Madron v. Astrue

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS February 11, 2009

TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

SUZAN L. MADRON,

Plaintiff-Appellant,

v. No. 06-1200
(D.C. No. 05-cv-869-WDM)
MICHAEL J. ASTRUE, Commissioner of (D. Colo)
Social Security,*

Defendant-Appellee.

ORDER AND JUDGMENT**

Before KELLY, HOLLOWAY, and HOLMES, Circuit Judges.

Claimant Suzan L. Madron appeals the district court’s decision affirming the

Commissioner’s denial of her applications for supplemental security income and

disability insurance benefits. Ms. Madron asserts that she is disabled by back pain, ankle

pain, and asthma. But the Commissioner determined that she had sufficient capacity to

either return to her previous work or take other jobs that were available in the national

economy. We conclude, however, that the Commissioner’s determinations regarding the

*
Pursuant to Fed. R. App. P. 43(c)(2), Michael J. Astrue is substituted
for Jo Anne B. Barnhart as defendant in this appeal.
**
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
severity of Ms. Madron’s pain are not supported by substantial evidence. Exercising our

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we REVERSE and

REMAND with instructions to the Commissioner to award benefits.

I. BACKGROUND

Ms. Madron filed a Title XVI application for supplemental security income and a

Title II application for disability insurance benefits. She claims that she has been unable

to work since December 15, 2002, because back pain and respiratory problems make it

“very hard to walk or bend or br[e]ath[e].” Admin. R. at 61, 84. Both applications were

denied. Ms. Madron requested, and was granted, a hearing before an administrative law

judge (“ALJ”). Three months before the hearing, she fell and broke her ankle. Ms.

Madron asserted that her ankle has not healed properly and that pain in it has contributed

to her disability. The ALJ denied the applications, concluding that although Ms. Madron

had severe impairments, she could return to her previous work as a cashier. The ALJ

further determined that, even if she was no longer capable of performing her previous job

as it would actually or customarily be performed, Ms. Madron was capable of performing

other jobs that existed in significant numbers in the national economy. Ms. Madron

requested review of the ALJ’s decision. The Appeals Council denied her request,

rendering the ALJ’s decision the final decision of the Commissioner. Bowman v. Astrue,

511 F.3d 1270, 1272 (10th Cir. 2008). Ms. Madron then filed this action, and the district

court affirmed the Commissioner’s decision.

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 Ms. Madron’s Personal and Medical History

Ms. Madron was born in 1955. Although she completed the eighth grade, she has

great difficulty reading. Most of her previous jobs have required only unskilled labor. In

1996, she worked at an airport, loading and unloading containers of food onto airplanes.

While on that job in 1996, she injured her back and hips and, as a result, was out of work

until 1998. After her recovery, she was employed at a number of different convenience

stores, working as a cashier and stocker. Her last job was as a seasonal employee at

Walmart, where she worked as a cashier from September to December 2002. She has not

worked since that time.

In 2002 and 2003, Ms. Madron was seen by Dr. Lawrence A. Lesnak, who initially

diagnosed her with a number of pain-causing conditions: chronic right-sided sacroiliitis,1

chronic lumbosacral myofascial pain,2 and L5 and S1 radiculopathies.3 In February

1
“Sacroiliitis” is an “[i]nflammation of the sacroiliac joint.”
Stedman’s Medical Dictionary 1587 (27th ed. 2000). The sacroiliac joint refers to
the area between the hip bone and pelvis. See id. at 875, 937, 1588.
2
Chronic lumbosacral myofascial pain is a chronic muscle pain
concentrated near the pelvis. See Stedman’s Medical Dictionary 1034 (defining
“lumbosacral” as “[r]elating to the lumbar vertebrae and the sacrum”); id. at 1173
(defining “myofascial” as “[o]f or relating to the fascia surrounding and
separating muscle tissue”); id. at 1588 (defining “sacrum” as “[t]he segment of
the vertebral column forming part of the pelvis”).
3
“Radiculopathy” is a “[d]isorder of the spinal nerve roots.”
Stedman’s Medical Dictionary 1503; see also The Merck Manual § 14 at 1488
(17th ed. 1999) (“Nerve root dysfunction, which is usually secondary to chronic
pressure or invasion of the root, causes a characteristic radicular syndrome of
pain and segmental neurologic deficit.”).

