* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel , the newly-appointed

Commissioner of Social Security, is substituted forShirley S. Chater, former Commissioner of Social Security, as the defendant i n this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### DEC 11 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
BETTY J. GIRDNER,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-7055 (D.C. No. 96-CV-99-S) (E.D. Okla.)

ORDER AND JUDGMENT **

Before BALDOCK, BARRETT, 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Betty J. Girdner appeals from an order of the distr ict court affirming the Commissioner’s decision denying her application forsocial security disability benefits. Ms. Girdner filed for disability benefit s on June 30, 1993. The alleged basis of her disability is major depression and bla dder problems. Her application was denied initially and on reconsideration. Following a de novo hearing on June 21, 1994, an ad ministrative law judge (ALJ) determined that she was not disabled within t he meaning of the Social Security Act. Ms. Girdner thereafter filed a compl aint in district court, which affirmed the Commissioner’s decision. Ms. Girdner then appealed to this court. We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in t he record viewed as a whole and whether the correct legal standards were applie d. See Andrade v. Secretary of Health & Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantia l evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fowler v. Bowen , 876 F.2d 1451, 1453 (10th Cir. 1989) (quotation omitted). The Commissioner has established a five-step evaluation process for determining whether a claimant is disabled within t he meaning of the Social-3-

Security Act. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-step disability test). The claima nt retains the burden of proving disability throughout the first four steps of the p rocess. See id. at 751. Here, the ALJ determined, at step four, that Ms. Gi rdner retained sufficient residual functional capacity (RFC) to allow her to return to her past relevant work as a senior interviewer at an employment office. M s. Girdner contends that this determination is flawed in several respects. Ms. Girdner contests the ALJ’s conclusion that her bladder problems (which include both incontinence and urinary retent ion) have only a minimal effect on her ability to work and are therefore not severe impairments. In rejecting her claim of bladder problems, the ALJ re lied on the lack of clinical or diagnostic evidence to support the existence of a urological impairment which would produce the symptoms to the degree Ms. Girdner indicated. See Appellant’s App., Vol. II at 15. The ALJ acknowledged that Ms. Girdner had been eval uated by a urologist for her bladder problems. However, he rejected thi s evaluation as evidence of disability because the urologist’s records were notmade part of the record. See id. This was error. An ALJ cannot conclude that an i mpairment is non-severe based on lack of medical evidence when he is aware that such evidence exists or may exist but simply has not been made part of the record. He “has the duty to-4-

develop the record by obtaining pertinent, availabl e medical records which come to his attention during the course of the hearing.” Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996). The ALJ should have attempt ed to obtain and review the urologist’s records before rejecting Ms. Girdner’s alleged impairment based on lack of medical evidence. For this reason, we mustreverse and remand for further development of the record and reconsiderati on regarding this impairment. On remand, the ALJ should also reconsider his analy sis of Ms. Girdner’s alleged mental impairment. The ALJ rejected her tr eating psychologist’s conclusion that Ms. Girdner frequently decompensate s under pressure; however, he did not point to any objective evidence to suppo rt his own conclusion that such episodes occurred only “once or twice” in work or w ork-like settings. See Cruse v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 617-18 (10th Cir. 1995) (ALJ must discuss evidence used to reach conc lusions on psychiatric review technique (PRT) form, and such conclusions m ust be supported by substantial evidence). Moreover, although he completed the PRT form, the A LJ failed to comply with the remaining two steps in the mental RFC dete rmination. See Winfrey v. Chater , 92 F.3d 1017, 1023-26 (10th Cir. 1996) (describin g three-step process for evaluating impairments at step four). He did n ot make specific findings concerning the mental demands of Ms. Girdner’s pastrelevant work, and he was-5-

therefore unable to make appropriate findings abouther ability to return to her past relevant work despite her mental impairment. The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED, and this case is REMANDED forfurther proceedings in accordance with this order and judgment.

Entered for the Court

James E. Barrett Senior Circuit Judge