UNITED STATES COURT OF APPEALS
Filed 11/14/95
TENTH CIRCUIT
CAROL GRAHAM, surviving spouse of )
Larry R. Graham, deceased, )
)
Plaintiff-Appellant, )
) No. 95-5104
v. ) (D.C. No. 92-C-702-E)
) (N.D. Okla.)
SHIRLEY S. CHATER, Commissioner, )
Social Security Administration, )
)
Defendant-Appellee. )
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.
Carol Graham appeals the district court’s decision affirming
the final decision of the Secretary of Health and Human Services
denying her deceased husband’s application for disability
benefits.1 Mr. Graham claimed that he became disabled on January
7, 1990, following a heart attack. After a hearing, an
Administrative Law Judge (ALJ) issued a decision denying benefits
on August 26, 1991. After the Appeals Counsel denied Mr.
*
This order and judgment is not binding precedent, except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 the court’s General
Order filed November 29, 1993. 151 F.R.D. 470.
1
Mr. Graham died on January 26, 1994, and his wife was
substituted as the plaintiff in the district court action.
Graham’s initial request for review, he submitted additional
evidence consisting of hospital reports resulting from his
treatment in January and February 1992 for coronary heart
disease. The Council decided these records provided no basis for
vacating its previous decision, holding they did not relate to
whether claimant’s condition was disabling prior to August 1991.
App. at 21. The district court affirmed. We reverse.2
Mrs. Graham contends that the medical records at issue do
relate to Mr. Graham’s condition during the relevant time. She
also argues that his condition met or equaled a listed
impairment, and that the ALJ erred in evaluating his allegations
of disabling pain.
The court may order the Secretary to take additional
evidence if it is material and there is good cause for the
failure to incorporate the evidence into the record earlier. See
42 U.S.C. § 405(g). In this circuit, evidence is material if
“‘the Secretary’s decision might reasonably have been different
had the [new] evidence been before him when his decision was
rendered.’” Cagle v. Califano, 638 F.2d 219, 221 (10th Cir.
1981) (quoting King v. Califano, 599 F.2d 597, 599 (4th Cir.
1979)); see also Sullivan v. Finkelstein, 496 U.S. 617, 626 & n.6
2
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R.
App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore
ordered submitted without oral argument.
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(1990). The medical records at issue were generated
approximately five months after the ALJ decision. They contain
Mr. Graham’s continuing allegations of pain, including his belief
that his pain had become worse in the last six to eight months,
that is, before the August decision. The records recite his
relevant medical history and reveal that he had ongoing angina
due to severe multi-vessel coronary artery disease. See App. at
64-65. “Overall his coronaries were very diseased and . . . his
long term prognosis is probably not very good due to the severity
of his coronary disease.” Id. at 65. The severity of Mr.
Graham’s condition is evidence that the condition did not become
disabling only since the ALJ’s decision. Accordingly, we hold
that the records are material to Mr. Graham’s condition prior to
that time and are particularly relevant to his claim that he was
disabled by shortness of breath and pain.3
Mrs. Graham also argues that the ALJ erred in evaluating Mr.
Graham’s pain allegations. We recently considered this argument
under very similar circumstances. See Kepler v. Chater, No. 95-
5040, 1995 WL 607022 (10th Cir. Oct. 17, 1995). There, as here,
the ALJ addressed the claimant’s allegations of disabling pain in
3
We reach a different conclusion with respect to the
evidence generated about one year after the decision regarding
Mr. Graham’s herniated disc. The record contains no evidence
that the herniation itself was present before August 1991. We
therefore affirm the district court’s decision not to order a
remand for consideration of this evidence.
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a conclusory fashion after setting out the general regulations
and law governing pain assessments. See id. at *4. In fact, the
portion of the ALJ’s opinion quoted in Kepler is identical to the
portion of the opinion at issue here. See id. As we stated in
Kepler, the ALJ must consider the factors relevant to pain
assessment set out in Luna v. Bowen, 834 F.2d 161 (10th Cir.
1987), and “explain why the specific evidence relevant to each
factor led him to conclude claimant’s subjective complaints were
not credible.”4 Kegler, 1995 WL 607022, at *4.
Moreover here, as in Kegler, the ALJ “found the claimant’s
testimony to be frank and sincere but credible only to the extent
that it is reconciled with claimant’s abilities to perform light
4
The ALJ here also found the claimant had not seen his
treating cardiologist for over eight months and the consulting
physician had noted that the claimant was not suffering any chest
pain on the day of the examination. These observations are
insufficient to distinguish this case from Kegler. It is
undisputed that the claimant was not insured and that his medical
bills had left him in dire financial straits. It is also
undisputed that he lived a considerable distance from his
treating physician and that he could only drive for short periods
of time. Under these circumstances, his failure to visit his
cardiologist for eight months is not particularly significant.
We likewise attach little weight to the consulting physician’s
notation that Mr. Graham had no chest pain the day of his
examination. It is undisputed that Mr. Graham had severe
coronary disease which can produce disabling pain, and the record
substantiates his continuing complaints of pain. Moreover, his
testimony and the medical records establish that this pain was
episodic. Accordingly, the ALJ’s reliance on these factors does
not support his conclusion.
-4-
work activities.”5 App. at 85. The ALJ’s failure in Kegler to
provide the link between the evidence and his credibility
determination required a remand. We must likewise remand to
allow the Commissioner “to make express findings in accordance
with Luna, with reference to relevant evidence as appropriate,
concerning claimant’s claim of disabling pain.” Kegler, 1995 WL
607022, at *5.
Accordingly, we remand to the district court with directions
to remand to the Commissioner for express findings on Mr.
Graham’s allegations of disabling pain. The Commissioner should
also assess, if necessary, the degree to which Mr. Graham’s
allegations of pain and shortness of breath, if not disabling in
themselves, would have limited his ability to perform the full
5
The ALJ apparently based his credibility assessment largely
upon Mr. Graham’s assertion that he could lift only a bag of
potatoes. See App. at 86. Mr. Graham testified that he would
not always be able to carry a sack of groceries which had a bag
of potatoes in it without exertion. Id. at 113. The ALJ found
this testimony inconsistent with medical evidence that Mr. Graham
had full grip strength. However, Mr. Graham did not testify that
he could not grip the sack, he testified that carrying the sack
would cause exertion, i.e., chest-tightening, shortness of breath
and pain. We see no inconsistency between this testimony and Mr.
Graham’s medical records. See Thompson v. Sullivan, 987 F.2d
1482, 1490 (10th Cir. 1993)(deference to ALJ’s credibility
findings not absolute rule). Indeed, the ALJ’s reliance upon a
mischaracterization of this evidence, coupled with the use of
boilerplate language identical to that in Kegler to dispose of
critical issues, leads us to question whether Mr. Graham’s claim
received the careful individualized consideration to which it was
entitled.
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range of jobs in the relevant work categories. In so doing, the
Commission should consider the medical evidence generated by Mr.
Graham’s hospitalizations in January and February 1992. The
Commissioner may also reconsider whether Mr. Graham met or
equaled a listed impairment in light of this evidence.
REVERSED and REMANDED for further proceedings. The mandate
shall issue forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour
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