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KENNETH S. APFEL, Commissioner, Social Security Administration,


No. 99-3367

(D.C. No. 98-CV-1097-WEB)

(D. Kan.)


Before TACHA, PORFILIO, and EBEL, 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.

Richard H. Frazier appeals from the district court's order affirming the decision of the Commissioner of Social Security. In that decision, the Commissioner denied claimant's applications for disability insurance benefits made under Title II of the Social Security Act. See 42 U.S.C. § 423. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and reverse.


Our review is limited to determining whether the Commissioner's decision is supported by substantial evidence on the whole record and comports with relevant legal standards. See Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir. 1991). Claims for disability benefits are evaluated according to the five-step sequential process set out in 20 C.F.R. § 404.1520. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Id. at 750. At step three of the sequential evaluation, the ALJ determines whether the claimant's medically-severe impairment "is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity . . . . If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits." Id. at 751 (quotation omitted). If the impairment does not meet a listing, the ALJ determines at step four whether the claimant is able to perform his or her past relevant work. See id. If the claimant can do so, he is not disabled. See id.


Mr. Frazier worked for almost forty years as a painter and drywaller. From 1988 until 1995, he also worked part-time for the painters' union as an elected and paid union representative. In 1992, Mr. Frazier was diagnosed with "mild to moderate chronic obstructive pulmonary disease," Appellant's App. at 171, that he complained limited his ability to walk or do other activities. See id. at 172. In 1994, chest X-rays revealed an enlarged heart, increased interstitial markings, and marked pleural thickening consistent with obstructive lung disease and asbestosis. See id. at 269.

Mr. Frazier stopped working as a painter in 1994 because of carpal tunnel syndrome and back and leg pain. He resigned from his part-time job as a union representative in March 1995, explaining at his administrative hearing that because the job required a lot of walking and visiting job sites that were dusty, his asbestosis and difficulty with breathing forced him to quit. See id. at 350, 354. He testified that he became out of breath and his leg hurt after walking 150 feet. See id. at 367. He also told a psychiatrist in July 1995 that he resigned from the union job, "in order to increase his chances of getting Social Security disability and because it was becoming more and more difficult to get around." Id. at 307. He told the psychologist that his asbestosis had led to severe breathing limitations and also that he could not receive his union pension unless he no longer made a salary with the union. See id.

Mr. Frazier's back and leg problems began in 1965 when he hurt his back while carrying an air compressor. See id. at 283. In 1991, he had a car accident that reinjured his back. Tests revealed "degenerative disc space narrowing at L5-S1 with fairly severe degenerative changes in the facet joints." Id. at 162. In December 1991, Dr. L.A. Klafta noted moderate spasm in the lumbar area, and diagnosed a lateral recess syndrome at L5-S1 that "may require surgical intervention." Id. at 168. Mr. Frazier chose to delay further treatment and returned to work. See id.

In 1994, Mr. Frazier was surgically treated for carpal tunnel syndrome arising from years of using his right hand and arm in the course of his employment as a painter. See id. at 341. The surgery did not relieve all his pain symptoms or enable him to regain his gripping capacities. Dr. Ernest Schlachter evaluated Mr. Frazier's right hand, shoulder, and arm after surgery and opined that he had a 15 percent permanent partial impairment of function of both the right shoulder and the right upper extremity. See id. at 343.

Soon after his carpal tunnel surgery, Mr. Frazier participated in a three-week "work hardening" program at a physical therapy clinic. The focus of the testing and therapy was to strengthen his upper extremities. See id. at 244. He reinjured his lower back while attempting to perform strength evaluation tests required by the therapists. See id. at 343, 384. During evaluation tests he reported overall general fatigue and pain in his back and leg, and the therapists observed that he had shortness of breath and "body mechanic breakdowns" while attempting to perform several "ERGOS" tests. See id. at 212-13, 217, 220, 223, 225, 239, 241-43. The therapists reported that Mr. Frazier showed "poor tolerance for prolonged standing and walking and periodically needed to sit in order to change positions and relieve discomfort in his leg and low back areas." Id. at 243. They opined that his "pain behavior was not exaggerated and that his overall performance was genuine." Id. at 244. Despite these observations, the therapists concluded that Mr. Frazier could function at the medium capacity work level and could stand or walk for three to four hour periods for up to eight hours per day. Id. at 245. Mr. Frazier attempted to return to work as a painter in August 1994, but quit again after two weeks because he could not tolerate the pain.

