* This order and judgment is not binding precedent, e xcept under the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 

### SEP 1 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DONALD R. NEIL,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-7134 (D.C. No. 96-CV-229-B) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , 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 argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Donald R. Neil appeals from the denial of social security disability and supplemental security income benefits. He argu es that the administrative law judge (ALJ) failed to recognize that he is disabledunder the listings, failed to follow this court’s pain standard, failed to followthe treating physician rule, and failed to ask a proper hypothetical question to the vocational expert (VE). He also alleges that the magistrate judge, and therefo re the district court, failed to correctly apply this court’s test for assessing a c laimant’s refusal to follow treatment. We exercise jurisdiction under 28 U.S.C . § 1291 and 42 U.S.C. § 405g. We are persuaded by plaintiff’s claims of error and remand for further proceedings.

Disability Claim Plaintiff was born on March 22, 1935. He graduatedfrom high school and completed two years of junior college. His past re levant work included: closet shelf cutter, office worker, carpenter supervisor, and area relief manager trainee. He alleges that he has been disabled since October 31, 1989, due to injuries suffered in a motor vehicle accident on November 10 , 1989, when the truck he was driving was rear-ended, jolting him violently. Plaintiff lived in Florida at the time of the accident, but moved to Oklahoma in 1993 . His alleged impairments include a ruptured disk in his neck, neck pain, sev ere headaches, numbness in his-3-

arms and hands, and limited ability to sit, stand, or walk because of back pain. He also alleges impairments because of loss of bone , loss of bowel and bladder control, gait disturbance, fatigue, and difficulty concentrating because of pain. He was last insured for social security disability benefits on December 31, 1992, and must prove he became disabled before that date to secure those benefits. For supplemental security income benefits, he must prov e only that he has become disabled. Plaintiff was unrepresented at the admin istrative hearing, but has been represented by counsel since then.

Summary of the Medical Evidence After his motor vehicle accident in 1989, plaintiff initially sought treatment from an unnamed doctor whose notes are not in the r ecord. See Appellant’s App., Vol. II at 151, 161. Plaintiff reported that he wa s treated weekly with medication and therapy and wore a neck brace, but that the pai n, while relieved at first, increased until it was constant. See id. at 151. In February 1991, while still in Florida, plaintiff began seeing Donald W. Hall, O.D ., complaining of neck pain, headaches, pain from his left shoulder down to the elbow, numbness and tingling in his lower arm and fingers, and an intermittentlyitchy lump on the right side of his thoracic spine. Id. at 161. Among other symptoms, Dr. Hall found musc le spasms. See id. at 182. He reported that an MRI performed by Davi d K. Davis,-4-

M.D., on April 17, 1991, revealed “dorsal bulging and herniation of the disc material at C-5 and C-6 in both directions, giving slight displacement of the spinal cord.” Id. at 162; see also id. at 186. Dr. Hall deemed physical therapy “a palliative measure until surgical intervention [cou ld be] initiated,” and referred plaintiff to Jeffrey S. Walker, M.D., a neurosurgeo n. Dr. Walker noted, among other things, muscle spasm and depression. See id. at 153. He ordered a myelogram and post myelogram CT scan, which confirm ed that plaintiff had a “left sided large ruptured disc at [C]6-7 with some stenosis [narrowing] at that level. At [C]5-6 there was a large spondulitic [si c] bar [inflammation] with fairly significant stenosis.” Id. at 148. On August 27, 1991, Dr. Walker advised plaintiff to undergo a “two level anterior cervical microdiscectomy and fusion,” to excise the ruptured disk and fuse his spine togethe r. Id. at 148. He gave plaintiff “no guarantees . . . whatsoever” about the outcome, id. at 148, and explained that the risks of the surgery included “headache, dye re action, bleeding, infection, some kind of unforseen [sic] neurologic deficit, . . . quadraplegia [sic], . . . residual neck pain, no arm pain relief, hoarseness, difficulty swallowing, etc.,” id. at 149. Plaintiff did not have the surgery, saying he could not afford it. See id. at 151. Dr. Walker recorded in his notes that plainti ff accepted the risks of delaying
surgery, see id. at 148, which could include “weakness, numbness inthe arms, spinal cord injury, paralysis, loss of bowel/bladde r control, gait disturbance, etc.,”1 P.I.P. appears to be a reference to personal injuryprotection, a required

