                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 14, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    GORDON L. GEORGE,

                Plaintiff-Appellant,

    v.                                                 No. 11-6108
                                                (D.C. No. 5:06-CV-00960-C)
    MICHAEL J. ASTRUE, Commissioner                    (W.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



         After developing pain in his neck and shoulders, Gordon George was

diagnosed with cancer in 2003 and underwent surgery and radiotherapy. During

his recovery, he continued to experience pain spanning from his neck to his

shoulder and arm. Separately, a November 2004 MRI revealed significant issues

with his back and in December Mr. George underwent spinal surgery.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In light of these dual developments, Mr. George applied for disability and

supplemental security income benefits. After many and various hearings, an

administrative law judge (ALJ) concluded that for the period June 1, 2003,

through July 31, 2005, Mr. George’s impairments satisfied the requirements of

Listings 1.04 (spine disorders), 13.02 (soft-tissue tumors of the head and neck),

and 13.03 (skin cancers). Accordingly, the ALJ declared that Mr. George was

disabled during that period. But the ALJ further found that Mr. George’s

condition improved dramatically over time and that by August 1, 2005, he no

longer met any disability listing. Concluding that Mr. George had the residual

functional capacity (“RFC”) to perform light work, except for repetitive overhead

reaching with his right arm, the ALJ further concluded — with input from a

vocational expert — that jobs existed in the national economy Mr. George could

perform. The Appeals Council denied review, making the ALJ’s decision the

final agency determination, and the district court affirmed.

      Before this court, Mr. George pursues several challenges to the ALJ’s

determination that he suffered no legally cognizable disability after August 1,

2005. We reject all those challenges, and affirm for substantially the reasons

given by the district court, with one exception. Only that exception merits

discussion here.

      The ALJ erred by failing to consider whether, after August 1, 2005,

Mr. George suffered from a mental disability. The record shows Mr. George has

                                        -2-
a substantial documented and diagnosed history of depression and anxiety and has

been repeatedly prescribed medications commonly used to treat those conditions.

See Aplt. App. Vol. 2 at 66, 69, 115, 128, 135, 161, 162, 177, 187-88, 248, 257-

59, 268; id. Vol. 3 at 308, 313, 323, 327, 334-35, 338, 340, 349, 360. Yet,

despite this evidence suggesting a medically determinable mental impairment, see

20 C.F.R. § 404.1508; Lamb v. Barnhart, 85 F. App’x 52, 57-58 (10th Cir. 2003)

(sufficient evidence to establish medically determinable mental impairment where

claimant was diagnosed with depression and treated with drugs), the ALJ made no

mention of it. Neither did the ALJ apply the so-called “special technique”

specified by regulation for evaluating the severity of a mental impairment, see

20 C.F.R. §§ 404.1520a, 416.920a. Nor did he provide in the RFC for any

work-related limitations due to mental impairments (or, conversely, state that

there were none). This was error as a matter of law. See Hill v. Sullivan,

924 F.2d 972, 974 (10th Cir. 1991) (“Since the record contained evidence of a

mental impairment that allegedly prevented claimant from working, the Secretary

was required to follow the procedure for evaluating the potential mental

impairment set forth in his regulations and to document the procedure

accordingly.”) (citing 20 C.F.R. § 404.1520a).

      Relying on Armijo v. Astrue, 385 F. App’x 789, 791-93 (10th Cir. 2010),

the district court suggested that the ALJ’s error was harmless. But in Armijo the

ALJ explicitly considered the claimant’s depression and concluded that because it

                                        -3-
was controlled by medication, it imposed no more than a minimal effect on the

claimant’s ability to work. Id. at 790. The error — reaching this conclusion

without applying the regulatorily specified “special technique,” id. at 791 — was

harmless because the ALJ issued a clear factual finding that the condition had

only a minimal effect on the claimant’s ability to work and there was nothing in

the record to undermine this conclusion. Id. at 792. Simply put, the ALJ’s

factual finding was supported by substantial evidence, and his failure to use one

particular method for arriving at that finding instead of another was harmless

because the result wouldn’t (couldn’t) change as a matter of law.

      In our case, by contrast, the ALJ has not made any factual findings — one

way or the other — about the existence, severity, or functional limitations, if any,

imposed by Mr. George’s mental condition. It’s entirely possible the ALJ on

remand will find Mr. George’s mental health issues have no impact on his ability

to work. But the problem here is that — unlike in Armijo — we just don’t know

what the ALJ thinks on that score because he hasn’t made any factual findings

about it. Neither may we, as a reviewing court, guess at what might’ve been in

the ALJ’s head when it comes to the facts. He’s the fact-finder, not us. “[A]s a

court acting within the confines of its administrative review authority, we are

empowered only to review the ALJ’s decision for substantial evidence and,

accordingly, we are not in a position to draw factual conclusions on behalf of the

ALJ.” Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (quotations

                                         -4-
omitted). In Armijo, the ALJ told us what he thought the facts were, his findings

were supported by substantial evidence, and we simply had to decide whether

applying the correct legal test (the “special technique”) changed the outcome,

really just a legal question. Here, we have no factual findings to work with in the

first place, and that’s a very different sort of problem for a reviewing court with

no business in the fact-finding line of work.

      The district court’s decision is reversed and remanded with instructions to

remand to the Commissioner for further proceedings consistent with this Order

and Judgment.


                                                     Entered for the Court



                                                     Neil M. Gorsuch
                                                     Circuit Judge




                                         -5-
