                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        February 28, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    CHARLES D. SMITH,

                Plaintiff-Appellant,

    v.                                                   No. 04-7027
                                                   (D.C. No. 03-CV-258-W)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, HENRY , and O’BRIEN , 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff Charles D. Smith appeals the district court’s affirmance of the

defendant Social Security Commissioner’s denial of supplemental security income

(SSI) benefits. He argues that (1) the Administrative Law Judge (ALJ) erred in

basing his decision on a hypothetical question not posed to the Vocational Expert

(VE) and unsupported by the evidence and (2) the ALJ erred in failing to discuss

why Mr. Smith’s mental impairment did not meet a listing. We review the ALJ’s

decision only to determine whether the correct legal standards were applied and

whether the ALJ’s factual findings are supported by substantial evidence.         Doyal

v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003). Reviewing pursuant to these

standards, we conclude the ALJ failed to apply correct legal standards.

Accordingly, we reverse and remand to the district court with instructions to

remand to the Commissioner to conduct further proceedings.

       This case has a lengthy procedural history. Mr. Smith applied for SSI

benefits on July 15, 1993, alleging disability since July 18, 1983   1
                                                                         from arthritic

pain in his right knee, right ankle, neck, fingers and low back and cognitive



1
       Mr. Smith previously filed an application for SSI benefits on April 6, 1992,
alleging disability as of April 11, 1983. The application was denied initially and
on reconsideration. Mr. Smith did not request further administrative review.
Although the ALJ acknowledged the prior decision, he apparently proceeded
using Mr. Smith’s asserted disability date. We construe this as a partial de facto
reopening of the prior denial of benefits. Cf. Taylor ex rel. Peck v. Heckler ,
738 F.2d 1112, 1115 (10th Cir. 1984) (ALJ de facto reopened prior decision by
reviewing case on merits and considering additional evidence).

                                            -2-
difficulties.   2
                    The claim was denied initially and on reconsideration. After

holding a hearing, the ALJ denied benefits. The Appeals Council remanded for

further proceedings concerning Mr. Smith’s subjective complaints, mental

impairments and residual functional capacity (RFC),       3
                                                              including VE clarification

of Mr. Smith’s limitations based on hypothetical questions reflecting the specific

limitations established in the record. Aplt. App., tab 4 at 426-27. After holding a

second hearing, a different ALJ denied benefits. The Appeals Council remanded

for a second time for further consideration of Mr. Smith’s mental impairments

and RFC. Id. at 488.

       After a third hearing, the ALJ again denied SSI benefits. The ALJ found

that Mr. Smith suffers from the severe mental impairments of major depression

and borderline intellectual functioning, but that these impairments did not meet or

equal a listing.      Id. at 28, 37-38. The ALJ found no severe physical impairment

likely to cause the severe pain alleged by Mr. Smith or any functional limitations.

Id. at 28, 32. With respect to Mr. Smith’s RFC, the ALJ found that Mr. Smith can

understand and perform simple, but not complex or detailed, tasks; can interact

2
      In his application, Mr. Smith alleged disability due only to right knee and
lower back problems. Because he presented the other possible impairments, we
consider those to have been properly before the ALJ.   See Hawkins v. Chater ,
113 F.3d 1162, 1164 n.2 (10th Cir. 1997).
3
       RFC is “the maximum degree to which the individual retains the capacity
for sustained performance of the physical-mental requirements of jobs.”
20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c).

                                             -3-
appropriately with others at a superficial, work-related level; can adapt to a work

setting; and has moderate limitations in social functioning and concentration,

persistence and pace.   Id. at 38. Ultimately, the ALJ denied benefits at step five

of the five-step sequential evaluation process,   see 20 C.F.R. § 416.920,   4
                                                                                 finding

that Mr. Smith can perform work existing in the national economy, including the

janitor/cleaner, kitchen worker or packer jobs suggested by the VE.

       The Appeals Council denied Mr. Smith’s request for review, making the

ALJ’s decision the final decision of the Commissioner.      See Doyal , 331 F.3d

at 759. On judicial review, the district court adopted the magistrate judge’s

recommendation and affirmed the denial of benefits. Mr. Smith now appeals to

this court.

                                             I.

       Mr. Smith first argues that the ALJ erred in basing a decision on a

hypothetical question not posed to the VE and unsupported by the evidence.

After the third hearing, the ALJ (and Mr. Smith’s counsel) submitted various

interrogatories to the VE. One interrogatory included the following hypothetical

question, which the ALJ quoted and relied on in his decision:




4
       At step five, the Commissioner bears the burden of proving the claimant
can perform work existing in the national economy.   See Dikeman v. Halter ,
245 F.3d 1182, 1184 (10th Cir. 2001).

