                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    SHARON K. GREEN,

                Plaintiff-Appellant,

    v.                                                   No. 02-6290
                                                   (D.C. No. 01-CV-1150-M)
    JO ANNE B. BARNHART,                                 (W.D. Okla.)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , HENRY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
       Sharon K. Green appeals from      the district court’s order affirming the

Commissioner of Social Security’s decision to deny Mrs. Green’s application for

disability insurance benefits. Mrs. Green based her application on recurrent chest

pains and shortness of breath, back pain, knee pain, headaches, and asthma. The

application was denied on initial consideration and after a    de novo hearing held

before an administrative law judge (ALJ). Mrs. Green appealed the ruling to the

district court, which referred the matter to a magistrate judge. The district court

adopted the magistrate judge’s eighteen-page report and recommendation and

affirmed the Commissioner’s ruling. Our jurisdiction arises under 28 U.S.C.

§ 1291 and 42 U.S.C. § 405(g), and we reverse and remand.


                                             I.

       We review the Commissioner’s decision (here expressed as the ruling of the

ALJ, see Hargis v. Sullivan , 945 F.2d 1482, 1484 (10th Cir. 1991)), to determine

whether the ALJ’s factual findings are supported by substantial evidence in light

of the entire record and to determine whether the correct legal standards were

applied. See Castellano v. Sec’y of Health & Human Servs.       , 26 F.3d 1027, 1028

(10th Cir. 1994). “Substantial evidence is such relevant evidence as a reasonable

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

But “[e]vidence is not substantial if it is overwhelmed by other

evidence–particularly certain types of evidence (e.g., that offered by treating

                                            -2-
physicians) or if it really constitutes not evidence but mere conclusion.”   Frey v.

Bowen , 816 F.2d 508, 512 (10th Cir. 1987) (quotations omitted).


                                             II.

       The procedural and factual history of this case is well documented in the

findings and recommendations of the magistrate judge filed February 6, 2001, and

we need summarize it here only briefly. After reviewing Mrs. Green’s medical

records and hearing her testimony and that of a vocational expert, the ALJ

determined that Mrs. Green’s complaints of disabling back pain were not credible

and concluded at step four of the sequential evaluation process that Mrs. Green

could perform her past work as a loan processor and bank teller. See Williams v.

Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (setting forth the sequential

evaluation process).

       In the alternative, the ALJ concluded at step five that Mrs. Green retained

the residual functioning capacity to perform either a limited range of light work

or sedentary work, and was not disabled.


                                            III.

       Mrs. Green raises five issues on appeal. Both in her appeal to the district

court and on appeal to this court she contends that the ALJ (1) did not properly

consider her treating physician’s opinion, (2) ignored her obesity limitations, and


                                             -3-
(3) failed to properly evaluate the medical record when determining her residual

functional capacity. She also asserts that the ALJ erred (4) in determining that

her impairments did not meet any listing contained in Appendix 1 to Subpart P of

Part 404 of the social security regulations.         See 20 C.F.R. 404.1520(d) & Pt. 404,

Subpt. P, App. 1. Finally, Mrs. Green contends that the ALJ erred (5) by applying

the vocational guidelines located in Appendix 2 to Subpart P of Part 404 of the

regulations to determine at step five whether there is work that she can perform

that exists in the economy in significant numbers. The magistrate judge carefully

considered and addressed most of Mrs. Green’s arguments, and nothing in

Mrs. Green’s appellate brief demonstrates error in the magistrate judge’s stated

reasoning. We therefore reject issues (2)-(5),         supra , as a basis for reversal for

substantially the same reasons stated in the magistrate judge’s report and

recommendations dated August 15, 2002.

       We note, however, that the magistrate judge did not address Mrs. Green’s

argument that the ALJ failed to properly consider Dr. Rhinehart’s reports and

opinions.   1
                See Goatcher v. United States Dep’t of Health & Human Servs.          ,


1
      While the magistrate judge’s report does discuss Dr. Rhinehart’s records
and reports, we note that the magistrate judge mistakenly believed that an RFC
Assessment form was subsequently prepared by Dr. Rhinehart, when in fact the
form was prepared by Dr. Woodcock, the State’s medical consultant. This form
expressed the opinion that Mrs. Green could stand/walk six hours in an eight-hour
day and sit about six hours in an eight-hour day. Thus the magistrate judge may
                                                                     (continued...)

                                               -4-
52 F.3d 288, 289-90 (10th Cir. 1995) (holding that an ALJ commits reversible

error if the ALJ fails to provide specific reasons for rejecting opinions and

assessments of a claimant’s treating physician). Dr. Rhinehart is a neurosurgeon

who treated Mrs. Green in October and December 1999. After examining her and

fully reviewing Mrs. Green’s medical history and records, Dr. Rhinehart

diagnosed “right trochanteric bursitis,” for which he gave her a local steroidal

injection for pain, and “lumbar radiculopathy with some stenosis,” for which he

ordered a series of epidural injections for lower-back pain management.