A cervical MRI in October 1994 showed osteoarthritis of the neck, a bulging disc at C4-5, and a multiple neuroforaminal encroachment at C6-7. Id. at 264-65. Mr. Frazier was evaluated at another physical therapy clinic in October 1994. Twenty minutes into the standing test, Mr. Frazier had to stop and stretch because of intolerable pain; he was able to stand for ten more minutes before he had to lie down because of back and hip pain. See id. at 255. The therapist stated that Mr. Frazier demonstrated cooperative behavior, worked to his maximum capacities, and demonstrated appropriate pain behavior, see id. at 253, but concluded that he had the capacity to do medium work and a "standing tolerance" of 34 to 66 percent of an eight-hour workday, see id. at 250, 252, 254. Mr. Frazier again attempted to return to work as a painter in November 1994, but quit a third time in late December 1994 because of back and leg pain. See id. at 184. He returned to physical therapy yet again. The therapist noted a 50 percent loss of range of motion in his left hip and loss of movement of the pinformis muscle during hip stretching. Id. at 277. Mr. Frazier tried two more therapy sessions in an attempt to increase his ability to stand from his current ability of one and one-half hours a day. See id. at 275.

CT scans taken in December 1994 revealed "generalized disc bulging from L3 to S1 with focal lateral herniation of disc material at the L4-5 level to the left." Id. at 184. Dr. Ron Brown, his treating physician, noted "diminished range of motion of the low back," "[muted] reflexes in the right lower extremity" and diminished pinprick in the left foot and referred him again to Dr. Klafta. Id. Further testing showed "mild concentric bulge to the annulus with some hypertrophic change of the ligamentum flavum and facets causing slight posterior lateral encroachment upon the thecal sac" at L3-4 and L4-5 and "vacuum disc phenomenon . . . [and] concentric bulging of the disc creating a moderate ventral extradural defect" at L5-S1. Id. at 287. Dr. Klafta stated that Mr. Frazier had "chronic sciatic pain," diagnosed spondylosis at the L5- S1 level with disc herniation, and performed a lumbar laminectomy with disc removal at L5-S1 in February 1995. See id. at 294.

Although he initially experienced some relief, Mr. Frazier continued having pain in his lower back and left leg throughout the rest of 1995. Dr. Klafta stated that his description of pain suggested "something at the L3 or possibly L4-5 levels," id. at 280, noting that there was "minimal stenosis at L4," id. at 310. Further MRI studies in June 1995 showed "generalized disk bulging at the L4-L5 level," which was "slightly asymmetric toward the left side." Id. at 313. A myelogram in November 1995 showed "slight asymmetric narrowing of the transverse diameter of the . . . thecal sac at L5-S1 . . . secondary to slight bone hypertrophy." Id. at 322. Other tests in January 1996 revealed "moderately severe degenerative disc space narrowing and associated degenerative change at the L5-S1 level" as well as degenerative changes in the facet joints at the L4-5 level. Id. at 320. Dr. Klafta treated Mr. Frazier with an epidural steroid block, but it did not give relief. See id. at 311. Dr. Klafta did not feel that further surgery would likely help. See id. at 310-11. Dr. Brown certified in December 1995 that Mr. Frazier was permanently disabled pursuant to the Kansas statutes(**) providing for special license plates for the disabled because he was "severely limited in [his] ability to walk due to an arthritic, neurological, or orthopedic condition." Id. at 317.