element of motor vehicle insurance under Florida law. See, e.g., Fla. Stat. Ann. § 627.736(1). Plaintiff’s wife testified that he w as awarded a little over $30,000, although both plaintiff and the ALJ referred to the award as worker’s compensation. See Appellant’s App., Vol. II at 55. Plaintiff was no t injured at work, however, and Dr. Hall’s note suggests that th e award may have been a settlement under plaintiff’s or the other driver’s car insurance. -5- id. at 154. On April 10, 1992, Dr. Hall recorded in h is notes that plaintiff was in “a considerable dilemma [because there was] not eno ugh money left in his P.I.P. 1 money to pay for the surgery . . . [and t]he neuros urgeons [did] not want to take a letter of protection for [it].” Id. at 162. In November 1992, plaintiff was examined by Francis co B. Gomes, M.D., another neurosurgeon. Plaintiff was still complain ing of neck pain and stiffness; headaches; pain in his left shoulder; pain, numbnes s, and tingling in his left arm down to his fingers; and pain, numbness and itchingover the lower thoracic region. See id. at 196, 199, 200. Dr. Gomes reported that plainti ff had erect posture and normal gait, but that his grip strengthwas weak in his left hand, the range of motion of his cervical spine was severely restricted, his deep tendon reflexes were hypoactive, and he had a sensory loss at C7-8. See id. at 197. He concluded that surgery “in all probability” would b e required. Id. at 198. Until plaintiff’s symptoms got worse, however, Dr. Gomes preferred to “follow a conservative route” of pain medication, a nonsteroi dal anti-inflammatory-6-

medication, and intermittent cervical traction. Id

. at 195. He advised plaintiff to avoid heavy lifting, pulling, and pushing. See id. After plaintiff moved to Oklahoma, he sought treatm ent from John F. Rice, D.O. Dr. Rice reported plaintiff’s history of backproblems and C5-6 cervical spondylosis with radiculopathy in both arms, weakne ss in the left hand, and suspected ruptured disk at C5-6. See id. at 209. He said that plaintiff needed anti-inflammatory medicine daily and intermittent traction; he continued plaintiff’s prescription for pain medication as wel l. See id. at 210-11. Dr. Rice repeatedly expressed the opinion that plaintiff was not capable of working. See id. at 209, 210, 211. Plaintiff testified that Drs. R ice, Walker, and Gomes all warned him that if he had an accident as minor as s tepping off the curb wrong before the surgery, he could become paralyzed. See id. at 68; see also id. at 154. Plaintiff’s wife testified that his doctors no long er considered him a candidate for surgery due to the continuing deterioration of the disks in his neck. See id.
at 69-70. Finally, plaintiff was also examined in Oklahoma bythe agency’s consultative physician, James M. Ritze, O.D., in Ap ril 1994. Dr. Ritze took plaintiff’s history and performed range of motion t ests. Among other findings, he noted muscle spasm at C3-6, sensory loss, and pain. See id. at 207. His findings on plaintiff’s cervical range of motion are consist ent with those of Dr. Gomes.-7-

Seeid. at 205. He offered no conclusions concerning plai ntiff’s pain or other complaints, need for therapy or surgery, or abilityor inability to work. In addition to the injuries caused by his motor veh icle accident, plaintiff suffered a compound fracture of the lower lumbar sp ine in 1979 when a tree fell on him while he was working for a tree company. Se eid. at 59-60, 65. He also had unsuccessful surgery in the mid-1980's for a ri ght inguinal hernia, and part of his colon was removed due to diverticulitis in 1985 . See id. 58, 153. His intestinal problems continue, see id. at 67, and his lower back problems have gotten worse since his accident in 1989, see, e.g. , id. at 204.

