                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 22 1998
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    NICHOLAS T. ARAGON, JR.,

                Plaintiff-Appellant,

    v.                                                    No. 98-2097
                                                 (D.C. No. CIV-97-605-BB/LCS)
    KENNETH S. APFEL, Commissioner,                         (D. N.M.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before PORFILIO, BARRETT,              and KELLY , Circuit Judges.



         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. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff appeals from a district court order affirming the Commissioner’s

finding of nondisability and consequent denial of social security benefits. The

Administrative Law Judge (ALJ) determined that exertional impairments limited

plaintiff to a “light” residual functional capacity (RFC); that plaintiff therefore

could not return to his past relevant work; that, given the absence of significant

nonexertional impairments, plaintiff could perform a full range of light work; and

that, therefore, the pertinent medical-vocational guideline, or grid, dictated a

finding of nondisability. Plaintiff submitted additional evidence of disability to

the Appeals Council, which summarily rejected the new evidence and denied

review, leaving the ALJ’s decision as the final disposition in the case. We review

the decision to determine whether it is legally correct and supported by substantial

evidence. See Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). As

explained below, we reverse and remand for further proceedings.

      Plaintiff filed for Supplemental Security Income benefits in August 1994,

alleging disability based on (1) partially controlled but worsening paroxysmal

atrial tachycardia (PAT), (2) residual complications from a back injury suffered in

1980, and (3) hearing loss and fluid drainage caused by a gunshot to the right side

of his head in 1971. The ALJ held the first two conditions limited plaintiff to a

light RFC, which was not further restricted by significant nonexertional

limitations associated with any of these conditions (though the ALJ also noted,


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without explanation, that plaintiff could not work around excessive noise,

unprotected heights, or moving machinery,         see App. II at 17). We have nothing

of substance to add with respect to the assessment of plaintiff’s back and head

injuries, which is consistent with the relevant evidence and controlling law.

Rather, our objection to the Commissioner’s decision relates to the analysis of the

PAT condition, particularly in light of the new evidence submitted to the Appeals

Council.

      It is clear from the ALJ’s decision and the record that plaintiff’s primary

impairment is the PAT, which has both exertional and nonexertional dimensions.

See id. at 13 (ALJ’s decision noting plaintiff “attributes his inability to work

mostly to frequent episodes of heart palpitations (occurring allegedly up to four

days a week and lasting as long as 10 hours at a time) and also dizziness and

nausea”); see also, e.g. , id. at 222 (physician’s opinion of disability “due to

recurrent rapid palpitations, that are associated with nausea and dizziness, with

fatigue lasting for hours afterward”). For the reasons that follow, we hold that

(1) the ALJ’s limited acknowledgment of the exertional dimension of the PAT

(reflected in the RFC for light work), while possibly justifiable on the initial

hearing record, was undercut by evidence submitted on administrative appeal, and

(2) the ALJ’s disregard of the nonexertional dimension of the condition was error

from the outset, compounded by the Appeals Council’s decision.


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                                  Exertional Limitation

       Discussing plaintiff’s PAT, the ALJ concluded that “[e]xtensive treatment

notes provided by Kenneth Yamamoto, M.D., [plaintiff’s] treating physician . . .

do not reveal any significant cardiac findings that support the degree of symptoms

and functional limitations alleged by [plaintiff].”     Id. at 13-14. This conclusion

was based on three observations, none of which support it.

       The ALJ noted that “cardiac examinations have indicated a normal heart

rate and heart sounds.”     Id. at 14. However, plaintiff’s symptoms would not be

seen on cardiac examination unless, instead of seeking therapeutic rest, he

actually came in for an examination       during an episode. In fact, he did that on at

least one occasion, when an EKG confirmed his complaint.          See id. at 118.

       The ALJ also stated that “objective testing, such as electrocardiograms,

echocardiograms, and chest x-rays, has been essentially unremarkable,        except for

atrial tachycardia [i.e., PAT]    .” Id. at 14 (emphasis added). This comment is

clearly not adverse to plaintiff, as the consistently diagnosed and rigorously

treated PAT is precisely what his physicians identify as the underlying, operative

condition.

       Finally, the ALJ indicated that “[s]uch findings [i.e., the objective testing

noted above] led Dr. Yamamoto to conclude that [plaintiff] should avoid ‘heavy

lifting’ but could return to ‘light’ work.”     Id. at 14. We have searched the record


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and have not located the statement about returning to light work (the ALJ

indiscriminately and unhelpfully references three entire exhibits here, including

long compilations of treatment notes). There is a statement that plaintiff “is

unemployable in his usual line of work as a laborer,”   id. at 124, from which the

ALJ might have inferred the unstated suggestion that perhaps plaintiff could

handle another, less rigorous (equals “light”?) line of work. But that inference,

and the speculative equation to light work it requires, is clearly too slender a

thread on which to base any definitive conclusions about RFC.

