* This order and judgment is not binding precedent, e xcept under the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 10 1997 

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

GLENDA G. KNIGHT,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-7037 (D.C. No. CV-96-18-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 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-

Claimant Glenda Knight appeals from the district co urt’s order affirming the Commissioner’s decision denying her applicationfor disability benefits and supplemental security income. Claimant alleged dis ability from July 1992 due to a back injury, pain in her knees and foot, c arpal tunnel syndrome, and hypertension. In a decision which became the final decision of the Secretary, the administrative law judge (ALJ) concluded that c laimant had severe impairments, but that her condition did not meet orequal the criteria of the listings in Appendix 1, Subpart P, Regulations No. 4. Determining claimant not disabled at step four of the five-step sequential p rocess, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), the ALJ conc luded that claimant could return to her past relevant work as a department ma nager, cashier, and sales clerk for Wal-Mart, or as a home provider. On appeal, claimant asserts that (1) the ALJ erred in determining that claimant could return to her past relevant work wit hout making the appropriate findings; (2) the ALJ failed to give the proper con sideration and weight to the opinions of claimant’s treating physicians; and (3) the ALJ’s credibility determination was not based on substantial evidence

. We have jurisdiction over this appeal pursuant to 4 2 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the Secretary’s decision to determine whether her factual findings are supported by substantial evide nce in the record viewed as a-3-

whole and whether she applied the correct legal sta ndards. See Andrade v. Secretary of Health & Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is such relevant evidence as areasonable mind might accept as adequate to support a conclusion. See Castellano v. Secretary of Health &
Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994) (citations an d quotation omitted). “In addition to a lack of substantial ev idence, the Secretary’s failure to apply the correct legal standards, or to show us that she has done so, are also grounds for reversal.” Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). Because we agree that the ALJ failed to make the ne cessary findings regarding the requirements of claimant’s past relevant work, and in addition, failed to give the proper weight and consideration to the opinions of claimant’s treating physicians, we reverse and remand for further proce edings. When determining disability at step four of the seq uential analysis, the ALJ must first assess claimant’s residual functional capacity (RFC) and then determine whether claimant can perform her past relevant workin light of the limitations found. See id. at 1023-25 (discussing the three phases of step fo ur in detail). Here, the ALJ determined that claimant could stand and/or walk and/or sit six hours in an eight-hour work day, lift twenty pounds occasionally and ten pounds frequently, and occasionally stoop, squat, kneel, c rouch, and crawl. See Appellant’s App. Vol. II at 17.-4-

At the second phase of the step-four analysis, the ALJ must develop the record with “‘factual information’” regarding the a ctual work demands of the claimant’s past relevant work, and whether, given t he claimant’s physical and/or mental limitations, the claimant can meet those dem ands. See Winfrey , 92 F.3d at 1024 (quoting SSR 82-62, Soc. Sec. Rep. Serv. Ru lings 1975-1982, at 812). Here, the ALJ merely stated that the work activitie s of claimant’s past relevant work were not precluded by the limitations stated. The ALJ made no findings regarding the actual work-activity demands of claim ant’s past relevant work and how claimant’s impairments would relate to those de mands. Because we cannot reweigh the evidence, see Castellano , 26 F.3d at 1028, or make factual determinations on behalf of the ALJ, and because th e ALJ’s lack of specific findings here leaves us nothing to review, see Winfrey , 92 F.3d at 1025, we must reverse and remand for further proceedings. Having determined the need for a remand, we now con sider claimant’s challenges to the first phase of the step-four anal ysis, determination of claimant’s RFC, and whether further correction on remand is ne eded. Claimant alleges that the ALJ failed to consider or give the proper weight to the opinions of her treating physicians. We agree. In June 1979, claimant had surgical repairs of the bilateral chronic subluxating patellae of both knees by Dr. George W. Carlson, an orthopedic-5-

surgeon. When as late as 1986, claimant continued to have pain in her right knee, Dr. Carlson determined that a joint replacement wou ld be the only effective treatment available. In July 1992, claimant sustained a back injury in awork-related accident at Wal-Mart. Dr. Carlson diagnosed a herniated dis c at L5-S1. At the recommendation of Dr. Nathan Bradley, a consultativ e orthopedic surgeon, claimant decided against surgery and entered a workhardening program in Tulsa in February 1993. In her report, the physical ther apist in Tulsa stated that claimant had attempted to relieve her pain through physical therapy, exercises, electrical stimulation, and a TENS unit, all withou t success. She reported that although claimant had a prescription for Darvocet, it did not help much. She had also tried muscle relaxers, but gave up due to stom ach irritation. Relying on an intake interview, a job analysis, and a series of p erformance tests, the physical therapist suggested work hardening with the goal th at claimant could return to work for Wal-Mart, but in a different position “sin ce her previous job as Department Manager required a lot of lifting, carry ing, pushing and pulling.” Appellant’s App. Vol. II at 146. Following her return from two weeks of work hardeni ng in Tulsa, claimant experienced a failed work attempt, and finally, on September 30, 1993, when she had not significantly improved, Dr. Bradley perform ed a L5-S1 laminotomy and-6-

