UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SHANNON WILLIAMS, 

 Plaintiff - Appellant, 

v. 

Nancy A. Berryhill, Acting Commissioner 

of Social Security,*

 Defendant - Appellee. 

No. 16-1137 

(D.C. No. 1:14-CV-01984-NYW) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT**

_________________________________ 

Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.***

_________________________________ 

Shannon Williams appeals from a judgment of the district court affirming the 

Commissioner’s denial of her application for Social Security disability benefits and 

supplemental security income benefits. She alleged disability in August 2010, at age 

 *

 Pursuant to Fed. R. App. P. 43(c)(2), Carolyn Colvin is substituted for Nancy 

A. Berryhill as Acting Commissioner of Social Security. ** After examining the briefs and appellate record, this panel has determined 

unanimously to honor 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 

submitted without oral argument. This order and judgment is not binding precedent, 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. *** Judge Hartz concurs in the Order and Judgment, Judge O’Brien concurs in 

the result only. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 17, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

28, based on multiple impairments including seizures, back problems, and bipolar 

disorder. The administrative law judge (ALJ) found that Ms. Williams could perform

sedentary work with occasional bending, squatting, and use of foot/leg controls, 

provided she was not exposed to unprotected heights, dangerous machinery, or other 

workplace hazards. A vocational expert testified that Ms. Williams could perform 

several jobs that exist in significant numbers in the national economy. Following the 

ALJ’s decision that Ms. Williams was not disabled, the Appeals Council denied her 

request for review. She then filed a complaint in the district court, which affirmed 

the Commissioner’s decision. 

On appeal, Ms. Williams argues the ALJ: (1) failed to consider at step three 

whether her conversion disorder met Listing 12.07 (somatoform disorders); (2) failed 

to adequately develop the record; (3) made a residual functional capacity (RFC) 

finding regarding her physical limitations at step four that is not supported by 

substantial evidence; and (4) failed at step four to properly assess her mental 

limitations, including her conversion disorder, in formulating her RFC. Exercising 

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

STANDARD OF REVIEW 

“We review the ALJ’s decision to determine whether the factual findings are 

supported by substantial evidence in the record and whether the correct legal 

standards were applied.” Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006) 

(internal quotation marks omitted). “Substantial evidence is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion. However, 
3 

a decision is not based on substantial evidence if it is overwhelmed by other evidence 

in the record or if there is a mere scintilla of evidence supporting it.” Id. (citation 

and internal quotation marks omitted). 

LISTING 12.07 

 We agree with Ms. Williams that the ALJ misapplied the law when he failed to 

consider whether her conversion disorder met or equaled Listing 12.07. “At the third 

step [of the five-step evaluation process], we [will] consider the medical severity of 

your impairments(s). If you have an impairment(s) that meets or equals one of our 

listings in appendix I of this subpart and meets the duration requirement, we will find 

that you are disabled.” 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also 

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (“Step three asks 

whether any medically severe impairment, alone or in combination with other 

impairments, is equivalent to any of a number of listed impairments so severe as to 

preclude substantial gainful employment.” (internal quotation marks omitted)). 

 Beginning in mid-2010 and continuing through mid-2012, Ms. Williams had 

numerous episodes involving what she described as seizures. She went to the 

emergency room on no fewer than twelve occasions complaining of seizure-like 

incidents. When no testing (diagnostic or laboratory) or neurological examinations 

disclosed any physiological basis for the seizures, Ms. Williams was diagnosed with 

conversion disorder. 

Conversion disorder is a somatoform disorder. It involves symptoms or 

deficits affecting voluntary motor or sensory functions that suggest a neurologic or 
4 

other general medical condition. But following a thorough evaluation, which 

includes a neurological examination and appropriate laboratory and radiographic 

diagnostic tests, no neurologic explanation exists for the symptoms, or the 

examination findings are inconsistent with the complaint. One type of conversion 

disorder involves seizures or convulsions. See American Psychiatric Association, 

Diagnostic and Statistical Manual of Mental Disorders (Text Revision 4th ed. 2000) 

at 492-98 (DSM-IV-TR). 

Listing 12.07 recognizes conversion disorder as a disorder that may be per se 

disabling. In relevant part, it provides: 

12.07 Somatoform Disorders: Physical symptoms for which there are no 

demonstrable organic findings or known physiological mechanisms. 

The required level of severity for these disorders is met when the 

requirements in both A and B are satisfied. 

