F I L E D

United States Court of Appeals

Tenth Circuit

MAY 30 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SARAH ANGEL,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant-Appellee.

No. 02-7072

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-01-188-P)

Submitted on the briefs:

Kyle J. Saunders of Saunders and Saunders, Ada, Oklahoma, for PlaintiffAppellant. 

Sheldon J. Sperling, United States Attorney, Tina M. Waddell, Regional Chief

Counsel, Michael McGaughran, Deputy Regional Chief Counsel, and James A.

Garrett, Assistant Regional Counsel, Office of the General Counsel, Social

Security Administration, Dallas, Texas, for Defendant-Appellee.

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.

KELLY , Circuit Judge.
1 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 

2 The ALJ determined that this is the relevant time period for determining

whether Angel was disabled, and Angel is not challenging the ALJ’s

determination in this appeal. Like the ALJ, we will examine medical evidence

generated prior to July 24, 1997, “only for purposes of establishing a baseline

from which to evaluate [Angel’s] medical status.” Aplt. App. at 36.

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Plaintiff-appellant Sara Angel appeals from the district court’s order

affirming the Commissioner’s denial of her application for disability insurance

benefits and supplemental security income benefits under the Social Security

Act. 1

 We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

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

are supported by substantial evidence and whether the correct legal standards

were applied. See Barnett v. Apfel , 231 F.3d 687, 689 (10th Cir. 2000).

Angel claims that she has been disabled for the relevant time period of

July 24, 1997, through December 31, 1999 2

 as a result of back and bladder

impairments. After Angel’s application for benefits was initially denied, a

de novo hearing was held before an administrative law judge (ALJ). In a decision

dated January 21, 2000, the ALJ determined, at step three of the five-part

sequential evaluation process for determining disability, that Angel’s back

impairment did not meet or equal the impairment listing for vertebrogenic
3 The ALJ did not specify the sources he relied on to determine Angel’s

physical limitations, but it appears that he relied primarily on the report prepared

by Dr. Vallis D. Anthony. See Aplt. App. at 298-305. Dr. Anthony was retained

by the Commissioner to evaluate Angel’s medical records. See Aplee. Br. at 5.

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disorders of the spine, listing 1.05C. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 1.05C (1999). The ALJ then determined at step four of the evaluation process

that Angel was not disabled. First, the ALJ concluded that, while Angel suffers

from severe back and bladder impairments, she has the residual functional

capacity to perform a wide range of light work subject to the limitations of

“lifting no more than 10 pounds on a frequent basis and no more than a maximum

of 20 pounds, standing or walking for no more than 2 hours at a time, or for

longer than 6 hours during an eight hour day, only occasional stooping, and a

need to self catheterize her bladder for 10 [to] 15 minutes every 2 to 21⁄2 hours

during the work day.” 3

 Aplt. App. at 37-38. Second, based on the testimony of

the vocational expert concerning the residual functional capacity necessary to

perform her past relevant work, the ALJ determined that Angel was capable of

performing her past relevant work as an insurance clerk, receptionist, accounts

payable clerk, senior office assistant, convenience store clerk, and barmaid. 

Id. at 38.

In February 2001, the Appeals Council denied Angel’s request for review

of the ALJ’s decision. Angel then filed a complaint in the district court. In
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March 2002, the district court entered an order affirming the ALJ’s decision

denying Angel’s application for benefits. This appeal then followed.

In this appeal, Angel claims that: (1) the ALJ erred at step three in

rejecting the opinion of her treating osteopath, Dr. Schneider, that her back

impairment meets or equals listing 1.05C; (2) the ALJ erred at step four by failing

to address all of the relevant evidence in the record concerning the process she

must undergo to catheterize herself; (3) the ALJ erred at step four by failing to

provide sufficient reasons for rejecting her testimony and her treating physician’s

opinions regarding the limitations imposed by her back pain and problems;

and (4) she does not have the residual functional capacity to perform her past

relevant work.