diskectomy, left, and a L5-S1 TSRH instrumentation and fusion on claimant’s back. Because claimant’s continuing knee problems were exacerbated by her back rehabilitation regime, in February 1994, Dr. B radley reported that claimant was limited in her ability to work and remained temporarily totally disabled. He referred her to Dr. David A. Flesher for evaluationand treatment of her knees. Dr. Flesher agreed that claimant’s back rehabilitat ion program was aggravating her knees. He concluded that claimant had “patellofemoral arthritis of longstanding,” and absent a patellectomy in the event her symptoms worsened, there was no surgical solution to her knee pain. I d. at 210. He also opined that a patellectomy “would probably aggravate her spine problem at the present time.” Id. Dr. Flesher recommended medication and a change i n her back rehabilitation
program. In March 1994, claimant was evaluated by Dr. John W . Ellis for continued pain in her right foot, the result of a stress frac ture which had been treated by Dr. Carlson in 1991. Dr. Ellis opined that claiman t would need treatment for early arthritis and swelling in the foot and sugges ted she not do a job where prolonged standing or a lot of walking are required . He computed an eighteen percent total permanent partial impairment as a res ult of claimant’s right foot problem.-7-

In April 1994, plaintiff was diagnosed by Dr. James P. Metcalf with carpal tunnel syndrome in both hands and wrists. He recom mended a complete workup on her hands and opined that she was temporarily to tally disabled. Claimant’s surgery on her right hand, performed on September 1 2, 1994, by Dr. Carlos A. Garcia-Moral, was successful in that claimant exper ienced a lessening of the symptoms. At the time of the ALJ’s decision, she w as awaiting surgery on the left hand. In April 1994, Dr. Bradley reported that claimant’s back problem was still not improving. In an October 27, 1994 letter to cl aimant’s attorney, Dr. Bradley stated that claimant was “markedly limited in activ ity in that she can sit, stand, or walk for only about thirty minutes at a time and requires frequent changes of position to allow her to get along with her pain.” Id. at 233. He concluded that her back and leg pain in combination with her hand pain and numbness and her knee problems render her “significantly disabled.” Id. He further opined that claimant “is not a candidate to be gainfully employ ed at this time and has not been since September 1992.” Id. He expressed uncertainty as to when and if claimant would be able to return to work. In determining that claimant was not disabled and c apable of returning to her past relevant work, the ALJ stated that “the ev idence here shows that there would be no reason she could not return to the kindof work she had done in the-8-

past doing sales clerk work, cashier’s work, department manager or doing clerical light duties.” Id. at 17. As the recitation of the medical evidence above establishes, this statement completely disregards the opinions of her treating physicians. The ALJ states that “claimant does tak e some pain medication which appears to control her pain,” and “noted that [clai mant] has had treatment other than medication for the relief of pain all of which are shown by the records as being successful.” Id. He does not, however, support these statements wi th any medical evidence in the record. In fact, the recor d establishes that claimant had tried numerous approaches to attempt to control herpain, including a TENS unit, all without success. The ALJ did not mention or discuss Dr. Flesher’s op inion regarding the severity of claimant’s knee impairment, or Dr. Elli s’ opinion that the arthritis in claimant’s foot precluded her from doing a job requ iring prolonged standing or a lot of walking. In discussing claimant’s carpal tunnel syndrome, the ALJ stated that “no EMG or nerve conduction studies had been p erformed.” Id. at 15. This statement is included in a two-page August 4, 1994 report of Dr. Garcia-Moral in which he recommended that these studies be perfo rmed. A September 6, 1994 report in which Dr. Garcia-Moral stated that the re sults of the “EMG and nerve conduction velocity studies” showed “changes that w ere consistent with carpal tunnel syndrome,” id. at 221, was not mentioned or discussed by the ALJ.1 At this point we note that apparently at the reques t of the Secretary,

claimant was examined by Dr. M. Young Stokes, III, who rendered an opinion included in the record. Any mention of this opinio n is also absent from the ALJ’s decision. -9- The ALJ is required to “evaluate every medical opin ion” he receives, 20 C.F.R. § 404.1527(d), and to “consider all relev ant medical evidence of record in reaching a conclusion as to disability,” Baker v . Bowen , 886 F.2d 289, 291 (10th Cir. 1989). A treating physician’s opinion about the nature and severity of a claimant’s impairment will be given controlling w eight if it is supported by clinical and laboratory diagnostic techniques and i s not inconsistent with other substantial evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Castellano , 26 F.3d at 1029.. Anything less is error which this court has censured on numerous occasions. See e.g. , Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289-90 (10th Cir. 1995); Frey v.
Bowen , 816 F.2d 508, 513-15 (10th Cir. 1987). The glaring omission in the ALJ’s decision is any d iscussion of the opinion of Dr. Bradley, claimant’s orthopedic surgeon. Dr. Bradley had been treating claimant since shortly after her back injury in 199 2. He is a specialist in the area in which he was rendering his opinion, and his opin ion is consistent with every other physician either treating or examining claima nt, and is consistent with claimant’s reports of her symptoms. 1-10-

Accordingly, the ALJ’s disregard of the opinions of claimant’s treating physicians is a legal error which must be correctedon remand. In addition, we note that the ALJ’s disregard of the medical eviden ce in this case also affected his evaluation of claimant’s credibility regarding her subjective complaints of pain,

see Winfrey , 92 F.3d at 1021. This will also require reevaluation upon remand. Upon remand we do not dictate any result. Our remand “simply assures that the correct legal standards are invoked in reaching a d ecision based on the facts of this case.” Huston v. Bowen , 838 F.2d 1125, 1132 (10th Cir. 1988). REVERSED and REMANDED to the district court with di rections to remand the case to the agency for further proceedin gs consistent with this order and judgment. Entered for the Court

Bobby R. Baldock Circuit Judge