 A. Medically documented by evidence of one of the following: . . . 

 2. Persistent nonorganic disturbance of one of the following: . . . 

 e. Movement and its control (e.g., coordination, disturbance, 

psychogenic seizures, akinesia, [or] dyskinesia) 

AND 

 B. Resulting in at least two of the following: 

 1. Marked restriction of activities of daily living; or 

 2. Marked difficulties in maintaining concentration, persistence, or 

pace; or 

 3. Marked difficulties in maintaining social functioning; or 

 4. Repeated episodes of decompensation, each of extended duration. 

20 C.F.R. § 404, Subpt. P, App. I, § 12.07. 
5 

The Commissioner argues that the ALJ did not need to discuss Listing 12.07 

because “no mental health professional affirmatively diagnosed her with a 

somatoform disorder.” Aplee. Br. at 22. We disagree. For example, in August 2010, 

an emergency room physician stated “there is a good chance [her seizures] could be a 

variant of pseudoseizure,” Aplt. App., Vol. 3 at 579, and following a consultation 

with a neurologist, Ms. Williams was diagnosed with conversion disorder, see id. at 

592-93. In November 2010, an emergency room physician noted that Ms. Williams 

“presents with known psychiatric type condition,” and acknowledged the previous 

diagnoses of conversion disorder. Id. at 628. And in November 2011, yet another 

emergency room physician noted that her neurologist had made a diagnosis of 

conversion disorder. Id. at 721-22. 

Further, the Commissioner argues that even if Ms. Williams was diagnosed 

with conversion disorder, she did not meet the B criteria of Listing 12.07. But the 

only evidence in the record is an assessment from a state agency psychologist who 

considered whether she met the criteria for Listing 12.04 (affective disorders), 

see id., Vol. 1 at 111, and the only Listings the ALJ considered were Listings 1.00 

(musculoskeletal disorders) and Listing 11.00 (neurological disorders), id. at 55. 

We acknowledge that the failure to mention a particular Listing is not always 

fatal. For example, in Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008), we 

held that “[t]he ALJ’s [failure to identify the relevant Listing or discuss the evidence] 

would be harmless [error] if findings he made elsewhere conclusively negated [the] 

claim under [the] Listing [that was not considered].” But there are no findings that 
6 

conclusively negated Ms. Williams’s claim under Listing 12.07, and we must reverse 

the district court’s affirmance of the ALJ’s decision and remand to the Commissioner 

for further proceedings at step three. 

FAILURE TO DEVELOP THE RECORD 

We also agree with Ms. Williams that the ALJ should have ordered 

consultative examinations. The Commissioner “may purchase a consultative 

examination . . . when the evidence as a whole is insufficient to allow us to make a 

determination or decision on your claim.” 20 C.F.R. § 404.1519a(b), 20 C.F.R. 

§ 416.919a(b). Clearly, the existing evidence is not sufficient to make a 

determination of Ms. Williams’s claim. For example, there is no medical evidence 

about her conversion disorder, including its severity and how it affects her ability to 

function. 

 The Commissioner urges us to overlook whether the examinations are needed 

because Ms. Williams’s lawyer failed to raise the issue with the ALJ, citing Hawkins 

v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (“In the absence of . . . a request by 

counsel, we will not impose a duty on the ALJ to order a consultative examination 

unless the need for one is clearly established in the record.”)). However, there is a 

clear need for the examinations. Where an ALJ has “no evidence upon which to 

make a finding as to RFC, [he] should . . . exercise his discretionary power to order a 

consultative examination . . . to determine [the claimant’s] capabilities.” Thompson 

v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993). The ALJ should order 

consultative examinations to properly consider the diagnosed conversion disorder at 
7 

step three, and, if the analysis continues beyond step three on remand, consultative 

examinations necessary for a proper RFC should also be ordered. 

 Our reversal and remand is at step three. Nonetheless, we address 

Ms. Williams’s arguments regarding her RFC should the ALJ’s analysis on remand 

proceed beyond step three and he is required to evaluate her RFC at step four. 

PHYSICAL RFC 

Ms. Williams argues that the ALJ’s findings regarding her physical RFC, and 

in particular her capacity to sit without considerable pain, were not supported by 

substantial evidence. We agree. 

Ms. Williams testified that she can stand “about 25 to 30 minutes,” and sit for 

about “25 minutes,” without pain. Aplt. App., Vol. 1 at 78.1

 But the ALJ rejected 

her testimony in favor of the assessment of a state agency disability examiner as 

support for his finding that Ms. Williams could perform sedentary work: “The State 

agency disability examiner stated [that Ms. Williams] could sit for more than six 

hours of an eight hour day and stand/walk for more than six hours of an eight hour 

day.” Id. at 57. He gave “[s]ome weight to this assessment.” Id. 

According to Ms. Williams, the ALJ improperly relied on the state agency 

assessment because it was performed by a non-acceptable source—“Carlos Clarke, 

SDM.” Id. at 114. The Commissioner argues that it does not matter whether 

Mr. Clarke is an acceptable source, because there is “substantial evidence in the 

 1

 Sedentary work typically involves a good deal of sitting. See 20 C.F.R. 