Aplt. App. at 262-65.

       On December 23, 1999, Dr. Rhinehart reported that the epidural injections

gave “transient relief but perhaps some 30-40% overall improvement,” but stated

that her chronic lumbar degenerative disease and hip problems were not improved

sufficiently “for her to return to full gainful employment” despite the injections

for pain relief.   Id. Dr. Rhinehart stated that Mrs. Green’s degenerative pathology

was not “curable” and recommended she take narcotics two to three times per day

to help her be more functional.   Id.




1
 (...continued)
have believed that the January 2000 RFC assessment superceded Dr. Rhinehart’s
December 1999 opinion that Mrs. Green could not return to full-time gainful
employment.

                                           -5-
       The ALJ did not discuss these findings or specifically discuss

Dr. Rhinehart’s reports or opinion that Mrs. Green could not return to work.

The ALJ also did not discuss a January 2000 report from Dr. Rosson, a consulting

physician, stating that Mrs. Green had a limited range of motion and muscle

spasms in her lower back, decreased muscle strength in her right leg, positive

straight leg raising on both legs, evidence of “persistent discogenic injury and

chronic musculoligamentous injury, with residual neurosensory injury,” and

a permanent partial impairment of 31% to the whole person due to the lower back

problems. Aplee. App. at 261-63. Nor did the ALJ refer to or discuss the

subsequent records from treating physician Dr. Webb, a family physician who

treated Mrs. Green for chronic low back pain twice, on August 28, 2000 and

September 26, 2000.    See Aplt. App. at 32-33 (ALJ decision); Aplee. App. at 3

(listing medical exhibits by care giver).

       On September 26, 2000, Dr. Webb noted that Mrs. Green had weakness

in both legs and decreased flexion and extension in her lumbar spine, and

prescribed more pain and arthritis medication for her.   Id. at 296. Instead of

discussing the most recent reports specifically related to treatment of

Mrs. Green’s degenerative lumbar disc disease, the ALJ relied on (1) hospital

records and reports by Dr. McCown related to Mrs. Green’s 1998 knee surgery

(Ex. 3F, 10F); (2) a November 1999 report from Dr. Marshall, the physician who


                                            -6-
performed the epidural injections and stated that the first one had given

Mrs. Green some temporary relief (Ex. 9F); (3) medical records from 1998-1999

and a December 1999 statement by Dr. Forren, one of Mrs. Green’s family

doctors who performed an RFC assessment and referred Mrs. Green to

Dr. Rhinehart for her back problems (Ex. 14F, 18F); (4) medical records from

February–May 2000 from Dr. Lynn, Mrs. Green’s subsequent family physician

(Ex. 15F); and (5) a report by treating cardiologist, Dr. Scott, dated September 26,

2000, which stated that Mrs. Green had no evidence of muscle spasms (Ex. 19F),

to conclude that Mrs. Green had “experienced good response to [conservative]

treatments for her lumbar problems.” Aplt. App. at 32. The ALJ relied on three

of these same exhibits (10F, 18F, and 19F) to conclude that Mrs. Green “retains

the residual functional capacity to perform a slightly reduced range of light

exertional range of work.”   Id. at 33. By failing to discuss and expressly consider

the treating specialist’s opinion and the treating physicians’ records most relevant

to the degenerative spine disease and to weigh them against other medical

evidence, the ALJ committed reversible error.    See Goatcher , 52 F.3d at 289-90.

      We reject appellee’s arguments that Dr. Rhinehart’s opinion that

Mrs. Green could not return to gainful employment is contradicted by his own

treatment records. His opinion is also supported by the MRIs and the records and

findings of other treating physicians. We further reject appellee’s suggestion that


                                          -7-
during the time period between February 2000 and August 2000, Mrs. Green did

not complain of low back pain. The medical records from that period reveal

a diagnosis of osteoarthritis and “lumbar spondylosis with chronic pain,” with her

treating physicians instructing her to continue her medications, including narcotic

pain medication.   See, e.g. , Aplee. App. at 282, 285.

      Based on our whole record review and the ALJ’s failure to give specific,

legitimate reasons for rejecting the treating neurosurgeon’s opinion of disability,

we conclude that the Commissioner did not apply correct legal standards and that

the Commissioner’s decision is not supported by substantial evidence.

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

Oklahoma is REVERSED and the case is REMANDED for additional proceedings

consistent with this order.


                                                      Entered for the Court



                                                      Stephanie K. Seymour
                                                      Circuit Judge




                                          -8-