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2003, Dr. Lesnak reported Ms. Madron’s subjective complaints of worsening pain and

noted the possibility that her radiculopathy was worsening. In August 2003, he

performed a number of tests, which confirmed that Ms. Madron had moderately severe

radiculopathy. As a result of these tests, Dr. Lesnak gave Ms. Madron a prescription for

medication to help control her symptoms. Dr. Lesnak repeatedly encouraged Ms. Madron

to have a magnetic resonance imaging (“MRI”) performed to aid with further diagnosis

and treatment. Although the procedure was scheduled at one point, the MRI was never

performed because Ms. Madron could not afford it. Eventually, Ms. Madron stopped

seeing Dr. Lesnak altogether, because she lacked insurance. Instead, she went to Clinica

Campesina where she continued to be treated for lower back pain, radiculopathy, and

decreased strength.

In March 2004, Ms. Madron fell and fractured her ankle. She was referred to an

orthopedic specialist, Dr. Michael Wertz, who recommended surgery. She did not have

the operation; she would have had to pay half of the costs prior to the surgery, which she

could not afford. As of June 2004, she was awaiting an opening for low-cost surgery at

the University Hospital. At the hearing before the ALJ, she was wearing a half-cast to

support her ankle.

Ms. Madron also has a history of moderate to severe asthma. However, she has

been able to control her symptoms. She takes daily medication and participates in an

asthma management class. She has reduced her smoking from three packs per day to less

than one. In 2002, she quit smoking entirely for two weeks and her pulmonary function

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returned to normal. Her doctors found that, with treatment, Ms. Madron can manage her

asthma and is “[a]ble to be as active as [she] desires.” Admin. R. at 199.

On May 12, 2003, Dr. George Twombly, a state agency physician, reviewed Ms.

Madron’s medical records and completed a residual functional capacity (“RFC”)

assessment. Dr. Twombly concluded that Ms. Madron could occasionally lift twenty

pounds, frequently lift ten pounds, stand or walk four hours in an eight hour workday

(with a cane needed only for prolonged standing or walking on uneven surfaces), and sit

about six hours in an eight hour workday. Among the few other limitations noted were

the need to avoid prolonged exposure to extreme cold, avoid jolting motions to the lower

back, and avoid walking on uneven surfaces or unprotected heights. Dr. Twombly noted

that there were “[s]ome inconsistencies” in her statements and that Ms. Madron had “only

partial credibility.” Id. at 142.

Hearing Testimony

At the hearing before the ALJ in June 2004, Ms. Madron described “stabbing”

pain in her right side, particularly in her back and leg. Id. at 26. She stated that she was

able to do some light housework, including dusting, making her bed, and “maybe do[ing]

some dishes,” but she could not vacuum and, because she is unable to bend down, she

could not mop. Id. at 30. She depended on the aid of a friend, who was also a certified

nurses’ assistant, to help her to do her grocery shopping and housework. She reported

that she could sit for five to fifteen minutes, stand for five to ten minutes, lift ten pounds

with her left hand, and lift hardly anything with her right hand alone. She stated that her

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pain medications made her dizzy, sleepy, and lightheaded.

After asking Ms. Madron about her capacities, the ALJ posed several questions to

a vocational expert (“VE”) who joined the hearing by telephone. The ALJ asked if a

person who was limited to light exertional work and could only stand or walk for two

hours in an eight hour workday was capable of working at any of Ms. Madron’s previous

jobs. The VE testified that, with those limitations, Ms. Madron would be able to work as

a “cashier II.” Id. at 45. The VE explained that even if the specific jobs Ms. Madron had

held required more standing or walking than she was currently capable of, others in that

job category would allow for such restrictions. The ALJ also asked whether there would

be jobs available at the national or state level for an individual with the same restrictions

he had previously described that did not require reading, taking into account Ms.

Madron’s age, education, and work experience. The VE replied that “there would be

some real unskilled, light occupations that would fit within the hypothetical” and

provided two examples: “an inspector hand packager” and “a small products assembler.”

Id. at 45-46. Ms. Madron’s counsel inquired whether these two jobs could be performed

by someone who needed to take five minute breaks every fifteen to twenty minutes, and

the VE replied that neither job would permit this.

