ALJ failed to consider his workers’ compensation benefits as required under Baca v. Department of Health & Human Services , 5 F.3d 476 (10th Cir. 1993). In Baca , we stated that, although disability findings by other agencies are not binding on the C ommissioner, the ALJ should nevertheless consider such agency determinations. See id. at 480. Plaintiff has been rated as five percent impaired. See Appellant’s App., Vol. II at 37. During the hearing, the ALJ briefly questioned plaintiff c oncerning the receipt of these benefits but only apropos to plaintiff’s financial situation. See id. at 146. Based on our disposition, we need not determine whether the ALJ committed reversible-15-

error in not explicitly addressing the workers’ compensation determination in his decision. Rather, on remand, the ALJ should addres s that determination as appropriate. In addition, on remand, the ALJ should make reasonable efforts to obtain Dr. Gonzales’s treating notes as well as the record s of plaintiff’s two treating chiropractors, Dr. Washburn and Dr. Berg. See Hill , 924 F.2d at 975. The REVERSE the district court’s judgment and REMAN D the case to that court with instructions to remand the case to the C ommissioner for further proceedings consistent with this order and judgment

.

Entered for the Court

Michael R. Murphy Circuit Judge