                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 26 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CAROL A. RUTHERFORD,

                Plaintiff-Appellant,

    v.                                                   No. 98-5190
                                                    (D.C. No. 97-CV-528-J)
    KENNETH S. APFEL, Commissioner,                       (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , McKAY , and MURPHY , 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(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      This order and judgment is not binding precedent, except under the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.
      Plaintiff-appellant Carol Rutherford appeals from an order of the district

court affirming the Commissioner’s decision denying her application for Social

Security disability benefits. Appellant filed for these benefits in July 1994. She

alleged disability based on arthritis, bursitis, degenerative bone disease, and

depression. The agency denied her application initially and on reconsideration.

      On December 4, 1995, appellant received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that appellant retained the

residual functional capacity (RFC) to perform light work, restricted by her limited

ability to read, write and use numbers, and her need to change positions

periodically during the work day. He found that she could not return to her past

relevant work, but that there were a significant number of other jobs which she

could perform in the national or regional economy. The ALJ concluded that

appellant was not disabled within the meaning of the Social Security Act. The

Appeals Council denied review, making the ALJ’s decision the Commissioner’s

final decision.

      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. See Andrade v. Secretary of Health &

Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to


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support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)

(quotations omitted).

      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. See id. at 751 and n.2.

If the claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains sufficient RFC to

perform work in the national economy, given her age, education and work

experience. See id. at 751.

      Appellant raises two issues in this appeal. First, she argues that the ALJ

failed to evaluate properly the evidence of her physical impairments and to

consider the vocational impact of those impairments at step five of the sequential

evaluation. Second, she argues that the ALJ failed to show that she could

perform a significant number of jobs at step five because the hypothetical

question posed to the vocational expert (VE) did not accurately reflect her

impairments.

      1. Evaluation of physical impairments at step five

      Appellant argues that the ALJ’s finding that she can perform light work on

a sustained basis is not supported by substantial evidence. She claims the ALJ


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made his step five finding of disability on what appears to be an absence of

evidence. We agree. Although the x-ray evidence and a letter from her treating

physician, Dr. Heuttner, clearly show that appellant has a severe impairment

(arthritis of the cervical spine), there is no medical evidence at all concerning

how this impairment affects appellant’s ability to work. In particular, it is unclear

from the medical evidence how her back problems affect appellant’s ability to sit,

stand, walk, bend, or carry objects.

      Appellant testified at the hearing that she can lift her purse, which weighs

thirteen pounds, and walk a short distance, but that she could not stand long

enough to do light work or sit long enough to do sedentary work. The ALJ

concluded, without support from the medical evidence, that appellant could do

light work, which requires standing or walking for up to six hours out of an eight

hour day and the occasional ability to lift twenty pounds.

      At step five, it is the agency’s burden to show through medical evidence

that the claimant can work at a level lower than her past relevant work. See

Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993). Where the ALJ has

no evidence upon which to make a finding as to the appellant’s RFC, he should

exercise his discretionary power to order a consultative examination of the

appellant. See id.




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      The ALJ was fully aware that the record was undeveloped. At the hearing,

he complained that the record contained reports from doctors “who have indicated

several things. They haven’t really – none of them have – their reports are not

very explicit. . . . No one has actually taken the time to put down what the

problems this lady is having . . . and sort of just give me an understanding of what

problems and perhaps even limitations she might be having.” Appellant’s App.,

Vol. II at 60 (emphasis added). The ALJ expressed concern that the medical

records showed “a lot of loose ends,” and that he “just [didn’t] know the extent of

the problems.” Id. at 62. He stated that if he could not obtain a supplemental

report from appellant’s treating physician, Dr. Hess, that he would probably order

some consultative examinations. At the end of the hearing, the ALJ affirmatively

stated that if Dr. Hess did not cooperate, “then we’ll just use a consultative

examination.” Id. at 77.

      There is no updated statement from Dr. Hess in the record. 2 Nor is there

any record of any consultative examination. We therefore find it appropriate to

reverse and remand to allow the ALJ to obtain sufficient medical evidence from

which he can determine appellant’s RFC in a manner which is supported by

substantial evidence.