      Notwithstanding the above objections to the ALJ’s stated rationale, we do

not think the medical record available to the ALJ would necessarily have ruled

out an RFC for light work. The notes and reports submitted prior to the ALJ’s

decision generally do not touch on the relationship between physical exertion and

plaintiff’s palpitation episodes. Thus, it is not clear whether light--or any other

level of--work would increase their frequency or intensity. Once an episode is

triggered, however, the resultant fatigue and consequent need for rest would

presumably impact any exertional activity.

      In any event, just days after the ALJ issued his decision, plaintiff’s treating

physician added the following unqualified statement of disability to the medical

record: “[The plaintiff] is unable to work in any capacity at this time due to

recurrent rapid palpitations, that are associated with nausea and dizziness, with


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fatigue lasting for hours afterward; these have been occurring daily.”      Id. at 222

(June 3, 1996 letter); see also id. at 232 (November 18, 1996 note reiterating same

conclusion). Because this evidence was provided to the Appeals Council, it is

part of the administrative record for the decision under review and may warrant

reversal or remand if it is (1) new, (2) material, and (3) related to the period on or

before the ALJ’s decision.     See O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir.

1994). The evidence qualifies as new and temporally relevant, so the only

question is its materiality.

       Given that it comes from the same (and only) physician previously relied on

by the ALJ for his RFC assessment of plaintiff’s PAT condition, this new

evidence would appear quite material. While these more recent opinions from Dr.

Yamamoto are somewhat conclusory, just like the earlier less definitive reports

the ALJ deemed sufficient to rely on, they are based on many previous months’

treatment notes.   See generally App. II at 205, 223-26 (notes provided

post-hearing, dated October 1995 through November 1996, reflecting increased

frequency and severity of palpitation episodes and various medicinal measures

taken, with uneven success, in response thereto). And, the Appeals Council,

which simply “concluded [without explanation] that . . . the additional evidence

provides [no] basis for changing the [ALJ’s] decision,”      id. at 4, clearly did not

give the “specific, legitimate reasons” necessary to justify rejection of a treating


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physician’s opinion, Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996) (further

quotation omitted).

       Thus, we therefore cannot affirm the Appeals Council’s reflexive

confirmation of the ALJ’s determination--in the face of contrary new evidence

from the same medical authority the ALJ relied on--that the plaintiff had the

exertional capacity to do light work. Further, there is a related but even more

serious problem here concerning the nonexertional dimension of plaintiff’s PAT

condition.


                        Nonexertional Limitation (Grid Use)

       As previously noted, plaintiff’s palpitation episodes involve symptoms such

as dizziness, nausea, and generalized fatigue, requiring responsive therapeutic

rest, all of which could interfere with work at any exertional level. But, by

focusing solely on the RFC question, the ALJ’s analysis effectively ignored the

nonexertional limitations associated with the plaintiff’s condition.   Cf. Evans v.

Chater , 55 F.3d 530, 532 n.2 (10th Cir. 1995) (reversing denial of benefits where

impairment had both exertional and nonexertional consequences and ALJ focused

on only one). All we have to review in this regard is the ALJ’s unexplained and

unsubstantiated conclusion, stated apropos of nothing in particular prior to his

invocation of the grids, that plaintiff “has no non-exertional limitations that



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significantly compromise the range of work he is capable of performing.”     1
                                                                                 App.

II at 16. Even assuming the ALJ had the PAT in mind when making this

statement (which is not evident from the context), there simply is no basis in the

present record for the conclusion that plaintiff’s consistently reported and

rigorously treated palpitation episodes, striking (with variability) as often as

several times a week and for as long as several hours, would not significantly

affect his ability to work.

       Thus, even on the initial hearing record, the ALJ’s indirect rejection of the

nonexertional effects of plaintiff’s PAT condition, and hence his reliance on the

grid for light work, is problematic.   See generally Thompson v. Sullivan , 987 F.2d

1482, 1488 (10th Cir. 1993) (stating familiar rule that resort to grids is

inappropriate when nonexertional impairments limit claimant’s ability to work at

given RFC level). Considering the post-hearing notes indicating a deterioration

of plaintiff’s PAT condition, and the treating physician’s unequivocal opinion

about its disabling effect, the Appeals Council’s summary approval of the ALJ’s

decision is plainly insupportable.




1
      In his concluding summary of findings, the ALJ did recognize--contrary to
the above quote and again without explanation--some unspecified nonexertional
impairment precluding work “at unprotected heights, or around moving
machinery,” App. II at 17, for which dizziness caused by PAT seems the only
possible source.

                                          -8-
      In sum, while the extant record does not necessarily settle the ultimate

question of disability, it does fatally undermine the existing denial of benefits

based on the grids. We therefore reverse and remand the case for further

proceedings. In particular, the Commissioner should give explicit, responsive

consideration to the post-hearing evidence relating to PAT and, if necessary,

obtain testimony from a vocational expert about the occupational consequences of

plaintiff’s palpitation episodes, addressing both their exertional and nonexertional

impact.

      The judgment of the United States District Court for the District of New

Mexico is REVERSED, and the cause is REMANDED to the district court with

directions to remand, in turn, to the Commissioner for further proceedings

consistent with this order and judgment.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




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