* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

*** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 10/28/96 FOR THE TENTH CIRCUIT

RONNIE M. SUTTERFIELD,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner of Social Security Administration, *

Defendant-Appellee. No. 96-7025 (D.C. No. CV-95-15-S) (E.D. Okla.)

ORDER AND JUDGMENT **

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, *** District Judge.-2-

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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Ronnie Sutterfield appeals the district co urt’s affirmance of the decision by the Secretary of Health and Human Servi ces denying his application for social security disability benefits. Because t he record does not contain substantial evidence to support the Secretary’s dec ision that claimant can perform the full range of sedentary work, we reverse and re mand for further proceedings. On May 22, 1993, claimant was involved in a car acc ident resulting in a compression fracture of his L3 vertebra. After a three-day hospital stay, claimant was released, and was seen by orthopedist Sauer fou r times over the next four months. Dr. Sauer treated claimant with a corset, pain medication, and exercises, restricted claimant’s lifting to no more than twenty-five pounds, and noted that the compression fracture was healing in position. Based on claimant’s complaints of radiating pain, Dr. Sauer ordered an MRI, which revealed disc bulging with “possible” impression on the nerve root. R. II at 83. Dr. Sauer’s records note that claimant’s right hip pain appeared to increase with weight bearing on the-3-

right foot, but that there was “no significant prob lem with the left lower extremity except when sitting for long periods of time.” Id. at 86. After reviewing the MRI, Dr. Sauer recommended abdominal and lumbar str engthening exercises, and advised claimant that he needed to start using over -the-counter analgesics rather than prescription painkillers. Claimant’s last vis it to Dr. Sauer was on September 8, 1993, with no record of medical treatm ent after that date. At a hearing before an administrative law judge (AL J), claimant and his father testified that claimant’s back pain limited his activities significantly, stating that he spent up to eighty percent of his t ime in bed, id. at 96; that he could not lift anything heavier than a newspaper, i d. at 95; that he could not stand longer than six minutes or walk more than four minutes, and could not sit very long, id. at 95-96; that stooping, bending, pushing, pulling , and riding in a car aggravated his pain, id. at 96-97; that the pain caused nausea and affected his ability to concentrate, id. at 97; that he took both prescription and over-the

counter pain medication, id. at 92; and that he used a cane and a back brace regularly, id. at 98. Claimant also testified that he had recent ly seen his family physician for pain, and that he did not return to D r. Sauer because he owed him too much money. Id. at 93. The ALJ found that claimant showed a complete inabi lity to perform substantial gainful activity for a time, but that h e failed to show his disabling-4-

condition lasted, or was expected to last, more tha n twelve months. The ALJ concluded that although claimant could not return t o his former work, he had regained the ability to perform the full range of s edentary work within twelve months of his accident. The Appeals Council deniedreview, making the ALJ’s determination the final decision of the Secretary. The district court affirmed, and this appeal followed. We review the Secretary’s decision to determine whe ther her factual findings are supported by substantial evidence and whether correct legal standards were applied. Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is “‘s uch relevant evidence as a reasonable mind might accept as adequate to supporta conclusion.’” Richardson v. Perales , 402 U.S. 389, 401 (1971)(quoting Consolidated Edi son Co. v. NLRB , 305 U.S. 197, 229 (1938)). We may “neither reweighthe evidence nor substitute our judgment” for that of the Secretary. Casias v. Secretary of Health & Human
Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Claimant argues that substantial evidence does not support the conclusion that he can perform sedentary work. We agree. Onc e claimant showed that he could not return to his former employment, the burd en shifted to the Secretary to show that claimant retained the residual functional capacity to perform other work. See Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993).-5-

Although the ALJ found that the Secretary met this burden, by showing that claimant could perform the full range of sedentary work, we see no basis in the record upon which this finding could be made. Othe r than the testimony of claimant and his father, there is no evidence regar ding claimant’s ability to perform the exertional requirements of sedentary wo rk, except for Dr. Sauer’s opinion that claimant could lift up to twenty-five pounds. Instead, the ALJ relied on the fact that claimant discontinued treatment in September 1993 to support his conclusion that claimant’s condition had improved s ufficiently to permit sedentary work. “The absence of evidence is not evidence.” Thompso n , 987 F.2d at 1491. Here, as in Thompson , claimant testified that he discontinued treatmentfor financial reasons. Also as in Thompson , the ALJ failed to order a consultative examination to determine claimant’s capabilities. Further, although claimant testified that he had recently seen a family physic ian, no effort was made to obtain this medical record. Because the ALJ’s find ings regarding claimant’s residual functional capacity are not supported by s ubstantial evidence, which he had the power to obtain, this case must be remandedfor further proceedings. See id. at 1491-92; see also Ragland v. Shalala , 992 F.2d 1056, 1058-60 (10th Cir. 1993)(holding ALJ’s finding that claimant could per form sedentary work unsupported, when records did not show ability to s it for prolonged periods,-6-

former medical records not obtained, and failure to seek treatment due to financial inability); Baker v. Bowen , 886 F.2d 289, 292 (10th Cir. 1989)(holding ALJ’s reliance on dearth of objective medical evidence er roneous when such evidence was within his power to obtain). The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED and REMANDED for further proce edings.

Entered for the Court

Michael R. Murphy Circuit Judge