The ALJ’s Decision

In October 2004, the ALJ issued his decision, applying the five-step sequential

evaluation process for determining whether a claimant is disabled. 20 C.F.R. §§

404.1520, 416.920; see also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

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(describing the five-step process). At step one, the ALJ found that Ms. Madron had “not

engaged in substantial gainful activity since December 15, 2002.”4 Admin. R. at 20. At

step two, he concluded that Ms. Madron’s medical conditions—chronic pulmonary

insufficiency, moderately severe lumbar radiculopathy due to a right side nerve injury,

and a nondisplaced fracture in her left ankle—constituted severe impairments. At step

three, the ALJ compared Ms. Madron’s conditions to the list of impairments that are

conclusively presumed to be disabling. 20 C.F.R. §§ 404.1520(d), 416.920(d). None of

her injuries matched a listed impairment. Turning to steps four and five, the ALJ

reviewed the evidence and assessed her residual functional capacity. The ALJ concluded

that Ms. Madron was capable of light exertional work with the sole additional limitation

of standing or walking no more than two hours in an eight hour workday. The only non-

physical limitation he assessed was a limited education with a reading level of one.

In reaching his conclusions about Ms. Madron’s physical limitations, the ALJ

reviewed the office notes of Dr. Lesnak and Dr. Wertz and noted that “no treating or

examining physician has indicated that she is incapable of working.” Admin. R. at 17-18.

4
In her reply brief, Ms. Madron argues, for the first time, that she
became disabled in February 2002. She notes that the ALJ found that her “work
activities subsequent to February 2002 either comprised unsuccessful work
attempts or did not generate the requisite earnings necessary for substantial
gainful activity as defined in 20 CFR 404.1574 and 416.974.” Admin. R. at 15.
But Ms. Madron has consistently maintained, beginning with her initial
application for disability benefits, id. at 61, and continuing through her opening
appellate brief, Aplt. Br. at 2, that she was not disabled until December 15, 2002.
Therefore, any claim that she was disabled before that date has been waived. See
Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The
failure to raise an issue in an opening brief waives that issue.”).

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To the extent that she complained about side effects of her medications, the ALJ noted

that Ms. Madron had not mentioned any significant side effects to her physicians. He

found that her ankle fracture did not qualify as a disabling impairment because, with

appropriate treatment, including surgery, it should resolve itself within twelve months of

the injury. The ALJ discounted Ms. Madron’s account of the severity of her pain on the

ground that her testimony was “not totally credible.” Id. at 18. He also noted that he had

“considered the administrative findings of fact made by the State agency medical

physicians and other consultants” in accordance with Social Security Ruling 96-6p. Id. at

19.

Step four requires the ALJ to determine whether, in light of her residual functional

capacity, Ms. Madron’s impairment “prevents [her] from performing work [s]he has

performed in the past.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987). Based on the VE’s

testimony, the ALJ concluded that Ms. Madron could return to her previous work as a

“cashier II.” Admin. R. at 19-20. The ALJ further concluded that even if she could not

return to her previous work, she was capable of other jobs existing in significant numbers

in the national economy. Therefore, the ALJ also ruled that Ms. Madron was “not

disabled” at step five. Id. at 21.

Ms. Madron filed a complaint in federal district court appealing the ALJ’s

decision. The court concluded that the ALJ’s decision was both supported by substantial

evidence and free from legal error. This appeal followed.

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 II. DISCUSSION

“We review the Commissioner’s decision to determine whether his factual findings

are supported by substantial evidence in the record viewed as a whole and whether he

applied the correct legal standards.” Frantz v. Astrue, 509 F.3d 1299, 1300 (10th Cir.

2007) (alterations and quotation marks omitted) (quoting Castellano v. Sec’y of Health &

Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. (quotation marks omitted) (quoting Castellano, 26 F.3d at 1028). In this

inquiry, we may “neither reweigh the evidence nor substitute our judgment for that of the

agency.” Id. (quotation marks omitted) (quoting Casias v. Sec’y of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991)).

Ms. Madron argues that the ALJ erred at steps four and five of the sequential

analysis. Step four is comprised of three phases:

In the first phase, the ALJ must evaluate a claimant’s physical and
mental residual functional capacity (RFC), and in the second phase,
he must determine the physical and mental demands of the
claimant’s past relevant work. In the final phase, the ALJ
determines whether the claimant has the ability to meet the job
demands found in phase two despite the mental and/or physical
limitations found in phase one. At each of these phases, the ALJ
must make specific findings.

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (citations omitted). If the

claimant successfully shows that she cannot return to past relevant work, the

burden of proof shifts to the Commissioner at step five to show that the claimant

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retains the capacity to perform an alternative job that is available in the national

economy in light of the claimant’s age, education, and work experience. See

Williams, 844 F.2d at 751.

