                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 18 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EARL HEREDEN,

                Plaintiff-Appellant,

    v.                                                   No. 98-7084
                                                   (D.C. No. 96-CV-470-B)
    KENNETH S. APFEL, Commissioner                       (E.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before TACHA , BARRETT , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
       Earl Hereden (claimant) filed an application for Social Security disability

insurance benefits in 1993, alleging disability since March 30, 1990 due to a

crushed spinal cord, difficulty with bowel control, and lack of feeling in his lower

extremities.   1
                   His application was denied initially and upon reconsideration. At

claimant’s request, an administrative law judge (ALJ) conducted an administrative

hearing. The ALJ determined that claimant retained the residual functional

capacity (RFC) to perform sedentary work with some limitations. Applying the

Medical-Vocational Guidelines, 20 C.F.R. § 404, Subpt. P., App. 2 (the grids), the

ALJ concluded that claimant was not disabled under the Social Security Act and

denied his application for benefits. The ALJ’s decision became the final decision

of the agency when the Appeals Council denied claimant’s request for review.

The district court affirmed the agency’s denial of benefits in part. We exercise

jurisdiction under 42 U.S.C. § 405(g). Because we conclude that the existing

record does not support the     district court’s decision to deny benefits in part, we

reverse and remand for further proceedings.



1
       Claimant had also filed an earlier application for benefits in 1990, which
ended at the administrative level. His counsel requested that the agency reopen
claimant’s earlier application to allow consideration of the alleged 1990 disability
date. The administrative law judge’s decision implicitly granted this request.   See
Taylor ex rel. Peck v. Heckler , 738 F.2d 1112, 1114-15 (10th Cir. 1984) (noting
de facto reopening of earlier application where ALJ did not dispose of that
application on res judicata basis, did not decline to reopen, and reviewed the case
on its merits after holding a hearing).

                                            -2-
       To qualify for disability benefits, claimant must demonstrate an “inability

to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner has

established a five-step sequential test for evaluating a disability.       See 20 C.F.R.

§ 404.1520; Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing

five steps). Applying the first four steps of the test, the ALJ determined that

claimant was not presently engaged in a substantial gainful activity; claimant had

a medically severe impairment, but the impairment did not meet any of the

impairments listed in the regulations; and claimant’s impairment prevented him

from performing his past relevant work. Claimant does not challenge the ALJ’s

conclusions about the first four steps of the test.

       Because claimant bore his burden of proof on the first four steps, he

established a prima facie case of disability.         See Williams , 844 F.2d at 751. The

burden of proof shifted to the Commissioner at step five to show that claimant

retained the RFC to “perform an alternative work activity and that this specific

type of job exists in the national economy.”          Hargis v. Sullivan , 945 F.2d 1482,

1489 (10th Cir.1991) (quotation omitted). Here, the ALJ found that claimant’s

post-surgical back condition was substantiated by objective medical evidence, but


                                                -3-
was not so severe as to preclude claimant from performing a full range of

sedentary work, with restrictions on frequent/repetitive bending or stooping.

See Appellant’s App., Vol. II at 21. The ALJ then relied on the grids, which

directed the conclusion that claimant was not disabled.

       The district court, upon review of the medical evidence, determined that

claimant had been disabled under the Social Security Act for a fifteen-month

period after his spinal crush accident. It affirmed the denial of benefits after that

time, but ordered the case remanded for an award of benefits for the fifteen-

month period. See id. , Vol. I at 13, 22. Claimant does not challenge the award of

benefits but only that part of the   district court’s order affirming the denial of

benefits after the fifteen-month period.

       On appeal, claimant raises two main arguments: 1) the       district court’s

determination that claimant was disabled for a fifteen-month period effectively

transformed the case into a termination of benefits case, and 2) the ALJ erred in

relying on the grids in the presence of significant nonexertional impairments.

Within the second issue, claimant also argues that the agency failed to apply its

age regulations to his case.    See Appellant’s Br. at 24. The termination of

benefits issue and the age regulation argument were not preserved for appellate

review because claimant’s counsel failed to raise these points in his objections to




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the magistrate judge’s report and recommendation. Therefore, we will not review

them. See Soliz v. Chater , 82 F.3d 373, 375-76 (10th Cir. 1996).

       Our review is limited to determining whether the agency’s findings “are

supported by substantial evidence and whether the [Commissioner] applied

correct legal standards.”    Gay v. Sullivan , 986 F.2d 1336, 1338 (10th Cir. 1993)

(quotation omitted). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”        Hargis,

945 F.2d at 1486. This court will neither reweigh the evidence as it evaluates the

record, nor will it substitute its judgment for that of the agency.   See Casias v.

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

“Failure to apply the correct legal standard or to provide this court with a

sufficient basis to determine that appropriate legal principles have been followed

is grounds for reversal.”    Byron v. Heckler , 742 F.2d 1232, 1235 (10th Cir. 1984)

(quotation omitted).

       In the single issue preserved for appellate review, claimant argues that the

record supports the existence of various significant nonexertional impairments

and that, therefore, the ALJ erred in relying on grids to reach his disability

determination. It is well established that the grids should not be applied

conclusively “unless the claimant could perform the full range of work required

of [the pertinent RFC] category on a daily basis and unless the claimant possesses


                                              -5-
the physical capabilities to perform most of the jobs in that range.”        Ragland v.