§§ 404.1567(a), 416.967(a). 
8 

record, apart from [Mr. Clarke’s] opinion, [that] supports the ALJ’s finding that 

Williams could perform sedentary . . . work.” Aplee. Br. at 26. But the 

Commissioner fails to cite any evidence that supports Mr. Clarke’s opinion, and we 

have found none.2

The issue therefore is whether Mr. Clarke’s opinion was sufficient to support 

the ALJ’s physical RFC assessment. It was not. The Commissioner “may use 

evidence from ‘other sources,’ as defined in 20 C.F.R. §§ 404.1513(d) and 

416.913(d), to show the severity of the individual’s impairment(s) and how it affects 

the individual’s ability to function.” SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 

2006). State disability examiners like Mr. Clarke, however, are not among the “other 

sources” that can provide such evidence.3

 Therefore, the ALJ’s physical RFC 

assessment was not supported by substantial evidence and should the ALJ’s 

assessment on remand proceed beyond step three, a consultative examination may be 

needed to properly determine Ms. Williams’s RFC. 

MENTAL RFC 

 2

 The Commissioner also argues that Ms. Williams forfeited any argument 

about the ALJ’s reliance solely on Mr. Clarke’s assessment because she failed to 

raise it in the district court. However, we construe her argument that the physical 

RFC finding was not supported by substantial evidence, to include Mr. Clarke’s 

assessment, whether or not it was specifically mentioned. 

3

 These sources include medical sources such as nurse practitioners, 

physician’s assistants, naturopaths, chiropractors, audiologists, and therapists; 

education personnel; public and private social welfare agency personnel; and 

spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, 

and clergy. See 20 C.F.R. §§ 404.1513(d), 416.913(d). 
9 

With regard to her mental impairments, Ms. Williams argues that even if her 

conversion disorder does not meet the criteria of Listing 12.07, the ALJ misapplied 

the law because he failed to consider this impairment in formulating her RFC at step 

four. Again, we agree, and if the ALJ’s analysis on remand proceeds beyond step 

three, he will need to consider Ms. Williams’s conversion disorder in his RFC 

determination. “[I]n assessing the claimant’s RFC, the ALJ must consider the 

combined effect of all of the claimant’s medically determinable impairments, 

whether severe or not severe.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) 

citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). The ALJ’s failure to consider 

Ms. William’s conversion disorder, “singly and in combination with her other 

impairments, requires that we reverse.” Salazar, 468 F.3d at 622. 

As to her other mental impairments, Ms. Williams argues that the ALJ also 

failed to adequately consider and discuss them as part of his RFC assessment. At 

step two, the ALJ summarized Ms. Williams’s mental health records and concluded 

that she did not have a severe mental impairment. See Aplt. App., Vol. 1 at 54. But 

“the Commissioner’s procedures do not permit the ALJ to simply rely on his finding 

of non-severity as a substitute for a proper RFC analysis.” Wells, 727 F.3d at 1065. 

Instead, “the mental RFC assessment used at steps 4 and 5 of the sequential 

evaluation process requires a more detailed assessment by itemizing various 

functions contained in the broad categories found in paragraphs B and C of the adult 

mental disorders listings in 12.00 Listing of Impairments and summarized on the 

Psychiatric Review Technique Form.” Id. (brackets omitted). Last, “and most 
10 

importantly, the ALJ’s RFC assessment must include a narrative discussion 

describing how the evidence supports each conclusion, citing specific medical 

facts . . . and nonmedical facts.” Id. (internal quotation marks omitted). 

The ALJ’s step four analysis states: 

The State agency physician completed an assessment of the claimant to 

ascertain whether or not the claimant’s mental impairment(s) met the 

requirements for a Listing level impairment. The [psychologist] assessed 

mild restrictions in the claimant’s activities of daily living; mild restrictions 

in the ability to maintain social functioning; and mild limitations 

maintaining concentration, persistence or pace. The claimant had had no 

periods of decompensation, each of extended duration. This is consistent 

with the records as a whole and is given significant weight. 

Aplt. App., Vol. 1 at 57. 

What is missing from the assessment is any discussion of the evidence that 

supports the conclusion. As such the ALJ’s conclusions are not supported by 

substantial evidence. 

The ALJ did not consider Ms. Williams’s conversion disorder and otherwise 

failed to properly assess her mental RFC. If on remand the ALJ has reason to reach 

step four, this error should not be repeated. 

The judgment of the district court is reversed at step three and the case is 

remanded with instructions to remand to the Commissioner for additional 

proceedings consistent with this Order and Judgment. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge