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 Secur ity disability benefits and supplemental security in come benefits. She alleged disa bility in August 2010, at age

* Pursuant to Fed. R. App. P. 43(c)(2), Carolyn Colvin is substituted for Nancy A. Berryhill as Acting Commissione r of Social Security. ** After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 a nd 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 Court2 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 m achinery, or other workplace hazards. A vocationa l expert testified that Ms. Williams could perform several jobs that exist in significant numbe rs 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 compla int in the district c ourt, which affirmed the Commissioner’s decision. On appeal, Ms. Williams argues the ALJ: (1) failed to consid er at step three whether her conversion disorder met Listi ng 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 pr operly 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 dete rmine whether the factual findings are supported by substantial ev idence 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 omit ted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adeq uate to support a conc lusion. However,3 a decision is not based on substantial eviden ce if it is overwhelm ed 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 th e law when he failed to consider whether her conversio n disorder met or equaled Listing 12.07. “At the third step [of the five-step evalua tion process], we [will] consid er the medical severity of your impairments(s). If you have an impair ment(s) that meets or equals one of our listings in appendix I of this subpart and meets the durati on 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 im pairments so severe as to preclude substantial gainful employment.” (i nternal quotation ma rks omitted)). Beginning in mid-2010 and continuing through mid-2012, Ms. Williams had numerous episodes involving what she desc ribed 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 mo tor or sensory functions th at suggest a neurologic or4 other general medical condition. But following a thorough evaluation, which includes a neurological examination and appropriate laborator y and radiographic diagnostic tests, no neurol ogic 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 Ma nual of Mental Disorders (Text Revision 4th ed. 2000) at 492-98 (DSM-IV-TR). Listing 12.07 recognizes conversion disorder as a di sorder that may be per se disabling. In releva nt part, it provides: 12.07 Somatoform Disorders : Physical symptoms for which there are no demonstrable organic fi ndings or known physiological mechanisms. The required level of severity fo r these disorders is met when the requirements in both A and B are satisfied. A. Medically documented by evid ence of one of the following: . . . 2. Persistent nonorganic disturba nce of one of the following: . . . e. Movement and its control (e.g., coordination, disturbance, psychogenic seizures, akin esia, [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 main taining social functioning; or 4. Repeated episodes of decompensa tion, each of extended duration. 20 C.F.R. § 404, Subpt. P, App. I, § 12.07.5 The Commissioner argues that the ALJ di d not need to discuss Listing 12.07 because “no mental health professiona l 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 chan ce [her seizures] could be a variant of pseudoseizure,” Aplt. App., Vo l. 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 emergenc y 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 r ecord 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 Li sting 11.00 (neurological disorders), id . at 55. We acknowledge that the failure to men tion a particular Lis ting 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 [failu re to identify the relevant Li sting or discuss the evidence] would be harmless [error] if findings he ma de elsewhere conclusively negated [the] claim under [the] Listing [that was not cons idered].” But there are no findings that6 conclusively negated Ms. Wi lliams’s claim under Listing 12.07, and we must reverse the district court’s affirm ance of the ALJ’s decision a nd remand to the Commissioner for further proceedings at step three. FAILURE TO DEVELOP THE RECORD We also agree with Ms . Williams that the AL J should have ordered consultative examinations. The Commi ssioner “may purchase a consultative examination . . . when the evidence as a whol e is insufficient to allow us to make a determination or decision on your claim.” 20 C.F.R. § 404.15 19a(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 i ssue with the ALJ, citing Hawkins v. Chater , 113 F.3d 1162, 1168 (10th Cir. 1997) (“In the abse nce 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 clea rly 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 di scretionary power to order a consultative examination . . . to dete rmine [the claimant ’s] capabilities.” Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993). The ALJ should order consultative examinations to properly consid er the diagnosed conversion disorder at7 step three, and, if the an alysis 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 require d to evaluate her RFC at step four. PHYSICAL RFC Ms. Williams argues that the ALJ’s fi ndings 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 disa bility examiner as support for his finding that Ms. Williams could perform se dentary work: “The State agency disability exam iner stated [that Ms. Williams] could sit for more than six hours of an eight hour day a nd stand/walk for more than six hours of an eight hour day.” Id . at 57. He gave “[s]ome we ight to this assessment.” Id

. According to Ms. Williams , the ALJ improperly reli ed on the state agency assessment because it wa s 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, beca use there is “substantial evidence in the

1 Sedentary work typically i nvolves 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 th e ALJ’s finding that Williams could perform sedentary . . . wo rk.” 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 wh ether 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 de fined 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 232993 9, 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 suppor ted by substantial evid ence and should the ALJ’s assessment on remand proceed beyond step th ree, a consultative examination may be needed to properly determin e Ms. Williams’s RFC. MENTAL RFC

2 The Commissioner also argues that Ms. Williams forfeited any argument about the ALJ’s reliance sole ly on Mr. Clarke’s assessme nt because she failed to raise it in the district court. However, we construe he r argument that the physical RFC finding was not supported by substant ial evidence, to in clude Mr. Clarke’s assessment, whether or not it was specifically mentioned.

3 These sources include medical sour ces such as nurse practitioners, physician’s assistants, natu ropaths, chiropractors, audi ologists, and therapists; education personnel; public and private social welf are agency personnel; and spouses, parents and other caregivers, sib lings, 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 crite ria of Listing 12.07, the ALJ misapplied the law because he failed to c onsider this impairment in formulating her RFC at step four. Again, we agree, and if the AL J’s analysis on remand proceeds beyond step three, he will need to c onsider Ms. Williams’s conversion disorder in his RFC determination. “[I]n asse ssing 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 AL J’s failure to consider Ms. William’s conversion di sorder, “singly and in co mbination with her other impairments, requires that we reverse.” Salazar , 468 F.3d at 622. As to her other mental impairments, Ms. Williams argues th at 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 he alth records and concluded that she did not have a se vere mental impairment. See Aplt. App., Vol. 1 at 54. But “the Commissioner’s procedures do not perm it 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 us ed at steps 4 and 5 of the sequential evaluation process requires a more deta iled 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 Lis ting of Impairments and summarized on the Psychiatric Review Technique Form.” Id . (brackets omitted). Last, “and most10 importantly, the ALJ’s RFC assessment must include a narr ative 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 assessmen t of the claimant to ascertain whether or not the claima nt’s mental impairment(s) met the requirements for a Listing level impa irment. The [psychologist] assessed mild restrictions in the claimant’s activ ities of daily living; mild restrictions in the ability to mainta in social functioning ; and mild limitations maintaining concentration, persistence or pace. The claimant had had no periods of decompensation, each of exte nded 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 as sessment is any discussi on of the evidence that supports the conclusion. As such th e 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 sh ould not be repeated. The judgment of the district court is re versed at step thr ee and the case is remanded with instructions to rema nd to the Commissioner for additional proceedings consistent with this Order a nd Judgment.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge