                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                                 APR 22 2003
                             FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk


    DONA CLARK,

                Plaintiff-Appellant,

    v.                                                       No. 02-5093
                                                        (D.C. No. 01-CV-520-J)
    JO ANNE B. BARNHART,                                      (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT                *




Before LUCERO , McKAY , and BALDOCK , Circuit Judges.



         Plaintiff Dona Clark asserts she has been disabled since February 1998 due

to multiple sclerosis. Here, she appeals the district court’s decision     1
                                                                               upholding


*
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
       In the district court, the parties consented to have a magistrate judge decide
this case and waived their right to have the district court review any such
decision. 28 U.S.C. § 636(c)(3).
the Commissioner’s denying her disability benefits. The administrative law judge

(ALJ) determined, at step five of the relevant analysis, that Clark remains capable

of performing such sedentary jobs as clerical mailer and production assembly

worker. The Appeals Council then denied review, making the ALJ’s

determination the Commissioner’s final decision. Reviewing to determine

whether there is substantial evidence to support the ALJ’s decision and whether

the ALJ correctly applied the law,     see Grigsby v. Barnhart , 294 F.3d 1215, 1218

(10th Cir. 2002), we reverse that determination and remand this cause for the

Commissioner’s further consideration.

       No one disputes that Clark has met the first two steps of the five-step

disability analysis, see 20 C.F.R. § 404.1520. The ALJ found both that Clark has

not performed substantial gainful activity since February 1998 and that she

suffers from a severe impairment, multiple sclerosis. “At step three, [then,] the

ALJ [must] determine[] whether the claimant’s impairment is equivalent to one of

a number of listed impairments that the [Commissioner] acknowledges as so

severe as to preclude substantial gainful activity.”   Drapeau v. Massanari ,

255 F.3d 1211, 1212 (10th Cir. 2001) (quotation omitted). Clark asserts she met

her burden, see id. at 1213, by establishing that she satisfied the multiple sclerosis

listing, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.09. Although this listing




                                              2
provides three different means by which a claimant can establish that she is

disabled, Clark invokes only two of those three sections,       id. § 11.09(A) & (C).

       Listing 11.09(A) provides that a claimant suffering from multiple sclerosis

will be presumptively disabled if she suffers       “[s]ignificant and persistent

disorganization of motor function in two extremities, resulting in sustained

disturbance of gross and dexterous movements, or gait and station.” Id.

§ 11.04(B), incorporated into § 11.09(A). The ALJ found, however, that Clark’s

condition was not sufficiently severe to meet this listing, in light of her continued

ability to walk with a cane, drive long distances, and perform household chores.

Nonetheless, Clark asserts that the ALJ, in making this step-three determination,

should not have considered such nonmedical evidence.

       In making a step-three determination, the ALJ must rely on only medical

evidence, without considering vocational factors such as age, education and work

experience. 20 C.F.R. § 404.1520(d);      see also , Hargis v. Sullivan , 945 F.2d 1482,

1487 (10th Cir. 1991); Davidson v. Sec’y of Health & Human Servs.           , 912 F.2d

1246, 1253 (10th Cir. 1990) (addressing claim for widow’s disability benefits).

Nonetheless, the ALJ may properly consider the claimant’s residual functional

capacity (RFC) when making this medical determination under step three.             Id.

And, because a claimant’s RFC “consists of those activities that [she] can still

perform on a regular and continuing basis despite . . . her physical limitations,”


                                                3
White v. Barnhart , 287 F.3d 903, 906 n.2 (10th Cir. 2001), the ALJ did not err in

relying upon this evidence to make his step-three determination.

       Furthermore, substantial evidence supported the ALJ’s decision that Clark

did not meet Listing 11.09(A). And the ALJ provided a sufficient analysis

supporting that determination.       Cf. Drapeau , 255 F.3d at 1213 (holding ALJ had

failed to address properly whether claimant met listing);    Clifton v. Chater ,

79 F.3d 1007, 1009 (10th Cir. 1996) (same).

       Clark further faults the ALJ for failing even to consider whether she met

Listing 11.09(C). The multiple sclerosis listing, however, provides that the ALJ

should apply either § 11.09(A) or, instead, § 11.09(C), but not both. 20 C.F.R. Pt.

404, Subpt. P, App. 1, § 11.00(E).      “Paragraph C provides criteria for evaluating

the impairment of individuals who do not have muscle weakness or other

significant disorganization of motor function at rest, but who do develop muscle

weakness on activity as a result of fatigue.” Id. If, instead, “the disorganization

of motor function is present at rest, paragraph A must be used, taking into account

any further increase in muscle weakness resulting from activity.” Id. Clark has

never argued that § 11.09(A) does not apply to her case. In fact, Clark’s attorney

specifically asserted to the ALJ that Clark was disabled under § 11.09(A). (2 R.

at 169.) The ALJ, therefore, did not err in failing also to consider § 11.09(C). In

any event, the record does not support a finding that Clark has met Listing


                                              4
11.09(C). Cf. Barnett v. Apfel , 231 F.3d 687, 689 (10th Cir. 2000) (refusing to

disturb ALJ’s decision denying benefits, where claimant failed to direct court to

any evidence that ALJ disregarded that established his disability).

       Next, Clark challenges the ALJ’s determination that she retained sufficient

RFC to perform sedentary work, as further limited by her ability to lift only five

pounds occasionally and three pounds frequently. Substantial evidence supports

this determination as to Clark’s exertional limitations. Nonetheless, the ALJ also

had to consider any other limitations Clark may have, such as the chronic

disabling fatigue of which she complains. Objective medical evidence

established that Clark suffers from multiple sclerosis, which can reasonably be

expected to produce the fatigue Clark alleges.     See 20 C.F.R. § 404.1529(b);   see

also Young v. Apfel, 221 F.3d 1065, 1067 n.3 (8th Cir. 2000) (noting multiple

sclerosis’s symptoms “include muscle weakness, numbness, fatigue, loss of

balance, pain, and loss of bowel and bladder control”). Therefore, the ALJ should

have considered her subjective complaints of chronic fatigue in light of all of the

evidence. 20 C.F.R. § 404.1529(c).