                                            -4-
       a hypothetical person with the same age, education and work history
       as the claimant, who retains the residual functional capacity to lift
       and/or carry ten pounds frequently and 20 pounds occasionally, stand
       for about six hours total in an eight hour day, and sit for about six
       hour[s] total in an eight hour day.[ 5] Additionally, this person can
       understand and perform simple tasks but not complex or detailed
       tasks. He can act appropriately with others at a superficial
       work-related level and can adapt to a work setting.

Aplt. App., tab 4 at 40. In response to this hypothetical, the VE indicated

Mr. Smith could perform janitor/cleaner, kitchen helper and packer jobs. The

ALJ gave great weight to the VE’s response, but decided Mr. Smith was not

limited to light work as set forth in the hypothetical.     See id.

       On appeal, Mr. Smith specifically asserts the following: (1) the ALJ

mistakenly found that the VE indicated Mr. Smith could make a vocational

adjustment to work existing in the national economy; (2) despite the

hypothetical’s limitation to light work, the janitor/cleaner and kitchen helper jobs

are medium, not light, work, yet the ALJ incorrectly found no inconsistency;

(3) the ALJ submitted a hypothetical that did not precisely state Mr. Smith’s

impairments; and (4) the hypothetical did not include all of Mr. Smith’s

limitations. We address each assertion in turn.

       Mr. Smith asserts that the ALJ mistakenly found that the VE indicated that

Mr. Smith could make a vocational adjustment to work existing in the national



5
       This meets the definition of light work.       See 20 C.F.R. § 416.967(b).

                                              -5-
economy. It is true that the VE did not explicitly make such a statement. But the

VE’s indication that Mr. Smith can perform three different jobs implicitly

suggests that he can make a vocational adjustment to work existing in significant

numbers in the national economy. And the hypothetical question stated Mr. Smith

could adapt to a work setting. Thus, we reject this argument.

       Mr. Smith correctly points out that the janitor/cleaner and kitchen helper

jobs are medium, not light, work under the descriptions contained in the

Dictionary of Occupational Titles, vol. 1 at 382.664-010, 318.687-010 (4th ed.

1991) (DOT). Despite the inconsistency between the hypothetical’s limitation to

light work and the VE’s response including two medium work jobs, the ALJ

determined there were no inconsistencies between the VE’s response and the DOT

information. Aplt. App., tab 4 at 40. Thus, we conclude Mr. Smith correctly

faults the ALJ and VE for failing to note and explain these inconsistencies.

              [B]efore an ALJ may rely on expert vocational evidence as
       substantial evidence to support a determination of nondisability, the
       ALJ must ask the expert how his or her testimony as to the exertional
       requirement of identified jobs corresponds with the [DOT], and elicit
       a reasonable explanation for any discrepancy on this point.

Haddock v. Apfel , 196 F.3d 1084, 1087 (10th Cir. 1999) (addressing both

exertional and skill-level limitations conflicting with the DOT);   see Hackett v.

Barnhart , 395 F.3d 1168, 1175 (10th Cir. 2005) (“Social Security Ruling

00-4p[, 2000 WL 1898704, at *2 (SSR)] . . . requires a reasonable explanation for


                                            -6-
conflicts between a VE’s testimony and the DOT relating to any ‘occupational

information.’”).

         A reasonable explanation may be that the VE considered other information

not listed in the DOT. SSR 00-4p, 2000 WL 1898704, at *2. And the VE in this

case did indicate that he relied on sources other than the DOT. Aplt. App., tab 4

at 539-40. Although the ALJ recognized that the VE had relied on these other

sources, the ALJ did not rely on the VE’s use of these other sources to explain an

inconsistency, because the ALJ found no inconsistency between the VE’s

responses and the DOT.      Id. at 40. Where, as here, the DOT clearly classifies the

kitchen helper and janitor/cleaner jobs as medium, not light, work and the VE

does not supply any reason for classifying the exertional demands of these

occupations differently than the DOT, the ALJ may not rely on the VE’s

indication that these jobs are light work.    See SSR 00-4p, 2000 WL 1898704,

at *3.

         Next, Mr. Smith argues that the hypothetical question did not precisely

state all of his impairments, and that the ALJ should not have listed physical

limitations in the hypothetical if the ALJ believed Mr. Smith did not have any.

It is settled that the hypothetical question “must include all (and only) those

impairments borne out by the evidentiary record.”     Evans v. Chater , 55 F.3d 530,

532 (10th Cir. 1995). “[T]estimony elicited by hypothetical questions that do not


                                             -7-
relate with precision all of a claimant’s impairments cannot constitute substantial

evidence to support the [Commissioner’s] decision.”        Hargis v. Sullivan , 945 F.2d

1482, 1492 (10th Cir. 1991) (quotation omitted).