On appeal, Ms. Madron argues that the RFC used to determine that she was not

disabled at steps four and five was erroneous because the ALJ wrongly discounted the

credibility of her subjective testimony. She also argues that, independent of any RFC

error, the ALJ made numerous other errors in reaching his conclusions at step four and

step five—primarily regarding the use of the vocational expert’s testimony.

A. Ms. Madron’s Credibility

The ALJ must consider the credibility of Ms. Madron’s subjective testimony about

her pain, and also its effect on her ability to work, as part of the determination of her

residual functional capacity. See Social Security Ruling (“SSR”) 96-7p, 1996 WL

374186, at *2 (“[W]henever the individual’s statements about the intensity, persistence,

or functionally limiting effects of pain or other symptoms are not substantiated by

objective medical evidence, the adjudicator must make a finding on the credibility of the

individual’s statements based on a consideration of the entire case record.”). When

addressing an ALJ’s credibility determination, we bear in mind two principles. On one

hand, “[c]redibility determinations are peculiarly the province of the finder of fact, and

we will not upset such determinations when supported by substantial evidence.” Kepler

v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation marks omitted) (quoting Diaz v.

Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)). On the other hand,

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“findings as to credibility should be closely and affirmatively linked to substantial

evidence and not just a conclusion in the guise of findings.” Id. (alteration and quotation

marks omitted) (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)).

Ms. Madron argues that the ALJ’s decision to discount her credibility was not

supported by substantial evidence and that he failed to sufficiently evaluate the required

factors from SSR 96-7p. The ALJ concluded that Ms. Madron’s testimony at the hearing

regarding the severity of her impairments and limitations was “not fully credible” because

it was inconsistent with the medical evidence and her reported daily activities. Admin. R.

at 16. We will address separately each of her severe impairments and the factors the ALJ

relied upon to discount Ms. Madron’s testimony about the limitations they imposed.

1. Pain From Back Injury

Under our established framework for analyzing the credibility of testimony

regarding disabling pain, we must consider:

(1) whether Claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a “loose
nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all
the evidence, both objective and subjective, Claimant’s pain is in fact
disabling.

Branum v. Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004) (quoting Thompson v.

Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)).

It is undisputed that Ms. Madron’s impairment is supported by objective medical

evidence and that her allegations of pain are connected to that impairment. Dr. Lesnak’s

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physical examinations in October 2002 and February 2003 detailed the way that various

movements gave her pain. At her February 2003 visit, Ms. Madron was limping and

using a cane and reported worsened pain. Dr. Lesnak observed that her legs displayed

“give-way weakness secondary to her pain,” and he noted “[p]ossible worsening lumbar

radiculitis/radiculopathy.” Admin. R. at 217. Later that month, Ms. Madron received

injections for her pain. When she returned in April 2003 for a followup, her limping was

more pronounced. Objective tests performed in August 2003 confirmed her physician’s

diagnosis of lumbar radiculopathy, and the ALJ accepted this as a severe impairment.

Thus, the only question for which the ALJ needed to assess Ms. Madron’s credibility

pertained to the severity of her pain.

The ALJ said that he considered the seven factors from SSR 96-7,5 and relied on a

5
Those factors are:

1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain
or other symptoms;
5. Treatment, other than medication, the individual receives or
has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or
has used to relieve pain . . . ; and
7. Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

SSR 96-7p, 1996 WL 374186 at *3. See also Hamlin v. Barnhart, 365 F.3d 1208,
1220 (10th Cir. 2004) (noting that an ALJ should consider these factors).

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number of those factors in discounting Ms. Madron’s statements about her pain. The ALJ

noted that Ms. Madron’s self-reported daily activities prior to her ankle fracture were

“consistent with the ability to perform work activity.” Id. at 18. He also acknowledged

that “no treating or examining physician has indicated that she is incapable of working.”

Id. He found that her complaints about side effects from the medication were undercut by

the fact that she “has not complained to doctors about significant side effects of

medications.” Id. Relatedly, he stated that her “failure to follow prescribed medical

treatment” by not having an MRI performed was “inconsistent with her allegation of

inability to work due to a disabling impairment.” Id. The ALJ also noted that Ms.