Having thoroughly reviewed the record and the pertinent legal authorities,

we conclude that the ALJ’s finding at step three that Angel’s back impairment

does not meet or equal listing 1.05C is supported by substantial evidence in the

record. However, we agree with Angel that the ALJ erred at step four by failing

to address all of the relevant evidence in the record concerning the process she

must undergo to catheterize herself. We also agree with Angel that the ALJ erred

at step four by failing to provide sufficient reasons for rejecting her testimony and

her treating physician’s opinions regarding the limitations imposed by her back

pain and problems. Accordingly, we reverse the order of the district court
4 Given the nature of our remand, we do not address Angel’s claim that she

does not have the residual functional capacity to perform her past relevant work,

and we leave that issue for the ALJ to reconsider on remand.

5 Listing 1.05C was revised in 2002, and it is now listing 1.04. See

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (2002).

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affirming the ALJ’s decision denying benefits, and we remand this matter for

further proceedings before the ALJ. 4

1. Listing 1.05C.

Listing 1.05C provides as follows:

C. Other vertebrogenic disorders (e.g., herniated [disk], spinal

stenosis) with the following persisting for at least 3 months

despite prescribed therapy and expected to last 12 months. 

With both 1 and 2:

1. Pain, muscle spasm, and significant limitation of motion in

the spine; and 

2. Appropriate radicular distribution of significant motor loss

with muscle weakness and sensory and reflex loss.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C (1999). 5 Although the listing does

not define the term “vertebrogenic disorder,” another section of the listing

regulations, which specifically cross-references § 1.05C, states that it includes

disorders that result in impairment “because of distortion of the bony and

ligamentous architecture of the spine or impingement of a herniated [disk] or

bulging annulus on a nerve root.” Id. at § 1.00B. 
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Angel’s treating osteopath, Dr. Schneider, testified at the hearing before the

ALJ that Angel met or equaled listing 1.05C. According to Dr. Schneider,

“[Angel] actually meets number one. Number two on that, the bladder

dysfunction and her lack of tenacity or lack of reflex there, I think she meets it or

equals that criteria.” Aplt. App. at 68. As this quote makes clear, Dr. Schneider

only addressed the two sub-parts of listing 1.05C, and she did not specifically

address the threshold issue under the listing of whether Angel suffered from

a vertebrogenic disorder of the spine during the relevant time period of July 24,

1997 through December 31, 1999. Further, there is no evidence in the record

that Angel suffered from a vertebrogenic disorder of the spine during the relevant

time period.

The record shows that Angel injured her back in a work-related incident in

October 1994, and she underwent a right hemilaminectomy and disk excision in

May 1995 to repair a herniated disk at L5-S1. Id. at 154-56, 158-59. An MRI

subsequently taken in February 1997 showed no definite evidence of any recurrent

disk herniation at L5-S1. Id. at 202. Although the February 1997 MRI did show

disk degeneration at L5-S1 and a mild bulging of the disc at L4-5, an

electromyogram (EMG) performed at the same time showed no definite evidence

of active lumbar radiculopathy in Angel’s lower extremities. Id. at 201. Based

on the EMG results, Dr. Benner, Angel’s neurosurgeon, reported to her at the time
6 The December 1998 MRI also showed no evidence of spinal stenosis. See

Aplt. App. at 208.

7 The Appeals Council made the January 25, 2000 MRI a part of the

administrative record, and it considered it in reviewing the ALJ’s decision. See

Aplt. App. at 14, 16, 387. Even though the MRI was performed four days after

the ALJ issued his decision, we may consider it as part of the record on appeal

since it provides material evidence relating to the period before the ALJ’s

decision. See O’Dell v. Shalala , 44 F.3d 855, 858-59 (10th Cir. 1994).

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that there were “no signs of any nerve root damage or irritation” in the area of her

prior surgery. Id. at 177.

During her testimony at the hearing before the ALJ in November 1999,

Dr. Schneider testified that it was her belief that Angel “probably” had a “new”

herniated disk at L4-L5. Id. at 64. Dr. Schneider admitted, however, that she did

not have any objective medical evidence to support her testimony. Id. at 72. In

fact, an MRI taken in December 1998 showed no evidence of a herniated disk at

L4-L5 or elsewhere on Angel’s lumbar spine. 6

 Id. at 208. On January 25, 2000,

a little over a month after the hearing before the ALJ, Dr. Schneider referred

Angel for another MRI, and that MRI also showed no evidence of a herniated disk

in Angel’s lumbar spine. 7 Id. at 387.