Shalala , 992 F.2d 1056, 1057 (10th Cir.1993). “[R]esort to the grids is

particularly inappropriate when evaluating nonexertional limitations such as

pain.” Id. (quotation omitted). Therefore, we evaluate the record to determine

whether substantial evidence supports the ALJ’s decision that claimant is capable

of engaging in a full range of sedentary work with some limitations and is

physically capable of performing most jobs in that category.         See id. “Absent

such evidence, the [Commissioner] cannot satisfy the burden at step five without

producing expert vocational testimony or other similar evidence to establish the

existence of significant work within the claimant’s capabilities.”       Id.

       Claimant first argues that the ALJ ignored his treating physician’s opinion

that he was permanently partially disabled.         See Appellant’s Br. at 21. The

district court attempted to cure this deficiency by addressing the disability opinion

and noting that it was not made in the context of the Social Security Act.        See

Appellant’s App., Vol. I at 22. While the court correctly implied that the agency

reserves the authority to determine disability under the Social Security Act even

where a physician has opined that a claimant is disabled,       see 20 C.F.R.

§ 404.1527(e)(1), agency regulations and applicable case law make clear that the

agency (not the district court) must consider and properly reject treating

physicians’ opinions.    See id. §404.1527(d)(2); Goatcher v. United States Dep’t of


                                              -6-
Health & Human Servs. , 52 F.3d 288, 290 (10th Cir. 1995) (“The ALJ must give

specific, legitimate reasons for disregarding the treating physician’s opinion that

a claimant is disabled.”). The ALJ’s failure to consider claimant’s treating

physician’s opinion of disability was error.

       Claimant further argues the presence of various nonexertional limitations

and complains that the ALJ improperly rejected medical evidence in support of

those impairments. First, he contends that he has a significant loss of sensation in

his lower extremities. While the ALJ did credit his testimony on this point to

some extent, the ALJ concluded that it did not compel a finding that claimant was

incapable of all work.   See Appellant’s App., Vol. II, at 19. The ALJ also stated:

“The claimant’s own doctor noted that there was a discrepancy which he could

not explain between the objective findings and the claimant’s complaint[] of

whole leg sensation loss.”   Id. at 18. This statement refers to a report by

Dr. Mitchell, to whom claimant was referred by his treating physician,

Dr. Shaddock. Dr. Mitchell conducted a “lumbar somatosensory evoked

potential” and concluded that claimant’s responses to the test were normal.

See id. at 113. However, the ALJ’s reference to this test ignores the balance of

Dr. Shaddock’s treating notes and medical evidence regarding further treatment

of this problem.   See id. at 198-208. The ALJ should not pick and choose among

comments in medical reports, relying on some while disregarding others.        See


                                          -7-
Switzer v. Heckler , 742 F.2d 382, 385-86 (7th Cir. 1984). We conclude that

substantial record evidence does not support the ALJ’s analysis of this alleged

nonexertional impairment.

       Claimant next asserts that he is precluded from twisting and has an

extremely limited ability to flex and bend. The ALJ concluded that he could

perform sedentary work, with limitations on “frequent/repetitive bending or

stooping.” Appellant’s App., Vol. II at 17. Although acknowledging that

claimant’s physician’s work release precluded any twisting,        see id. , the ALJ did

not include this limitation in his RFC assessment. The        district court, addressing

claimant’s challenge to the ALJ’s reliance on the grids, concluded that use of the

grids was appropriate because sedentary work, by definition, includes no

significant stooping.   See id. , Vol. I at 12. Claimant contends that this was error,

in light of the medical evidence limiting flexing, bending and twisting. We agree.

The medical record contains substantial evidence that claimant has these

limitations; the ALJ acknowledged them in the body of his opinion. However,

neither the ALJ’s limitations on bending and stooping nor the        district court’s

reference to the regulation defining sedentary work address these limitations

adequately. Therefore, we conclude that the ALJ’s RFC assessment that claimant

can perform a full range of sedentary work with some limitations is not supported

by substantial medical evidence on the record.


                                           -8-
       Third, claimant alleges that his bowel incontinence problem is a

nonexertional impairment and contends that the ALJ failed to consider it in

making his RFC assessment. This condition is well-documented in the medical

record, including claimant’s attempts to seek treatment for it.   See id. , Vol. II at

197, 199-203. We agree that, while acknowledging the condition, the ALJ did not

include it as a limitation on claimant’s RFC or discuss why it would not limit

claimant’s performance of a full range of sedentary work. The magistrate judge

noted that claimant was referred to a therapist for this problem, but that his bowel

functions did not return. He then stated that “thereafter [claimant] indicated to

his doctors he only had occasional trouble with this and had no difficulty

urinating.” Id. , Vol. I at 9. These references to the medical record do not present

a fair picture of the evidence. Neither of these comments were made in

connection with treatment of claimant’s bowel condition, and they ignore

Dr. Shaddock’s treatment notes which indicate that the problem not only

continued, but worsened. In making his disability determination, Dr. Shaddock

attributed a 20% “whole person impairment” to claimant’s bowel incontinence.

See id. , Vol. II at 197. In light of this medical history, we agree with claimant’s

argument that the ALJ erred in failing to consider this impairment in assessing

claimant’s RFC.




                                             -9-
      We hold that the ALJ failed to properly consider the record medical

evidence regarding claimant’s asserted nonexertional impairments and also failed

to consider acknowledged nonexertional limitations in making his RFC

assessment. Therefore, his conclusion that claimant can perform a full range of

sedentary work with some limitations is not supported by substantial evidence.

Accordingly, we reverse the   district court’s partial affirmance of the denial of

disability benefits, and remand for further administrative proceedings consistent

with this opinion. The judgment of the United States District Court for the

Eastern District of Oklahoma is REVERSED, and the case REMANDED to the

agency for further proceedings.



                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




                                         -10-