Upon his doctors' recommendation, in December 1995 Mr. Frazier went to a physiatrist, Dr. Jane Drazek. Dr. Drazek noted an antalgic gait and avoidance of weight bearing on the left leg, loss of normal lumbar lordosis, muscle tenderness in the back, mild hip flexor weakness, an absence of deep tendon reflexes in the upper and lower extremities and hyperaesthetic sensation on the left side. See id. at 339. She stated he had distal paraesthesias in the left leg and "mild peripheral polyneuropathy secondary to diabetes mellitus." Id. She recommended further physical therapy and treatment of a TENS unit because she desired to reduce his use of prescription narcotic pain killers. Mr. Frazier tried the TENS Unit for a month but discontinued its use because he could not afford it, it did not give lasting relief, and his insurance would not cover it. See id. at 336, 355-56. He also tried a different pain prescription prescribed by Dr. Drazek. He declined additional physical therapy at the clinic where Dr. Drazek worked because he could hardly walk after prior visits to that clinic. See id. at 356, 360-61. Dr. Drazek stated that Mr. Frazier had undergone various treatments to attempt to relieve his pain, but none were successful and "[g]iven the chronicity of his symptoms, as well as the poor response to both operative and conservative treatment," she had little else to offer him. Id. at 336. At the time of his hearing in July 1996, Mr. Frazier took 2400 mg of Ibuprofen daily, as well as Lortab, Percodan, and Ultram as needed for pain. He also used several inhalers for his asbestosis and took three medications for diabetes and one for high cholesterol. See id. at 157. He was unable to sit through the hearing and leaned on the table while standing. See id. at 359-60. He testified that he could only sit for ten to fifteen minutes without having to change position or lean on his elbows, after which he could sit for thirty to forty-five minutes. See id. at 362-63. He testified he could stand for thirty minutes if he could lean on something, but after standing for thirty minutes he would need to lie down. See id. at 368.


At step two of the disability analysis, the ALJ found that Mr. Frazier had several severe impairments, including diabetes, chronic obstructive pulmonary disease, osteoarthritis, "status/post carpal tunnel release," and "status/post laminectomy." Id. at 35. After setting out a summary of Mr. Frazier's medical record, the ALJ stated, "there is no evidence that the claimant has an impairment which meets the criteria of any of the listed impairments described in Appendix 1 of the Regulations. . . . No treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment." Id. at 29. The ALJ then determined that Mr. Frazier "does have pain causing functional limitations, but [] his complaints are only partially credible." Id. at 31. He determined that Mr. Frazier's "description of pain and limitation was inconsistent with his activities of daily living and was disproportionate to the medical findings." Id. at 32.

Dr. Jack Perkins, a state medical consultant, prepared a residual functional capacity (RFC) assessment without examining Mr. Frazier after reviewing the medical records in April 1995; his assessment was affirmed by another state medical consultant in August 1995. See id. at 119-26. The RFC assessment did not address any medical evidence compiled after July 1995. The ALJ adopted Dr. Perkins' opinion that Mr. Frazier was capable of light work, including sitting, standing, or walking six hours in a normal eight-hour workday, in part because the June 1994 ERGOS evaluation prepared before his February 1995 back surgery found him "capable of performing light work." Id. at 33-34. Based upon Dr. Perkins' opinion, the ALJ found that Mr. Frazier's ability to do work was limited by an inability to perform work requiring concentrated exposure to dust, fumes, odors, gasses, poor ventilation, hazardous machinery, or heights. See id. at 36. The ALJ also adopted Dr. Schlachter's findings that, due to the continuing carpal tunnel problems, Mr. Frazier should be permanently restricted to carrying a maximum of ten pounds with his right hand and could not perform work that required him to push, pull, twist, or grasp with his right hand or work above the horizontal level with his right arm. See id. at 27, 35. He concluded at step four that, although Mr. Frazier was unable to return to his past relevant work as a painter, he was able to return to his past relevant part-time work as a union representative and therefore was not disabled. See id. at 35-36.


On appeal to the district court, Mr. Frazier argued that the ALJ's decision that Mr. Frazier is not disabled is not supported by substantial evidence, and that the ALJ erred at step three in determining that his impairments or combination of impairments did not meet a listing. See id. at 425. In regard to the step three analysis, Mr. Frazier argued that the ALJ erred by failing to identify the relevant listings and failing to give his reasons for determining that Mr. Frazier's impairment or combination of impairments did not meet or equal listings for disorders of the spine (1.05C), chronic pulmonary insufficiency (3.02A, B), and chronic heart failure (4.02A) under the medical evidence. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (holding that stating a summary conclusion that a claimant's impairment does not meet or equal a listing without discussing which listing he referred to or why does not provide enough analysis for meaningful judicial review). Adopting the magistrate's report and recommendations, the district court concluded that the ALJ's discussion of the medical record satisfied the Clifton requirement and also was supported by substantial evidence. See Appellant's App. at 471.(3)

In this case, the ALJ set forth a summary of Mr. Frazier's medical record. Although he did not state which listings he considered or fully discuss the listings in relation to the medical record, he did make findings sufficient for judicial review. We disagree, however, that substantial evidence supports the ALJ's conclusion that Mr. Frazier's impairments did not meet or equal a listed impairment.

Under listing 1.05C, a claimant is presumed to be disabled if he has a herniated disc, spinal stenosis, or other vertebrogenic disorder and persistent "[p]ain, muscle spasm, and significant limitation of motion in the spine," along with "[a]ppropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss" for at least three months despite prescribed therapy, that is expected to last twelve months. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C. The ALJ found that "objective findings of record . . . essentially show only mild to moderate degenerative disc disease without herniation." Appellant's App. at 31.

Assuming that this was enough explanation to satisfy the Clifton requirement, the medical record belies the ALJ's findings. The record shows frank herniation of the L5-S1 disc, causing nerve root encroachment that was not significantly improved with surgery.(4) The post-surgical lumbar spine X-rays taken in January 1996 reveal a continued "moderately severe degenerative disc space narrowing at the L5-S1 level" that had progressed since the December 1994 studies. Id. at 320 (emphasis added). There was minimal stenosis in the L4 area with generalized disc bulging toward the left side between L4 and L5 after surgery. See id. at 310, 313. Evidence of every required objective and subjective component of listing 1.05C, including persistent pain, muscle spasm, significant limitation of spinal motion, and radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss, was present in Mr. Frazier's medical records. Apart from the June 1994 pre-surgical ERGOS evaluations (that were actually inconsistent with the therapists' observations) and Dr. Perkins' April 1995 opinion made without the benefit of examination or review of the medical records compiled after that date, nothing in the record contradicts Mr. Frazier's treating physician's sworn statement that Mr. Frazier was permanently and severely limited in his ability to walk because of his condition. See Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (ALJ must give controlling weight to treating physician's opinion if supported by the medical record); Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (evaluation forms prepared by agency physician without examination, "standing alone, unaccompanied by thorough written reports or persuasive testimony, are not substantial evidence."). We therefore conclude that the ALJ's conclusion that Mr. Frazier's impairments did not meet any listed impairment is not supported by substantial evidence. Because the medical record contains no evidence that contradicts the treating physicians' objective and subjective medical findings that support a finding of impairment under § 1.05(C), we further conclude that Mr. Frazier met his burden to establish that his impairment meets or equals a listed impairment.

Mr. Frazier is now almost sixty-three years old and his case has been pending for five years. Outright reversal and remand for immediate award of benefits is appropriate when additional fact finding would serve no useful purpose. See Harris v. Secretary of Health & Human Servs., 821 F.2d 541, 545 (10th Cir. 1987); Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993) (directing award of benefits based on Commissioner's failure to follow regulations, claimant's advanced age, medical record supporting finding of disability, and length of time case pending). The judgment of the United States District Court for the District of Kansas is REVERSED and REMANDED to the district court with instructions to remand to the Commissioner for an immediate award of benefits from March 17, 1995.

Entered for the Court

David M. Ebel

Circuit Judge

Click footnote number to return to corresponding location in the text.

*. 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.

**. The special licensing statute defines "person with a disability," inter alia, as one who "is severely limited in such person's ability to walk at least 100 feet due to an arthritic, neurological or orthopedic condition." Kan. Stat. Ann. § 8-1, 124.

3. Alternatively, the magistrate judge determined that Mr. Frazier had waived judicial review of his argument because he never claimed during the appeal of his administrative proceedings that his impairments met or equaled a specific listing, citing James v. Chater, 96 F.3d 1341 (10th Cir. 1996). Because the district court did not adopt this alternative finding, we need not address the issue of waiver. We note, however, that the United States Supreme Court has recently decided in Sims v. Apfel, No. 98-9537, 2000 WL 712806, at *7 (U.S. June 5, 2000), that Social Security claimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues.

4. It appears that the ALJ proceeded on an erroneous assumption that, once a herniated disc has been removed, an individual cannot meet listing 1.05C because the disc is no longer herniated. The regulations provide, however, that

[d]isorders of the spine, associated with vertebrogenic disorders . . . result in impairment because of distortion of the bony and ligamentous architecture of the spine or impingement of a herniated nucleus pulposus or bulging annulus on a nerve root. Impairment caused by such abnormalities usually improves with time or responds to treatment. Appropriate abnormal physical findings must be shown to persist on repeated examinations despite therapy for a reasonable presumption to be made that severe impairment will last for a continuous period of 12 months. This may occur in cases with unsuccessful prior surgical treatment.

20 C.F.R. Pt. 404 Subpt. P, App. 1, § 1.00B.

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