                        UNITED STATES COURT OF APPEALS
Filed 4/30/96
                               FOR THE TENTH CIRCUIT




    NOAH GUINN,

                Plaintiff-Appellant,

    v.                                                         No. 95-7127
                                                           (D.C. No. CV-94-601)
    SHIRLEY S. CHATER, Commissioner of                         (E.D. Okla.)
    Social Security Administration,*

                Defendant-Appellee.




                               ORDER AND JUDGMENT**


Before BRORBY and BARRETT, Circuit Judges, and BRIMMER,*** 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       This order and judgment is not binding precedent, except under the doctrines of law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 Clarence A. Brimmer, District Judge, United States District Court for the
District of Wyoming, 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 Noah Guinn 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 Secretary's decision is not supported by substantial evidence and/or

legal error was committed, we reverse and remand for further proceedings.

       Claimant first received benefits in 1979 for a heart condition. After surgery, he was

determined not to be disabled, and benefits were discontinued in 1982.          In May 1989,

claimant again applied for benefits, alleging that he was unable to work because of his heart,

headaches, and seizures. After a hearing, an administrative law judge (ALJ) determined that

although claimant could not return to his former work, there existed a significant number of

jobs in the national economy which claimant could perform. The Appeals Council denied

review, and the case was appealed to the United States District Court for the Eastern District

of Oklahoma. In 1992, the case was remanded to the Social Security Administration to

identify its reasons for rejecting the opinion of claimant's treating physician and for further

consideration of the evidence.



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       On remand, a hearing was held before a different ALJ, who found claimant capable

of returning to his former work as a gravel crushing supervisor. The ALJ found that

claimant suffered from only one severe impairment -- his heart condition -- which did not

affect his ability to do the full range of light work. The ALJ rejected several of claimant's

allegations for lack of documentation in the record. Noting that claimant's headaches had

never been determined to be migraine in nature and that extensive laboratory tests had failed

to establish a seizure disorder, the ALJ found that "the claimant suffers from neither

headaches nor a seizure disorder which would affect his ability to engage in light work." R. I

at 563. The Appeals Council denied review, making the ALJ's decision the final decision of

the Secretary. The district court affirmed, and this appeal followed.

       We review the Secretary's decision to determine whether the 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 discretion for that of the Secretary. Casias v. Secretary of Health

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

       Claimant argues that the ALJ erred in disregarding treating physician Miller's opinion

that he is disabled. The ALJ rejected Dr. Miller's opinion because the record did not show


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a sufficient physician-patient relationship to establish Dr. Miller as a treating physician, and

because Dr. Miller's opinion was not supported by objective medical evidence.

       Social security regulations define a treating physician as a

       physician . . . who has or has had an ongoing treatment relationship with
       [claimant]. . . . [A]n ongoing treatment relationship [exists] when the medical
       evidence establishes that [claimant] see[s] or ha[s] seen the physician . . . with
       a frequency consistent with accepted medical practice for the type of treatment
       and evaluation required for [claimant's] medical condition(s). [The SSA] may
       consider a physician . . . who has treated [claimant] only a few times or only
       after long intervals (e.g. twice a year), to be [a] treating source if the nature
       and frequency of the treatment is typical for [claimant's] condition(s).

20 C.F.R. § 404.1502.

       Here, claimant alleges he became disabled in November 1988. R. I at 320. Although

claimant may have had an ongoing treatment relationship with Dr. Miller through 1982, id.

at 276-90, 300-05, the records show only sporadic visits to Dr. Miller after 1984, id. at

365-67. Instead, claimant received extensive evaluation and treatment for his heart

condition, headaches, seizures, and eye problems from the Veterans Administration hospital

during his alleged period of disability. See id. at 370-416, 442-58, 468-89, 504-50. Because

claimant's conditions were of the type that required evaluation and treatment more often than

once every year or two, Dr. Miller's opinion was not entitled to the deference afforded to that

of a treating physician.

       Even if Dr. Miller could be considered a treating physician, however, his opinion was

properly rejected because it was "brief, conclusory, and unsupported by medical evidence."

Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). Neither Dr. Miller's office notes nor his

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opinion as to claimant's disability contain objective medical findings to support that opinion.

See R. I at 365-67, 490. The ALJ did not err, therefore, in disregarding Dr. Miller's opinion

that claimant is disabled.

       Claimant also argues that the Secretary's findings regarding his headaches and seizures

are not supported by substantial evidence. Although the Secretary's finding that claimant

does not suffer from a severe seizure disorder is well-supported, we conclude that the finding

regarding his headaches is contrary to the record and must be reversed.

       To evaluate his claim of seizures, claimant was subjected to extensive testing,

including daytime and nighttime EEG's. These tests revealed no seizure activity despite

claimant's contemporaneous complaints of right-sided numbness. Id. at 506. This objective

medical evidence supports the Secretary's finding that claimant does not suffer from a severe

seizure disorder.

       The finding that claimant does not suffer from severe headaches, however, is not

supported by substantial evidence. After suffering several service-connected head injuries

in the late-1950's, claimant has been evaluated and treated consistently for headaches from

that time, see id. at 169, 240, 365-67, 463-64; see generally id. at 370-420, 453-58, 504-21,

and receives service-connected benefits for this condition, id. at 491, 576. His EEG revealed

findings which, although not specific to migraine headaches, "could be seen in association

with migraine." Id. at 405. Although some doctors questioned whether claimant's headaches

were truly migraine, as opposed to vascular, no physician questioned the existence of such


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headaches. The absence of unequivocal evidence of migraine headaches does not mean that

claimant does not suffer from them, as there is no "dipstick" laboratory test for such

headaches. See Sisco v. United States Dep't of Health & Human Servs., 10 F.3d 739, 744

(10th Cir. 1993)(lack of specific test for chronic fatigue syndrome did not mean claimant

failed to present medical evidence of disability).

       We note that the ALJ's decision is somewhat ambiguous as to whether he found

simply that claimant did not suffer from headaches, or whether he found that claimant's

headaches did not affect his capacity for light work. If the ALJ intended to make this second

finding, he was required to analyze claimant's headache pain under Luna v. Bowen, 834 F.2d

161, 165-66 (10th Cir. 1987). The generalized discussion at the beginning of the ALJ's

decision did not fulfill this requirement. Even if the ALJ accepted the existence of claimant's

headaches, therefore, his failure to analyze whether such headaches produced disabling pain

was legal error, requiring remand.

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

is REVERSED, and the case is REMANDED with directions to remand the case to the Social

Security Administration for further proceedings.



                                                          Entered for the Court



                                                          James E. Barrett
                                                          Senior Circuit Judge

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