                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 11 2003
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    GEORGIA E. LAMB,

                Plaintiff-Appellant,

    v.                                                    No. 03-7024
                                                    (D.C. No. 02-CV-392-P)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before O’BRIEN and BALDOCK , Circuit Judges, and              BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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 Georgia E. Lamb appeals the district court’s order

affirming the Social Security Commissioner’s denial of her application for

disability insurance benefits under the Social Security Act. We exercise

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse and

remand for further proceedings.


                                           I.

      Mrs. Lamb and her husband owned a dairy farm. On October 21, 1998,

Mrs. Lamb injured her back and neck when a calf pen fell on her head and

knocked her down. Mrs. Lamb’s medical records document the treatment she has

received through September 2001, and the records indicate the following.

      Mrs. Lamb’s main treating physician is Dr. Osborne, an osteopath.

Dr. Osborne referred her to Dr. Duncan, a neurologist, and Dr. Duncan saw her in

June and August 1999.      See Aplee. Supp. App. at 124, 254, 260-61. Dr. Duncan’s

records indicate that MRIs of her spine showed a small central disc protrusion at

T5-6 and osteophytes at C4-5 and C5-6, and he diagnosed cervical radiculopathy.

Id. at 124, 254. Dr. Duncan’s records indicate that Mrs. Lamb received epidural

injections from another physician, but they did not lead to any consistent

improvement in her pain.     Id. at 124.

      Dr. Duncan referred Mrs. Lamb to Dr. Pelofsky, a neurosurgeon, and

Dr. Pelofsky saw her in September 1999 and January 2000.     Id. at 170-71.

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Dr. Pelofsky diagnosed cervical spondylosis at C4-5 and C5-6, with no evidence

of active radiculopathy or myelopathy,     id. at 170, and “complex regional pain

syndrome involving her occipital region, her cervical region, her shoulders, and

arms,” id. at 171. Dr. Pelofsky noted, however, that “[n]eurologically, . . . her

symptoms far exceed her neurologic findings.”          Id. Dr. Pelofsky also noted that

Mrs. Lamb showed evidence of “significant depression,” and he prescribed Zoloft

to treat her depression.    Id. at 170.

       Dr. Pelofsky referred Mrs. Lamb to Dr. Eckman, a radiologist/pain

management specialist, and Dr. Eckman treated her from September 1999 to

December 1999.        Id. at 128-37, 150-51, 202-03. Dr. Eckman’s records indicate

that an MRI of her cervical spine showed an anterior disc bulge at C5-6, but

“no protrusions, outer annular tears, stenosis, or congenital abnormalities.”       Id. at

136. His records also indicate that an MRI of her thoracic spine showed a disc

protrusion at T5-6.     Id. Dr. Eckman diagnosed Mrs. Lamb as suffering from

“complex regional pain syndrome, type I,”         id. at 128, which he also referred to as

“sympathetically maintained pain syndrome,”          id. at 130. His records also

document cervical disc disease with mild radicular signs and associated occipital

neuralgia, id. at 128, and he gave Mrs. Lamb epidural and nerve block injections

to treat her pain, id. at 128, 132. Although Dr. Eckman reported that Mrs. Lamb’s

case was “unusual” because her complaints of severe pain exceeded the objective


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medical evidence, he also noted that the “symptom expression, muscle spasm and

range of motion are dramatic to say nothing of the impact that this pain has had

on this patient’s life.”   Id. at 137. He further reported that he “was very

impressed by the degree of pain and disability this obviously tough and sturdy

woman was experiencing.”        Id. at 136.

       Dr. Pelofsky also referred Mrs. Lamb to Dr. Hancock, a physical medicine

and rehabilitation specialist, and she saw Dr. Hancock in January and February

2000. Id. at 138, 140-41. Dr. Hancock diagnosed cervical degenerative disc

disease/cervical spondylosis, bilateral shoulder impingement, and sympathetically

mediated pain of the left shoulder.     Id. at 138, 141. She also noted that

Mrs. Lamb suffers from depression and a sleep disorder.           Id. at 138.

       In February 2000, Dr. Hancock and Dr. Pelofsky referred Mrs. Lamb to

Dr. Marshall, another pain management specialist, and Dr. Marshall treated her

through September 2001.       Id. at 142-46, 155, 157-59, 160-65, 297, 304-307, 318.

Dr. Marshall’s records confirm the protruding disc at T5-6,         id. at 304-05, and he

diagnosed recurrent thoracic radiculitis secondary to thoracic degenerative disc

disease, id. at 305. He also diagnosed Mrs. Lamb as suffering from chronic

regional pain syndrome.      Id. at 142, 145, 164. Dr. Marshall implanted a spinal

cord stimulator in her neck in June 2000,       id. at 142-44, and he also gave her

several epidural and nerve block injections,         id. at 155, 157-58, 297, 306-07, 318.


                                               -4-
Dr. Marshall’s records indicate that the spinal cord stimulator helped to reduce

her pain and make her more functional, but his records also document a number of

continuing complaints regarding pain associated with her thoracic degenerative

disc disease. Id. at 155, 157-58, 297, 304-305.

       In March 2000, Dr. Marshall referred Mrs. Lamb to Dr. Nael for a

psychiatric evaluation.   Id. at 292-96. Dr. Nael diagnosed Mrs. Lamb as suffering

from “major depression, moderate single episode, non-psychotic,” and he rated

her global assessment of functioning score at 60.   Id. at 295. Dr. Nael also stated

that Mrs. Lamb “needs to continue her medications and possibly follow-up

psychiatrically for treatment of her depression.”   Id. at 296.


                                            II.

       In February 2001, Mrs. Lamb filed an application for disability insurance

benefits. After her claim was denied initially and on reconsideration, a de novo

hearing was held before an administrative law judge (ALJ). In a decision dated

January 15, 2002, the ALJ determined that Mrs. Lamb is not disabled and denied

her application for benefits. In May 2002, the Appeals Council denied

Mrs. Lamb’s request for review of the ALJ’s decision. Mrs. Lamb then filed a

complaint in the district court. In January 2003, the district court entered an order

affirming the ALJ’s decision denying benefits. This appeal followed.



                                            -5-
       “To qualify for disability benefits, a claimant must establish a severe

physical or mental impairment expected to result in death or last for a continuous

period of twelve months which prevents the claimant from engaging in substantial

gainful activity.”    Thompson v. Sullivan , 987 F.2d 1482, 1486 (10th Cir. 1993).

The Commissioner has established a five-step sequential evaluation process for

determining whether a claimant is disabled.          Id. In this case, the ALJ found at

step two that Mrs. Lamb suffers from a severe impairment in the form of

degenerative disc disease, but the ALJ denied benefits at step five, finding that

she retains the residual functional capacity (RFC) to perform light work and is

therefore not disabled under the medical-vocational guidelines (grids).         See

20 C.F.R., Pt. 404, Subpt. P, App. 2 (2001).

       We review the ALJ’s decision only to determine whether his factual

findings are supported by substantial evidence and whether he applied the correct

legal standards.     See O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir. 1994).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”     Id. (quotations omitted). In making the

substantial-evidence determination, we neither reweigh the evidence nor

substitute our judgment for that of the ALJ.         See Thompson , 987 F.2d at 1487.

       Mrs. Lamb claims the ALJ erred by: (1) failing to properly consider

Dr. Osborne’s opinion that she is unable to perform even sedentary work;


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(2) failing to properly assess her RFC; and (3) failing to determine whether she

suffers from a severe mental impairment. We agree with Mrs. Lamb that the ALJ

committed reversible error with respect to each of these points.

      A. Dr. Osborne’s Opinion

      In deciding how much weight to give the opinion of a treating physician, an

ALJ must first determine whether the opinion is entitled to “controlling weight.”

See Watkins v. Barnhart, __ F.3d __, 2003 WL 22855009, at *2 (10th Cir. Dec. 2,

2003). An ALJ is required to give the opinion of a treating physician controlling

weight if it is both: (1) “well-supported by medically acceptable clinical and

laboratory diagnostic techniques;” and (2) “consistent with other substantial

evidence in the record.”   Id. (quotation omitted). “[I]f the opinion is deficient in

either of these respects, then it is not entitled to controlling weight.” Id.

      Even if a treating physician’s opinion is not entitled to controlling weight,

“[t]reating source medical opinions are still entitled to deference and must be

weighed using all of the factors provided in 20 C.F.R. [§§] 404.1527 and

416.927.” Id. (quotation omitted). And, “[a]fter considering the     pertinent

factors, the ALJ must give good reasons . . . for the weight he ultimately assigns

the opinion.”   Id. at *3 (quotation omitted). Further, “if the ALJ rejects the

opinion completely, he must then give specific, legitimate reasons for doing so.”

