                     UNITED STATES COURT OF APPEALS
Filed 10/28/96
                            FOR THE TENTH CIRCUIT



    RONNIE M. SUTTERFIELD,

               Plaintiff-Appellant,

    v.                                                 No. 96-7025
                                                  (D.C. No. CV-95-15-S)
    SHIRLEY S. CHATER, Commissioner                    (E.D. Okla.)
    of Social Security Administration, *

               Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, *** District
Judge.


*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S.
Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.
**
      This order and judgment is not binding precedent, except under the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.
***
      Honorable G. Thomas Van Bebber, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Claimant Ronnie Sutterfield appeals the district court’s affirmance of the

decision by the Secretary of Health and Human Services denying his application

for social security disability benefits. Because the record does not contain

substantial evidence to support the Secretary’s decision that claimant can perform

the full range of sedentary work, we reverse and remand for further proceedings.

      On May 22, 1993, claimant was involved in a car accident resulting in a

compression fracture of his L3 vertebra. After a three-day hospital stay, claimant

was released, and was seen by orthopedist Sauer four times over the next four

months. Dr. Sauer treated claimant with a corset, pain medication, and exercises,

restricted claimant’s lifting to no more than twenty-five pounds, and noted that

the compression fracture was healing in position. Based on claimant’s complaints

of radiating pain, Dr. Sauer ordered an MRI, which revealed disc bulging with

“possible” impression on the nerve root. R. II at 83. Dr. Sauer’s records note

that claimant’s right hip pain appeared to increase with weight bearing on the


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right foot, but that there was “no significant problem with the left lower extremity

except when sitting for long periods of time.” Id. at 86. After reviewing the

MRI, Dr. Sauer recommended abdominal and lumbar strengthening exercises, and

advised claimant that he needed to start using over-the-counter analgesics rather

than prescription painkillers. Claimant’s last visit to Dr. Sauer was on

September 8, 1993, with no record of medical treatment after that date.

      At a hearing before an administrative law judge (ALJ), claimant and his

father testified that claimant’s back pain limited his activities significantly,

stating that he spent up to eighty percent of his time in bed, id. at 96; that he

could not lift anything heavier than a newspaper, id. at 95; that he could not stand

longer than six minutes or walk more than four minutes, and could not sit very

long, id. at 95-96; that stooping, bending, pushing, pulling, and riding in a car

aggravated his pain, id. at 96-97; that the pain caused nausea and affected his

ability to concentrate, id. at 97; that he took both prescription and over-the-

counter pain medication, id. at 92; and that he used a cane and a back brace

regularly, id. at 98. Claimant also testified that he had recently seen his family

physician for pain, and that he did not return to Dr. Sauer because he owed him

too much money. Id. at 93.

      The ALJ found that claimant showed a complete inability to perform

substantial gainful activity for a time, but that he failed to show his disabling


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condition lasted, or was expected to last, more than twelve months. The ALJ

concluded that although claimant could not return to his former work, he had

regained the ability to perform the full range of sedentary work within twelve

months of his accident. The Appeals Council denied review, making the ALJ’s

determination the final decision of the Secretary. The district court affirmed, and

this appeal followed.

      We review the Secretary’s decision to determine whether her factual

findings are supported by substantial evidence and whether correct legal standards

were applied. Castellano v. Secretary 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.’” Richardson

v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)). We may “neither reweigh the evidence nor substitute

our judgment” for that of the Secretary. Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991).

      Claimant argues that substantial evidence does not support the conclusion

that he can perform sedentary work. We agree. Once claimant showed that he

could not return to his former employment, the burden shifted to the Secretary to

show that claimant retained the residual functional capacity to perform other

work. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).


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Although the ALJ found that the Secretary met this burden, by showing that

claimant could perform the full range of sedentary work, we see no basis in the

record upon which this finding could be made. Other than the testimony of

claimant and his father, there is no evidence regarding claimant’s ability to

perform the exertional requirements of sedentary work, except for Dr. Sauer’s

opinion that claimant could lift up to twenty-five pounds. Instead, the ALJ relied

on the fact that claimant discontinued treatment in September 1993 to support his

conclusion that claimant’s condition had improved sufficiently to permit

sedentary work.

      “The absence of evidence is not evidence.” Thompson, 987 F.2d at 1491.

Here, as in Thompson, claimant testified that he discontinued treatment for

financial reasons. Also as in Thompson, the ALJ failed to order a consultative

examination to determine claimant’s capabilities. Further, although claimant

testified that he had recently seen a family physician, no effort was made to

obtain this medical record. Because the ALJ’s findings regarding claimant’s

residual functional capacity are not supported by substantial evidence, which he

had the power to obtain, this case must be remanded for further proceedings. See

id. at 1491-92; see also Ragland v. Shalala, 992 F.2d 1056, 1058-60 (10th Cir.

1993)(holding ALJ’s finding that claimant could perform sedentary work

unsupported, when records did not show ability to sit for prolonged periods,


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former medical records not obtained, and failure to seek treatment due to financial

inability); Baker v. Bowen, 886 F.2d 289, 292 (10th Cir. 1989)(holding ALJ’s

reliance on dearth of objective medical evidence erroneous when such evidence

was within his power to obtain).

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

Oklahoma is REVERSED and REMANDED for further proceedings.



                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




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