In her brief on appeal, Angel has admitted that her back problems do not

satisfy listing 1.05C standing alone. See Aplt. Br. at 14. To overcome this failure

of proof, Angel argues that the ALJ erred by failing to consider her bladder

problem in combination with her back problems in determining whether she met
8 The medical records of Dr. Forrest at pages 385 and 390 of appellant’s

appendix were made a part of the administrative record by the Appeals Council,

and the Appeals Council considered the records in reviewing the ALJ’s decision. 

See Aplt. App. at 14, 16, 385, 390. We may consider the records as part of the

record on appeal since they provide material evidence relating to the period

before the ALJ’s decision. See O’Dell, 44 F.3d at 858-59.

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or equaled listing 1.05C. Id. at 14-15. We disagree. At most, Angel has only

shown that her urologist, Dr. Forrest, has opined that her bladder problem “most

likely arises from old spinal cord disease,” Aplt. App. at 385, and that the bladder

problem “is more than likely associated with nerve changes present within the

spinal cord causing the resulting hypotonicity of the bladder,” id. at 390. 8 Angel

has failed, however, to put forth any specific medical evidence linking her

bladder problem to a vertebrogenic disorder of the spine such as the herniated

disk she sustained in October 1994. Id. at 177 (medical record of Dr. Benner

noting that he did not “have an explanation for [Angel’s] increased bladder

problems, at least not in the context of [her 1995] back surgery), 385 (medical

record of Dr. Forrest noting that Angel was diagnosed as having a neurogenic

bladder in late 1993 or early 1994, and that he could not “speak to the point of

any changes in her bladder function before or after [the 1995] spinal cord surgery,

as these are not objectively documented”). Thus, we hold that the ALJ’s

determination that Angel does not meet or equal listing 1.05C is supported by

substantial evidence in the record.
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2. Bladder Impairment.

In performing his step four analysis, the ALJ ignored and failed to address

Dr. Schneider’s testimony at the hearing, which is supported by her medical

records, that Angel needs a sterile environment in which to catheterize herself due

to the risk of infection. See Aplt. App. at 65, 218, 344. This omission is

significant because, following Dr. Schneider’s testimony, the vocational expert

(VE) testified, in response to a hypothetical question posed by Angel’s counsel,

that the requirement of providing Angel with a sterile environment, which would

basically require that she have a personal, or private, bathroom, “would have a

negative impact . . . [and] would [not] preclude all employment, but it would be

rather significant in reducing the occupational base.” Id. at 77.

Dr. Schneider’s testimony, and the related testimony of the VE, is

supported by substantial medical evidence in the record showing that Angel is

at high risk of contracting recurrent urinary tract infections. Id. at 261-67,

273-74, 276, 328-29, 332-33, 385, 390. We therefore agree with Angel that the

ALJ’s failure to address the testimony is reversible error. See Drapeau v.

Massanari , 255 F.3d 1211, 1213 (10th Cir. 2001) (noting that ALJ must provide

specific and legitimate reasons for disregarding opinion of treating physician,

and that “ALJ is required to give controlling weight to a treating physician’s

well-supported opinion, so long as it is not inconsistent with other substantial
9 We note that Dr. Schneider’s records from 1997 and 1998 state that Angel

needed only ten to fifteen minutes to complete the catheterization process. See

Aplt. App. at 218, 344. However, Dr. Schneider was not questioned about this

issue at the hearing before the ALJ. As a result, it is unclear based on the current

record whether Dr. Schneider would oppose Angel’s testimony that it actually

takes her twenty to thirty minutes to complete the process.

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evidence in the record”); Campbell v. Bowen , 822 F.2d 1518, 1523 n.6 (10th Cir.

1987) (noting that ALJ may not ignore unfavorable answer by VE that is

supported by substantial evidence). Thus, we remand this matter with directions

for the ALJ to address Dr. Schneider’s testimony regarding the requirement of a

sterile environment, and the related testimony of the VE, and reconsider whether

the requirement precludes Angel from performing her past relevant work.