Discussion The ALJ denied plaintiff’s claim at step five of th e evaluation sequence. See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He summarily concluded at step three that plaintiff di d not meet any of the listings, and decided at step four that plaintiff could not r eturn to any of his past work. He then determined that plaintiff nevertheless retains the residual functional capacity (RFC) to perform a range of light work limited by c ertain physical restrictions but not by significant pain. He noted that plaintiff h ad not had the surgery recommended for him, despite receiving a $30,000 aw ard. Based on vocational-8-

testimony, he concluded that plaintiff is not disab led. The Appeals Council denied review, making the ALJ’s decision the Commis sioner’s final decision. Plaintiff then brought this suit. Like the ALJ, th e magistrate judge also noted that plaintiff had not undergone surgery, des pite his $30,000 award. He found that plaintiff’s allegations of error were wi thout merit. The district court adopted the magistrate judge’s recommendation, withonly a minor modification. We review the Commissioner’s decision on the whole record to determine only whether the factual findings are supported by substantial evidence and the correct legal standards were applied. See Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not re weigh the evidence or substitute our judgment for that of the agency. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). Plaintiff contends he meets listing 1.05C, which co vers “[o]ther vertebrogenic disorders (e.g., herniated nucleus puplosus, 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. subpt. P, app. 1, § 1.05C. Under 42 U.S.C. § 405(b)(1), the ALJ is “required t o discuss the evidence and explain why he found that appellant was not dis abled at step three.” Clifton-9-

v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996). Despite thi s requirement, the ALJ made only a summary conclusion that plaintiff w as not disabled under any of the listings. This court may not properly weigh th e evidence in the first instance.
Seeid. at 1009. In light of all the medical evidence rel evant to listing 1.05C, we must remand for the ALJ to perform the required ana lysis. If plaintiff otherwise meets the listing, he cannotbe precluded from receiving benefits because he did not have the surg ery his doctors recommended. This court assesses a claimant’s failure to pursue treatment under a four-part test: (1) whether the treatment would have restored the c laimant’s ability to work; (2) whether the treatment was prescribed; (3) wheth er the treatment was refused; and (4) whether the excuse was justified. See Weakley v. Heckler , 795 F.2d 64, 65-66 (10th Cir. 1986). The only evidence in the r ecord relative to the outcome of the surgery is that “no guarantees were given wh atsoever” about it. Appellant’s App., Vol. II at 148. In fact, plainti ff was warned that the result could range anywhere from improvement to quadripleg ia. See id. at 149. Moreover, the only evidence in the record relative to plaintiff’s failure to have the surgery shows that he did not so much refuse it, as it was refused to him when he told his doctors he could not afford it. See id. at 162. The ALJ did not ask plaintiff how much the surgery would cost or why hi s $30,000 settlement was not enough to cover it. See id. at 55. These are questions the ALJ plainly should-10-

have asked to fulfill his heightened duty of inquiry toward this unrepresented claimant. See Thompson v. Sullivan , 987 F.2d 1482, 1492 (10th Cir. 1993). Nevertheless, the record, as developed, provides no basis for a finding that plaintiff had enough money but still chose not to h ave the recommended surgery. Because we remand for additional proceedings at ste p three, it is unnecessary to discuss plaintiff’s allegations of e rror at step five in detail. We would note, however, that findings as to the credib ility of allegations of pain should be closely linked to the evidence. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995); S.S.R. 96-7p, 1996 WL 374186, at *2. Hypothetical questions should “relate with precision all of a claimant’s i mpairments.” Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation o mitted). Finally, an ALJ may not substitute the conclusory and unsupport ed opinion of a treating physician that a claimant cannot work with the evenmore conclusory and unsupported opinion of an examining physician (let alone his own opinion) that the claimant can work.-11-

The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED, and the case is REMANDED withdirections for the district court to remand to the agency for further proceedings in accordance with this order and judgment.

Entered for the Court

Robert H. Henry Circuit Judge