Madron’s continued purchase of cigarettes was inconsistent with her alleged inability to

afford medical treatment. He also cited inconsistencies in Ms. Madron’s statements in the

record on other matters as “cast[ing] doubt upon her credibility regarding the severity of

her impairments and limitations.” Id.

Reviewing the record as a whole, we cannot agree that the ALJ’s credibility

finding is supported by substantial evidence. First, Ms. Madron’s self-reported daily

activities do not undercut her allegations of disabling pain. The ALJ found that her self-

reported activities were “consistent with the ability to perform work activity” and

recounted that Ms. Madron “testified that she performed all household chores, including

cleaning (vacuuming and mopping) dusting, making beds, and doing dishes.” Id.

However, this finding is contradicted by the hearing transcript. Ms. Madron testified that

while she tried to do some housework, she required assistance for many everyday tasks.

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She specifically testified that she could not vacuum or mop. Id. at 30.

Further, Ms. Madron’s testimony about her limited daily activities is supported by

her prior statements to the agency. The ALJ must consider the consistency of the

claimant’s own statements “at each prior step of the administrative review process.” SSR

96-7p, 1996 WL 374186, at *5; cf. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.

2005) (upholding credibility decision that relied in part on a claimant’s “daily activities

and contradictions in her various reports regarding them”). In her initial application for

disability benefits, Ms. Madron painted a detailed picture of her limitations. She reported

that she could care for her personal needs, cook meals, and travel to the grocery store and

the doctor, but asserted that she could “not [do] very much” of her household chores

“because of the pain.” Admin. R. at 104-05. On another questionnaire, she asserted that

the only household activity she could perform was “cooking if I don’t have to stand very

long” and that a friend helped her with the rest of her activities. Id. at 108. She also

clarified that she could not clean or do laundry.

In her request for reconsideration, Ms. Madron asserted that she could no longer

walk without a cane or drive. In forms submitted on June 2, 2003, she reiterated that she

could not walk without a cane or drive and stated that her pain had worsened. It is not

clear whether the ALJ considered these supporting statements, but there is no evidence in

the record which contradicts Ms. Madron’s report of her daily activities. Furthermore,

even if Ms. Madron were capable of doing some housework, the “sporadic performance

[of household tasks or work] does not establish that a person is capable of engaging in

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substantial gainful activity.” Thompson, 987 F.2d at 1490 (alteration in original) (quoting

Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987)). Therefore, the ALJ erred in

concluding that her testimony about her daily activities undercut her credibility as to the

severity of her pain.

Second, the fact that no physician stated in the record that Ms. Madron was unable

to work does not seriously undercut her credibility. “While the absence of an objective

medical basis for the degree of severity of pain may affect the weight to be given to the

claimant’s subjective allegations of pain, a lack of objective corroboration of the pain’s

severity cannot justify disregarding those allegations.” Hamlin, 365 F.3d at 1220

(alterations and quotation marks omitted) (quoting Luna v. Bowen, 834 F.2 161, 165 (10th

Cir. 1987)); see also SSR 96-7p, 1996 WL 374186, at *6 (“[A]llegations concerning the

intensity and persistence of pain or other symptoms may not be disregarded solely

because they are not substantiated by objective medical evidence.”). Here, the medical

tests establish a basis for the pain, although the physicians’ statements and tests do not

conclusively prove Ms. Madron’s claims about the extent of her pain. However, this does

not justify disregarding Ms. Madron’s claims. And the ALJ points to no specific way in

which the medical record is inconsistent with Ms. Madron’s assertions that could justify

disregarding her claims.6

6
We accept the ALJ’s conclusion that Ms. Madron’s assertions about
the side-effects of her pain medications are made less credible by her failure to
address the issue with her physicians. However, because the side-effects are
neither asserted as an excuse for failing to take the medication nor asserted as
(continued...)

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 Third, a claimant’s failure to follow prescribed medical treatment can suggest that

her pain is less than alleged. See SSR 96-7p, 1996 WL 374186, at *7 (observing that a

claimant’s credibility may be undermined “if the level or frequency of treatment is

inconsistent with the level of complaints, or if the medical reports or records show that

the individual is not following the treatment as prescribed and there are no good reasons

for this failure”); see also Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (“The fact

that [claimant] regularly exceeded the work restrictions recommended by his doctors was

relevant to the credibility of his testimony concerning disabling pain.”); Hargis v.

Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991) (finding relevant to the credibility

decision that “claimant’s testimony appears to support a conclusion that he had not

regularly taken the pain medication prescribed by his physician”). But “the adjudicator

must not draw any inferences about an individual’s symptoms and their functional effects

from a failure to seek or pursue regular medical treatment without first considering any

explanations that the individual may provide.” SSR 96-7p, 1996 WL 374186, at *7. The

fact that “[t]he individual may be unable to afford treatment and may not have access to

free or low-cost medical services” is a legitimate excuse. Id. at *8. Ms. Madron

consistently maintained that she could not afford an MRI. Dr. Lesnak, who

recommended the MRI, noted that it “cannot be performed until she obtains health

insurance.” Admin. R. at 211. Moreover, Ms. Madron’s claimed inability to pay for an

6
(...continued)
additional reasons she cannot work, it is not clear what relevance this conclusion
has to the credibility of Ms. Madron’s testimony about disabling pain.

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MRI is consistent with her long history of struggling to pay her medical expenses. Ms.

Madron has indicated that she is unable to afford the operation needed to repair her

broken ankle. She occasionally has had to go without her asthma medication because it is

too expensive. And she started going to Clinica Campesina when she could no longer

afford private doctors. On this record, Ms. Madron’s failure to pay for an MRI is not

substantial evidence of overstated pain.7

7
We are unwilling to accept the reasoning of the ALJ that Ms.
Madron’s stated inability to afford the recommended MRI procedure is
questionable and reflects adversely on her credibility because of her continued
purchase of cigarettes. The only case the Commissioner cites as support for using
such reasoning involves comparable costs of the medical services needed and the
amount of cigarettes purchased. In Sias v. Sec’y of Health & Human Servs., the
claimant was instructed by his physician to buy support hose that would cost
roughly $100 and last for two to three months. 861 F.2d 475, 477 (6th Cir. 1988)
(per curiam). However, the claimant did not purchase the support hose, claiming
they were too expensive. Id. at 480. Instead, against the advice of his doctor, he
continued to purchase two packs of cigarettes a day. Id. at 477. The Sixth
Circuit took judicial notice of the cost of purchasing two packs of cigarettes per
day and, comparing those costs to the cost of the support hose, which was
provided in the record, “calculate[d] that the cost of the hose could have been
covered by the savings the claimant would realize if he gave up cigarettes.” Id. at
480.

Even if we were to adopt the Sixth Circuit’s reasoning, we would not
extend it to this case. Without full information about the total costs of the
recommended MRI, we cannot conclude that ceasing smoking would positively
affect in a meaningful way Ms. Madron’s financial ability to avail herself of it.
Indeed, in apparent recognition that insofar as they are analytically significant,
the costs savings from quitting smoking must be assessed in relation to the costs
of the medical procedure at issue, the Sixth Circuit appears to have given Sias a
narrow reading. See McKnight v. Sullivan, 927 F.2d 241, 242 n.1 (6th Cir. 1990)
(per curiam) (rejecting the government’s assertion that Sias creates a general
presumption that a claimant that smokes can afford basic medical care; noting that
“[l]eaving aside the objection that surgery is not ‘basic medical care,’ the Sias
(continued...)

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 Finally, the ALJ relied upon “inconsistencies regarding her statements in

applications for public assistance” to discount Ms. Madron’s testimony. Admin. R. at 18.

This is undoubtedly a relevant consideration. See Huston v. Bowen, 838 F.2d 1125, 1132

(10th Cir 1988) (noting that “[t]he ALJ can weigh and evaluate numerous factors in

determining the credibility of pain testimony,” including “subjective measures of

credibility that are peculiarly within the judgment of the ALJ” as well as “the motivation

of . . . the claimant”). However, the only instance the ALJ identifies is an apparently

untruthful statement, unrelated to these social security claims, in two food assistance

applications in 2002. Contrary to Ms. Madron’s claim that she lived apart from her

husband who was disabled, an investigator concluded that they resided together and that

Donald Madron was self-employed, owning his own auto repair shop. To whatever

extent this demonstrates a general willingness to be untruthful on applications for

government assistance, it is not enough, standing alone, to discount Ms. Madron’s

specific allegations of pain and other limitations relevant to her residual functional

7
(...continued)
decision held that the claimant could afford to buy support hose if claimant could
support his cigarette habit”). Thus, on this record, we would not rely on Ms.
Madron’s continued smoking as a basis for questioning the credibility of her
assertion that she could not afford the recommended MRI. The ALJ applied a
similar smoking-based credibility analysis to Ms. Madron’s pain claims related to
her ankle injury, questioning Ms. Madron’s failure to obtain the recommended
corrective surgery. As noted infra in text, we need not definitively opine
regarding the sufficiency of the ALJ’s credibility analysis in the context of Ms.
Madron’s ankle injury. However, suffice it to say based upon the foregoing that
the ALJ’s smoking-based credibility analysis concerning the ankle injury would
be open to serious question.