Although Angel has not raised the issue in this appeal, we also note that the

ALJ ignored and failed to address: (1) Angel’s testimony at the hearing that it

takes her twenty to thirty minutes to complete the catheterization process, as

opposed to the ten to thirty minutes posited by the ALJ in his hypothetical to the

VE, 9

see Aplt. App. at 53, 58, 76; and (2) the VE’s testimony that, if Angel needs

up to thirty minutes to catheterize herself, then the time she would be required to

devote to the process during the work day is “inconsistent with typical employer

expectations,” id. at 77. Because of the potential significance of this testimony to

the step four determination, the ALJ should address it as part of the step four

analysis on remand.
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3. ALJ’s Credibility and Treating Physician Determinations.

At the hearing before the ALJ, Angel testified that, as a result of her back

pain and problems, she can lift no more than a gallon of milk and she can only

stand, sit, or walk for fifteen to twenty minutes at a time. Id. at 54-55. This is

consistent with the testimony and opinions of Dr. Schneider. Id. at 67, 336-37,

339-40. However, the ALJ found that Angel’s testimony was not credible and

that Dr. Schneider’s opinions were not supported by the medical evidence in the

record. Angel argues that the reasons put forth by the ALJ for rejecting her

testimony and the opinions of Dr. Schneider are not supported by the record. 

We agree.

With respect to the credibility of Angel’s subjective complaints regarding

her back pain and problems, the ALJ found that they were “not fully credible

because, but not limited to, the objective findings, or the lack thereof, by treating

and examining physicians, the lack of medication for severe pain, the frequency

of treatments by physicians and the lack of discomfort shown by the claimant at

the hearing.” Id. at 37. The ALJ also found that Angel’s credibility “is

diminished because the objective medical evidence shows a significant lack of

continuous treatment for her back and her treating physician, Dr. Schneider, did

not refer her to a specialist.” Id. With respect to Dr. Schneider’s opinions, the
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ALJ gave them “a reduced weight because they are not supported by any objective

testing, x-rays, CT scans, MRIs, or even physical examinations.” Id.

The ALJ’s findings are not supported by substantial evidence in the record

because the record shows that: (1) Angel had objective findings of back problems

in the form of degenerative disk disease, one or more bulging disks, and scar

tissue documented by the MRIs taken in 1997, 1998, and 2000, id. at 202, 208,

387, and there is no dispute that she had a herniated disk and steroid atrophy in

1995, id. at 154-59, 163-64, 167, 169; (2) Angel has been taking prescribed pain

medication for several years; (3) Angel has been seeing Dr. Schneider for

treatment of her back pain and problems for several years, although, as

Dr. Schneider conceded at the hearing before the ALJ, her treatment has primarily

involved providing prescriptions for pain medication, id. at 70-73; and (4) Angel

has seen two specialists to evaluate her continuing back pain and problems (her

neurosurgeon, Dr. Benner, and an orthopedic surgeon, Dr. Bazih), id. at 177-78,

210-11. 

The ALJ may be correct that the level of treatment Angel has received for

her back pain and problems is inconsistent with her and Dr. Schneider’s claims

regarding the severity of her back impairment. But, in the absence of a more

thorough analysis and more specific findings by the ALJ, the ALJ cannot ignore

the dispositive issue of whether Angel’s objectively documented back problems
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were capable of producing the pain and physical limitations that she and

Dr. Schneider were alleging as of the time of the hearing before the ALJ. See

Thompson v. Sullivan , 987 F.2d 1482, 1488-90 (10th Cir. 1993) (noting that ALJ

must determine whether a claimant’s subjective allegations of pain are supported

by objective medical evidence in the record, and setting forth criteria that ALJ

must consider to determine whether a claimant has pursued and/or received

medical treatment that is consistent with subjective allegations). Accordingly, we

conclude that the ALJ’s conclusory findings are an insufficient basis for rejecting

Angel’s testimony and Dr. Schneider’s opinions, and we remand the step four

issue of whether Angel’s back impairment prevents her from performing her past

relevant work to the ALJ for reconsideration. We note, however, that “[n]o

particular result is dictated,” id. at 1493, and we remand this matter only to assure

"that the correct legal standards are invoked in reaching a decision based on the

facts of this case," Huston v. Bowen , 838 F.2d 1125, 1132 (10th Cir. 1988). 

The order of the district court is REVERSED, and this case is REMANDED

to the district court with instructions to remand the case to the Commissioner for

further proceedings before the ALJ.