2
       In his letter to the Appeals Council, appellant’s attorney represented that
Dr. Hess had refused to fill out the appropriate paperwork because he did not
“make those types of reports.” Appellant’s App., Vol. II at 268.

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      Alternatively, appellant argues that the record is sufficiently developed to

make an RFC determination, but not the one the ALJ made. She asserts that the

findings of her treating physician, Dr. Huettner, demonstrate that she cannot do

light work. She argues that the ALJ should have given controlling weight to

Dr. Heuttner’s findings and found her disabled.

      Dr. Heuttner did not express an opinion that appellant was disabled or that

she was limited to certain types of work. He simply reported his findings

concerning her back pain.   In a brief letter submitted after the hearing and made

part of the administrative record, Dr. Heuttner stated that appellant had

degenerative joint disease and degenerative cervical disk disease. He noted that

on her office visit with him on December 8, 1995, she had “considerable

tenderness and limitation of motion in the cervical and lumbar spine.” Id. at 264.

Dr. Heuttner further noted that she complained of pain in other joints, including

her knees, feet and shoulders, but that her range of motion in those joints was

well maintained.

      The Commissioner gives controlling weight to the opinion of a treating

physician concerning the nature and severity of a claimant’s impairment, if that

opinion is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other record evidence. See

20 C.F.R. § 404.1527(d)(2); Castellano v. Secretary of Health & Human Servs.,


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26 F.3d 1027, 1029 (10th Cir. 1994). In this case, however, the Commissioner

did not find Dr. Heuttner’s findings consistent with the other medical evidence;

instead, he found them partially contradicted by the x-ray evidence, which showed

only evidence of arthritis in appellant’s cervical spine.

      Even if the x-rays and Dr. Heuttner’s findings are considered together, they

do not supply an adequate medical basis for making an RFC determination. This

does not mean that appellant did not meet her burden of providing medical

evidence of disability, however. Appellant satisfied her burden to ensure that the

record contains sufficient evidence to suggest a reasonable possibility that her

impairment was severe, thus triggering the ALJ’s duty to order a consultative

examination if necessary or helpful to resolve the issue of impairment. See

Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). Remand is the

appropriate course.

      Appellant next contends that the ALJ failed to closely and affirmatively

link his findings concerning her pain to substantial evidence, see Kepler v.

Chater, 68 F.3d 387, 391 (10th Cir. 1995), and that he failed to consider factors

relevant to the credibility of her pain testimony which were supported by the

record. Appellant fails to disclose what factors she contends the ALJ should

have, but did not consider. A review of the ALJ’s decision shows that he

adequately considered the factors relating to the pain analysis and that his


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analysis is consistent with his other findings. The pain analysis may be affected

on remand, however, by the further evidence which we require the ALJ to obtain. 3

      2. Hypothetical question posed to vocational expert

      Appellant contends that the ALJ’s hypothetical question posed to the

vocational expert did not include all of her limitations and that the expert’s

testimony therefore did not provide substantial evidence for the ALJ’s decision.

The ALJ’s hypothetical was generally consistent with the impairments which he

accepted, but it suffers from the same lack of evidence which tainted his decision

concerning her RFC. In the event that the additional evidence which we require

the ALJ to obtain on remand results in a change in his RFC determination, the

ALJ should also obtain further testimony from a vocational expert which

accurately reflects appellant’s limitations.

      3. Disposition

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

of Oklahoma is REVERSED, and the case is REMANDED with instructions to




3
       Appellant also urges that the ALJ improperly shifted the burden of proof on
the existence of alternative jobs. Appellant failed to raise this argument in the
district court. Accordingly, we do not consider it on appeal. See Crow v.
Shalala, 40 F.3d 323, 324 (10th Cir. 1994).

                                         -8-
remand the case to the Commissioner for further proceedings in accordance with

this order and judgment.



                                                 Entered for the Court



                                                 Michael R. Murphy
                                                 Circuit Judge




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