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capacity.

Nor do all of these items, taken together, provide a sufficient basis for rejecting

Ms. Madron’s subjective complaints of disabling pain. This is particularly true because it

is not clear to what extent the ALJ relied upon his mistaken view of the record regarding

Ms. Madron’s daily activities. See Frey, 816 F.2d at 517 (noting that while we ordinarily

give “deference to the ALJ’s assessments of witness credibility,” when the ALJ

erroneously rejects evidence in the record, it “call[s] into question more generally his

conclusions regarding credibility”). Thus, we conclude that the ALJ’s decision to entirely

discount Ms. Madron’s testimony about her back pain was not supported by substantial

evidence.

2. Respiratory Impairments

The ALJ’s conclusions regarding whether Ms. Madron’s asthma renders her

disabled find more support in the record. In discounting the credibility of Ms. Madron’s

assertions about the severity of her asthma, the ALJ indicated that: (1) record evidence

did not support her allegation that she was often hoarse or had difficulty speaking as a

result of her asthma; (2) record evidence did not show frequent respiratory infections and

episodes of pneumonia; (3) continued smoking of cigarettes was inconsistent with the

asserted inability to work due to a severe respiratory impairment; and (4) her pulmonary

function showed significant improvement and was almost normal for a brief period when

she ceased smoking. We conclude that substantial evidence supports the ALJ’s decision

to discount her testimony.

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 The record indicates that Ms. Madron has a life-long history of asthma. However,

the record also suggests that she has attended an asthma management class and can

control her symptoms through medication. Indeed, within a few months of beginning

asthma management education, Ms. Madron reported feeling “120% better.” Admin. R.

at 194. At that point, she had not smoked for over two weeks and her lung function had

returned from moderate restriction to within the normal range. The attending nurse

indicated that the asthma self-management goals had been achieved and that Ms. Madron

was “[a]ble to be as active as [she] desires—sleeps well, eats well, exercises, and able to

maintain social contacts.” Id. at 199.

Many of Ms. Madron’s claims about the current severity of her asthma find no

record support. The record does not support Ms. Madron’s assertion that she continues to

“get pneumonia four, five times a winter because of” her “real bad asthma.” Id. at 34.

Nor does the record contain any other indication of how her asthma currently would

restrict her ability to work. On that basis, we conclude that the ALJ did not err in

discounting her argument that her asthma was a disabling impairment.

Therefore, we need not resolve the complexities surrounding the extent to which

the ALJ could rely on her continued smoking as additional grounds for his conclusion.

Compare Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir. 1985) (declining to accept

the argument that a disability claim should be rejected for failure to take medications and

refusal to quit smoking where the claimant had cut back smoking as a result of medical

advice and asserted that he had stopped taking medications only because he lacked the

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financial resources to purchase them), and Gordon v. Schweiker, 725 F.2d 231, 236 (4th

Cir. 1984) (“Smoking, like alcohol abuse, can be an involuntary act for some persons. . . .

The Secretary may only deny the claimant benefits because of alcohol or tobacco abuse if

she finds that a physician has prescribed that the claimant stop smoking or drinking and

the claimant is able voluntarily to stop.”(emphasis added)), with Kisling v. Chater, 105

F.3d 1255, 1257 (8th Cir. 1997) (“Kisling’s respiratory problems are related to her

smoking habit. Although her physicians repeatedly recommended that she curb her

smoking, Kisling did not heed this advice. Impairments that are controllable or amenable

to treatment do not support a finding of disability . . . .”). In sum, we conclude that there

is substantial support in the record for the ALJ’s conclusion that Ms. Madron’s asthma

condition did not render her disabled.

3. Ankle Injury

Ms. Madron does not appear to challenge the ALJ’s conclusion that her ankle

fracture is not a disabling injury. A “disability” requires a “medically determinable

physical or mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12 months.”

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (quoting 42 U.S.C. §

423(d)(1)(A)); see also 42 U.S.C. § 1382c(a)(3)(A). The claimant has the burden to

establish such an impairment. Andrade v. Sec’y of Health & Human Servs., 985 F.2d

1045, 1047 (10th Cir. 1993). Ms. Madron has not alleged, nor identified record evidence

which suggests, that (with or without surgery) this fracture cannot reasonably be expected

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to resolve within that time. Therefore, we need not address the credibility of her pain

from this injury, the credibility of her interest in recovery, or the credibility of her lack of

financial resources for surgery. We note only that we do not find the ALJ’s conclusions

regarding the ankle injury relevant to Ms. Madron’s credibility about her back pain or the

affordability of the MRI discussed above.

4. Conclusion

Without a proper assessment of Ms. Madron’s credibility regarding her back pain

and the limitations it causes, the ALJ had an inadequate basis to determine “whether,

considering all the evidence, both objective and subjective, Claimant’s pain is in fact

disabling.” Branum, 385 F.3d at 1273 (quoting Thompson, 987 F.2d at 1488). Or, stated

differently, the ALJ’s resulting RFC assessment was not based on substantial evidence.

B. Available Jobs

Separate and apart from disregarding Ms. Madron’s testimony as to the severity of

her back pain, the ALJ also erred in concluding that Ms. Madron was capable of returning

to her previous work as a cashier II. That is, even if we were able to uphold the ALJ’s

RFC assessment, we would, nonetheless, be required to reverse his finding that Ms.

Madron is not disabled at step four. The ALJ must determine whether the claimant is

capable of performing any of her previous jobs, given her mental and physical limitations.

The VE testified that Ms. Madron was capable of returning to her previous work as a

cashier II. However, the job of cashier II requires a reading level of 2, and the ALJ

specifically found that Ms. Madron only had a reading level of 1. See Dictionary of

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Occupational Titles (“DOT”) #211.462-010 (4th ed. 1991). The ALJ cannot simply rely

on the testimony of the VE when that testimony conflicts with the DOT. “An ALJ [has] a

duty to investigate and obtain a reasonable explanation for any conflict between the DOT

and expert testimony before the ALJ may rely on the expert testimony as substantial

evidence.” Hackett, 475 F.3d at 1171. The VE did not offer, nor did the ALJ seek, any

explanation for this apparent contradiction. Therefore, the ALJ’s finding that Ms.

Madron could work as a cashier II is not supported by substantial evidence. Moreover,

the cashier II position was Ms. Madron’s “only possibility” to return to her previous

work. Admin. R. at 45.

The ALJ made the same mistake at step five of the analysis. At step five, the

Commissioner had the burden of proving that Ms. Madron was capable of performing an

alternate job that was available in the national economy. The VE identified two potential

jobs that Ms. Madron might be able to perform: inspector/hand packager and small

products assembler. However, the job of inspector/hand packager also requires a reading

level of 2. See DOT #559.687-074. Once again, the VE failed to explain how Ms.

Madron could be expected to perform this job despite her difficulty reading. This

deficiency severely undercuts the ALJ’s conclusion that Ms. Madron is not disabled.

C. Remedy

“When a decision of the [Commissioner] is reversed on appeal, it is within this

court’s discretion to remand either for further administrative proceedings or for an

immediate award of benefits.” Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993).

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In deciding on the appropriate remedy, we consider both “the length of time the matter

has been pending and whether or not ‘given the available evidence, remand for additional

fact-finding would serve [any] useful purpose but would merely delay the receipt of

benefits.’” Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (alteration in

original) (citation omitted) (quoting Harris v. Sec’y of Health & Human Servs., 821 F.2d

541, 545 (10th Cir. 1987)). In this case, we find that an immediate award of benefits is

appropriate. It has been nearly six years since Ms. Madron first applied for supplemental

security income and disability benefits. There is nothing to be gained from prolonging

the proceedings any further. Even with the ALJ’s erroneous RFC assessment, it is clear

that Ms. Madron is incapable of performing any of her previous work. Moreover, the

ALJ’s conclusion that there are alternate jobs that she would be capable of performing is

highly suspect, given his failure to appropriately account for her limited ability to read.

Once a proper RFC assessment is done, giving due consideration to Ms. Madron’s

significant back pain, there is no reasonable probability that she would be denied benefits.

III. CONCLUSION

Based upon the foregoing analysis, we REVERSE the judgment of the district

court and REMAND the case with instructions to remand to the Commissioner for an

immediate award of benefits as of December 15, 2002.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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