After examining the briefs and appellate record, this panel has determined *

unanimously to grant 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

ordered 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. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3. 

F I LED

United States Court of Appeals

Tenth Circuit

May 17, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ALTA L. KLITZ,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART,

Commissioner of the Social Security

Administration,

Defendant-Appellee.

No. 05-7112

(D.C. No. CIV-04-067-SH)

(E.D. Okla.)

ORDER AND JUDGMENT

*

Before BRISCOE, McKAY, and BRORBY, Circuit Judges.

Alta Klitz appeals from the district court’s order and judgment affirming

the final decision of the Commissioner of Social Security denying her

Supplemental Security Income benefits (SSI) under Title XVI of the Social
-2-

Security Act. We have jurisdiction over this appeal pursuant to 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291, and we REVERSE and REMAND.

Ms. Klitz protectively filed an application for SSI on June 14, 2002,

alleging disability on the basis of asthma, chronic obstructive pulmonary disorder,

and arthritis. Her application was denied initially and upon reconsideration. She

requested and received a hearing before an administrative law judge (ALJ) who

found that Ms. Klitz suffers from severe chronic obstructive lung disease but the

impairment is not severe enough to meet or equal one of the impairments listed in

20 C.F.R., Part 404, Subpart P, Appendix 1. 

Because the ALJ found that Ms. Klitz has no relevant past work, he

proceeded to step five of the sequential evaluation process, see Williams v.

Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step sequential

process for evaluating claims for disability benefits), and found that Ms. Klitz

retains the following residual functional capacity (RFC): “lift and/or carry 10

pounds occasionally and 5 pounds frequently; stand and/or walk 2 out of 8 hours;

and sit 6 out of 8 hours; but she cannot work in environments where she would be

exposed to dust.” R. at 16. At the hearing, the ALJ asked a vocational expert

(VE) whether there were any jobs a person could perform if the person had no

past relevant work but could perform sedentary work in environments that did not

expose the person to respiratory irritants such as dust. The VE testified that such

a person could perform a variety of unskilled labor occupations: lamp shade
Although the ALJ posed two other, more restrictive hypotheticals to the 1

VE, neither of them are relevant to this appeal.

-3-

assembler, clip fastener, suture winder, gold burnisher, and food and beverage

order clerk. Id. at 140-41. Based on the VE’s testimony, the ALJ found 1

Ms. Klitz not disabled at step five. The Appeals Council denied review, making

the ALJ’s decision the Commissioner’s final decision. Ms. Klitz filed a

complaint with the district court, and by the parties’ consent, the matter was

submitted to a magistrate judge who affirmed the Commissioner’s decision. 

This appeal followed.

“We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Doyal v. Barnhart, 331 F.3d 758, 760

(10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id. (quotation omitted). 

“[B]ecause our review is based on the record taken as a whole, we will

meticulously examine the record in order to determine if the evidence supporting

the agency’s decision is substantial, taking ‘into account whatever in the record

fairly detracts from its weight.’” Hamlin v. Barnhart, 365 F.3d 1208, 1214

(10th Cir. 2004) (quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.

1994)). “We may neither reweigh the evidence nor substitute our discretion for

that of the [Commissioner].” Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
A nebulizer is “[a] device used to reduce liquid medication to extremely 2

fine cloudlike particles” and is “useful in delivering medication to deeper parts of

the respiratory tract.” Stedman’s Medical Dictionary 1184 (27th ed. 2000). 

Ms. Klitz uses her nebulizer to administer albuterol sulfate. R. at 87.

-4-

Ms. Klitz raises only one issue on appeal, that the ALJ’s RFC finding is not

supported by substantial evidence because it lacks a requirement that she use a

home nebulizer periodically during the work day. Ms. Klitz testified that she 2

used the nebulizer two or three days a week and two times per day on those days. 

R. at 130. She stated that the process took fifteen to twenty-five minutes. Id.

Progress notes in the record reflect that Ms. Klitz was advised that she should

obtain a nebulizer because it was “much better in delivering meds than the MDI,”

id. at 88. Although unclear from the record, an “MDI” apparently is a type of

inhaler. The progress notes also indicate that she was to use the nebulizer at

home and the inhaler only when she was away from home. Id. at 86, 87. 

In making an RFC finding when, as here, a medically determinable

impairment imposes environmental restrictions, an ALJ must consider any

resulting limitations and restrictions that may affect other work-related abilities

and reduce a claimant’s ability to work. See 20 C.F.R. § 416.945(d). Although

the ALJ acknowledged Ms. Klitz’s use of the nebulizer, he never addressed any

effect it might have on her ability to work. The progress notes indicate that the

nebulizer was the preferred treatment at home and the inhaler was to be used only

when she was away from home. It does not necessarily follow that Ms. Klitz
-5-

could be away from home for a full work day without access to the nebulizer and

reliant only on the inhaler. 

On remand, the ALJ should develop certain details of Ms. Klitz’s use of her

home nebulizer. First, it is unclear whether her nebulizer is portable such that it

can be used away from the home. It appears that administering albuterol sulfate

with a nebulizer involves connecting the nebulizer to a compressor. See

Physicians’ Desk Reference 1225, 3069 (57th ed. 2003). The presence of a

compressor suggests that it may be impracticable for her to transport the device to

work. 

Second, it is unclear from the record whether Ms. Klitz’s need to use the

nebulizer twice a day on those days when she must use it occurs at random,

uncontrollable times, or whether she could use it before work, during established

breaks, or after work in order to treat her condition effectively. The fifteen to

twenty-five minute process of using the nebulizer one or two times a day on two

or three days a week may be disruptive of a normal work day and affect her

ability to perform the jobs the VE identified and on which the ALJ based his

decision. See Eback v. Chater, 94 F.3d 410, 411-12 (8th Cir. 1996) (discussing

how the particularities of a claimant’s need to use a nebulizer could affect the

ability to perform all the duties of a job).

For the foregoing reasons, we conclude that substantial evidence does not

support the ALJ’s RFC finding. The judgment of the district court is
-6-

REVERSED and the case is REMANDED to the district court with directions to

remand the case to the agency for further proceedings consistent with this order

and judgment.

Entered for the Court

Mary Beck Briscoe

Circuit Judge