Id. (quotation omitted). We have also held that an ALJ “may reject a treating


                                          -7-
physician's opinion outright only on the basis of contradictory medical evidence

and not due to his or her own credibility judgments, speculation or lay opinion.”

McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (quotation omitted).

       In October 2001, Dr. Osborne filled out a form entitled “Medical Source

Statement - Physical.”     See Aplee. Supp. App. at 301-02. With respect to her

exertional limitations, the form states: (1) that Mrs. Lamb can stand, walk, or sit

for a total of less than one hour during an eight-hour workday; (2) that she is

limited in her ability to push or pull; and (3) that she can only occasionally lift

less than ten pounds.    Id. As noted by the ALJ in his decision, the limitations

imposed by Dr. Osborne on standing, walking, and sitting indicate that Mrs. Lamb

has “less than sedentary capability.”    Id. at 26. This is in conflict with the

“Physical Residual Functional Capacity Assessment” forms that were completed

by two non-examining medical consultants on behalf of the Commissioner, as

both of the non-examining consultants found that Mrs. Lamb’s exertional

limitations do not prevent her from performing light work.           Id. at 227-34, 235-42.

       The ALJ characterized Mrs. Lamb’s impairment as “degenerative disc

disease,” and he found that it was a severe impairment at step two, but that it did

not meet or equal the listing for vertebrogenic disorders of the spine (Listing

1.05C) at step three.    Id. at 25. After concluding that “Dr. Osborne’s less than

sedentary findings . . . are not supported by the medical record,”        id. at 26, the


                                            -8-
ALJ found at step four that Mrs. Lamb retains the RFC to perform light work for

an eight-hour workday, and he concluded that she is not disabled at step five

based on the grids, id. at 26-27. The ALJ therefore completely rejected Dr.

Osborne’s opinion, and he apparently gave it no weight whatsoever.

      The ALJ provided two reasons for his conclusion that Dr. Osborne’s

opinion is not supported by the medical record. First, he noted that “[m]agnetic

resonance imaging did not show stenosis, herniation, damage to the spinal cord,

or other developments necessary for Dr. Osborne’s evaluation to be legitimate.”

Id. at 26. Second, he noted that “[b]oth [Mrs. Lamb] and her treating surgeon

stated in the record that she received significant relief from the permanently

implanted spinal cord stimulator.”    Id. Although he did not specifically tie his

credibility determination to his evaluation of Dr. Osborne’s opinion, the ALJ also

found that Mrs. Lamb’s claim that she is in constant pain “is not credible in view

of the record’s marking of her progress.”    Id.

      Based on the record before this court, we conclude that these are not

legitimate reasons for rejecting Dr. Osborne’s opinion. To begin with, while the

ALJ is correct that the record does not contain MRI evidence showing “stenosis,

herniation, [or] damage to the spinal cord,” this does not mean that Dr. Osborne’s

opinion that Mrs. Lamb cannot perform even sedentary work is unsupported. To

the contrary, the ALJ committed reversible error by failing to analyze the specific


                                            -9-
physical ailments that are documented in Mrs. Lamb’s medical records.

Specifically, in order to determine whether Dr. Osborne’s opinion is entitled to

controlling weight, the ALJ was required to analyze the physical ailments that are

documented in Mrs. Lamb’s medical records (           i.e. , degenerative disc disease and

complex or chronic regional pain syndrome        1
                                                     and the pain and physical limitations

related thereto) and determine, as a threshold matter, whether Dr. Osborne’s

opinion that those ailments are disabling is well supported and not inconsistent

with other substantial evidence in the record.         See Watkins, 2003 WL 22855009,

at *2.

         Moreover, the fact that Dr. Marshall’s medical records indicate in very

general terms that Mrs. Lamb had decreased pain and was functioning better

after the spinal cord stimulator was implanted does not provide any specific or

useful information regarding the physical limitations caused by her underlying

back and neck problems. Consequently, the general references in Dr. Marshall’s

medical records do not provide a legitimate basis for rejecting Dr. Osborne’s

opinion. Similarly, the ALJ’s conclusory assertion that Mrs. Lamb’s medical

records show “progress” is not a legitimate basis for rejecting Dr. Osborne’s


1
      With respect to the diagnosis of complex or chronic regional pain
syndrome, we note that there is a recent Social Security Ruling specifically
addressing how ALJs are to evaluate this syndrome.   See SSR 03-2p, Evaluating
Cases Involving Reflex Sympathetic Dystrophy Syndrome/Complex Regional Pain
Syndrome , 2003 WL 22399117 (Oct. 20, 2003).