       In this case, however, the ALJ never specifically considered Clark’s

allegations of fatigue at all. And, while the ALJ did discount Clark’s “allegations

of pain, and other limitations ,” (2 R. at 22) (emphasis added), here, that analysis

alone is inadequate to disregard her complaints of chronic disabling fatigue.     See ,


                                             5
e.g. , White , 287 F.3d at 909 (holding ALJ must give specific reasons why he

rejects claimant’s subjective pain complaints);   Kepler v. Chater , 68 F.3d 387, 391

(10th Cir. 1995) (noting administrative agencies have to give reasons for their

decisions) .

       Even if we could deem the ALJ’s passing reference to Clark’s “other

limitations” to have included her complaints of chronic fatigue in his credibility

analysis, the ALJ’s reasons for disregarding Clark’s subjective complaints are still

insufficient here to discount her allegations of fatigue.

       First, the ALJ rejected Clark’s subjective complaints of “other limitations”

based on “the objective findings, or the lack thereof, by treating and examining

physicians, the lack of medication for severe pain, the frequency of treatments by

physicians and the lack of discomfort shown by the claimant at the hearing.” (2

R. at 22.) This analysis is insufficient to discredit Clark’s complaint of disabling

chronic fatigue primarily because it focuses instead on pain. Two of the four

factors upon which the ALJ relied, Clark’s lack of any severe   pain medication and

her apparent comfort during the hearing, expressly focused on any pain

allegations and did not address her fatigue complaints.

       As for the ALJ’s other two factors, while Clark had not seen her treating

physician in the six months preceding her hearing, she had seen her treating

physicians over ten times in the year and a half before that. And, during these


                                             6
visits, she had complained of fatigue.     Cf. Barnett , 231 F.3d at 690 (upholding

ALJ’s discounting claimant’s pain allegations where, among other reasons,

claimant had not reported such complaints to treating physician, whom claimant

had not seen in nine months preceding hearing). Additionally, Clark testified that

she sought medical treatment only when her multiple sclerosis flared up. This,

however, is consistent with the episodic nature of her illness.   See Wilcox v.

Sullivan , 917 F.2d 272, 277 (6th Cir. 1990) (requiring ALJ to consider multiple

sclerosis’s episodic nature).

       Furthermore, in discounting Clark’s subjective complaints of pain and

“other limitations,” (2 R. at 22), the ALJ relied heavily on Clark’s testimony

concerning her daily activities, which    the ALJ deemed “fairly strong,” (id. at 23).

In fact, those daily activities, instead, support Clark’s allegations of disabling

fatigue. Although Clark did testify she was able to make her bed, this amounted

only to pulling up the comforter. And while she was able to shower and dress

herself, it would take her two hours to do so and she would have to rest during the

process. She could also dust and mop her floors, but only if she rested

periodically. And Clark testified she could do the laundry if her husband carried

the clothes to and from the laundromat. Clark did assert she remained able to

wash dishes and cook meals, and she could grocery shop if she leaned on a

grocery cart to move about the store. She exercised by doing leg lifts and


                                              7
stretches, but only because she could lie down while doing them. And she

attended church, went out socially with her husband once a week and listened to

music. By themselves, these activities would not support the ALJ’s discreditation

of Clark’s complaints of chronic and disabling fatigue. See Ragland v. Shalala,

992 F.2d 1056, 1060 (10th Cir. 1993). “The sporadic performance [of household

tasks or work] does not establish that a person is capable of engaging in

substantial gainful activity.” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th

Cir. 1993) (further quotation omitted; alteration in original). Neither would her

one-time drive from New Jersey to Oklahoma to attend her Social Security

hearing. See Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983).

      So, even if we could conclude that the ALJ’s brief reference to Clark’s

“other limitations” included her complaints of disabling chronic fatigue, the

record does not contain substantial evidence supporting the ALJ’s reasons for

rejecting those complaints.   See McGoffin v. Barnhart , 288 F.3d 1248, 1254 (10th

Cir. 2002) (holding ALJ’s credibility determination must be closely linked to

substantial evidence). Because the ALJ did not adequately consider Clark’s

complaints of chronic fatigue, therefore, we must reverse the Commissioner’s

decision denying disability benefits and remand this case for the Commissioner’s

further consideration. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000)




                                          8
(remanding where ALJ ignored claimant’s allegations of severe fatigue, weakness

and swelling, which her condition would reasonably be expected to produce).

       In addition, while the ALJ did, at step five, credit Clark’s testimony that

she could read very little, the ALJ did not further address her blurred vision and

diminished vision acuity. Yet her medical records clearly reflect diminished

visual acuity and include her consistent complaints of blurred vision.   Cf. Diaz v.

Sec’y of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990) (holding

ALJ had not erred in discounting claimant’s complaints of blurred vision where

there was no corroborative objective evidence).

       On remand, therefore, the Commissioner should consider whether Clark’s

complaints of chronic fatigue are credible. If so, the Commissioner should then

further consider the effect her chronic fatigue, as well as her blurred and

diminished vision, had on her ability to perform work activity. Finally, these

additional impairments, to the extent the Commissioner concludes they are

credible, must be reflected in any hypothetical question posed to the vocational




                                             9
expert. We, therefore, REVERSE and REMAND this case to the district court

with instructions to remand it to the Commissioner for her further consideration

consistent with this decision.



                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




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