                                            -10-
opinion. Accordingly, because the ALJ failed to provide legitimate reasons for

rejecting the opinion of Dr. Osborne, we must remand this case for a reevaluation

of Dr. Osborne’s opinion.

      B. ALJ’s RFC Determination

      As set forth above, the ALJ rejected Dr. Osborne’s opinion that Mrs. Lamb

cannot perform even sedentary work, and the ALJ found that Mrs. Lamb has the

RFC to perform light work.     See Aplee. Supp. App. at 26-27. There is no

competent medical evidence in the record to support the ALJ’s light work

determination because: (1) the RFC assessment forms that were prepared by the

two non-examining agency physicians,      id. at 227-34, 235-42, do not constitute

substantial evidence since they are not accompanied by thorough written reports

or persuasive testimony,   see Frey v. Bowen , 816 F.2d 508, 515 (10th Cir. 1987);

and (2) leaving aside Dr. Osborne, none of the other doctors who have examined

Mrs. Lamb have specifically addressed or defined her exertional limitations in

terms of her ability to sit, stand, walk, lift, carry, push, and pull or her

nonexertional limitations in terms of her ability to reach, handle, stoop, crouch,

climb, etc., see 20 C.F.R. § 404.1569a (2001).

      As a result, even if the ALJ determines on remand that he is not required to

give controlling weight to the opinion of Dr. Osborne, the ALJ cannot then simply

conclude, as it appears he did in the decision under review, that Mrs. Lamb is


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therefore capable of performing light work.      See Aplee Supp. App. at 26-27.

Instead, the ALJ must evaluate and make specific findings as to Mrs. Lamb’s

physical RFC, see Winfrey v. Chater , 92 F.3d 1017, 1023 (10th Cir. 1996), and

the findings must be supported by substantial evidence,    see Haddock v. Apfel , 196

F.3d 1084, 1088-89 (10th Cir. 1999).

      Further, the ALJ must ensure that a sufficient record exists to evaluate

Mrs. Lamb’s exertional and nonexertional limitations.      See SSR 96-8p, 1996 WL

374184, *5 (July 2, 1996) (noting that ALJs “must . . . make every reasonable

effort to ensure that the file contains sufficient evidence to assess RFC,” and that

“[t]he RFC assessment must address both the remaining exertional and

nonexertional capacities of the individual”). And, while the ALJ is not limited to

considering only medical evidence,    see 20 C.F.R. § 404.1545(a) (2001) (“[RFC]

is an assessment based upon all of the relevant evidence.”), the ALJ’s duty to

develop the record may include obtaining additional medical evidence from Mrs.

Lamb’s treating physicians or ordering a consultative examination if the record

does not otherwise contain sufficient evidence upon which to base an RFC

finding, see 20 C.F.R. § 404.1512(d)-(f) (2001).

      C. Alleged Mental Impairment

      We conclude that the ALJ erred by failing to address whether Mrs. Lamb

suffers from a severe mental impairment. As noted above, Dr. Nael diagnosed


                                          -12-
Mrs. Lamb as suffering from depression, and there are also references to the fact

that she suffers from depression, and was prescribed Zoloft to treat her

depression, in the records of Dr. Pelofsky and Dr. Hancock. Thus, there is

sufficient evidence in the record to establish that Mrs. Lamb suffers from a

mental impairment, and the ALJ therefore erred by failing to evaluate the severity

of her mental impairment in accordance with the procedures set forth in 20 C.F.R.

§ 404.1520a (2001).   See Cruse v. United States Dep’t of Health & Human Servs.      ,

49 F.3d 614, 617 (10th Cir. 1995) (“When there is evidence of a mental

impairment that allegedly prevents a claimant from working, the [ALJ] must

follow the procedure for evaluating mental impairments set forth in 20 C.F.R.

§ 404.1520a and the Listing of Impairments and document the procedure

accordingly.”).

      The order of the district court is REVERSED, and this case is REMANDED

to the district court with instructions to remand the case to the Commissioner for

further proceedings before the ALJ.


                                                    Entered for the Court


                                                    Wade Brorby
                                                    Senior Circuit Judge




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