       The ALJ admits in his opinion that the hypothetical contained exertional

limits he did not find. Nonetheless, he gave the VE’s response great weight since

the non-exertional limits the ALJ found were included in the hypothetical. It is

unclear why the ALJ submitted, after the hearing and after a lengthy opportunity

to review all of the medical evidence,   6
                                             an interrogatory to the VE that did not

match precisely Mr. Smith’s impairments, particularly when the Appeals Council

had directed on both remands that any hypothetical questions set forth the specific

impairments reflected by the medical record. In any event, the inaccurate

hypothetical is not sufficient reason for remand. Instead, remand is appropriate

because it is unclear what level of jobs the ALJ actually determined Mr. Smith

could perform. The ALJ initially stated that Mr. Smith can perform a significant

range of light work, yet later stated he is not limited to light work. Aplt. App.,

tab 4 at 40. In his ultimate findings, the ALJ concluded Mr. Smith has the RFC



6
      The third ALJ hearing was held on October 20, 2000. The record was
reopened in April and July of 2001 to receive additional medical evidence.
Thereafter, on April 8, 2002, the ALJ sent interrogatories to the VE. The ALJ
therefore had ample opportunity to craft a hypothetical question setting forth
precisely the exertional and nonexertional impairments that the ALJ found
Mr. Smith to have.

                                              -8-
“to perform a significant range of work,” but does not define what that range of

work is. Id. at 41.

      Lastly, Mr. Smith contends that the hypothetical did not include all of his

limitations, including marginal functioning interrupted by episodes of

self-defeating action and the impairment of deficiency in immediate memory,

concentration and efficiency, even though the ALJ concluded Mr. Smith has

deficiencies of concentration, persistence or pace. The hypothetical did indicate

that Mr. Smith could adapt to a work setting, but the question did not incorporate

the more specific findings concerning concentration, persistence or pace.

Because the ALJ omitted, without explanation, impairments he found to exist,

the hypothetical question was flawed. Although the VE had copies of the exhibits

concerning Mr. Smith’s RFC, there is no indication the VE knew that the ALJ

had made a specific finding that was not included in the hypothetical question.

As indicated above, hypothetical questions should be crafted carefully to reflect

a claimant’s RFC, because “[t]estimony elicited by hypothetical questions that do

not relate with precision all of a claimant’s impairments cannot constitute

substantial evidence to support the [Commissioner’s] decision.”   Hargis , 945 F.2d

at 1492.

      Mr. Smith finally contends that the hypothetical question did not consider

whether the three jobs required verbal skills, math skills, or work knowledge–all


                                           -9-
areas in which he contends he has limitations. The record shows that Mr. Smith

completed the eighth grade, has some problems reading, and can do arithmetic

and make change. As the ALJ noted, Mr. Smith completed several SSI forms,

took intelligence tests, and read and completed reports as part of his past work.

The VE indicated that all three jobs he recommended are unskilled and that even

if Mr. Smith is illiterate he can do these unskilled jobs. Thus, we conclude the

ALJ did not err.

      Because the ALJ failed to follow correct legal standards or give sufficient

explanation supporting his RFC findings, we remand for further proceedings.

                                          II.

      Next, Mr. Smith argues that the ALJ failed to mention what specific

listing(s) the ALJ considered and failed to discuss why Mr. Smith did not meet

any listing(s). Mr. Smith maintains he meets the listing for mental retardation,

see 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05, based on his full scale I.Q. score

placing him in the borderline range of intellectual functioning and his limited

abilities with written instructions; understanding, remembering and carrying out

detailed instructions; and maintaining attention and concentration for extended

periods of time.

      “At step three, the ALJ determines whether the claimant’s impairment is

equivalent to one of a number of listed impairments that the [Commissioner]


                                         -10-
acknowledges as so severe as to preclude substantial gainful activity.”       Clifton v.

Chater , 79 F.3d 1007, 1009 (10th Cir. 1996) (quotation omitted). The listing

for mental retardation sets out four distinct ways to establish disability.

See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05(A)-(D). We focus here on listing

§ 12.05(C):   7
                  “[m]ental retardation refers to significantly subaverage general

intellectual functioning with deficits in adaptive functioning initially manifested

during the developmental period: i.e., the evidence demonstrates or supports

onset of the impairment before age 22”      8
                                                and “[a] valid verbal, performance, or

full scale IQ of 60 through 70 and a physical or other mental impairment

imposing an additional and significant work-related limitation of function.”

       Mr. Smith correctly argues that the ALJ did not specifically address listing

§ 12.05(C). The ALJ cites to the standard for evaluating mental evidence set

forth at 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C). The § 12.00(C) criteria

are appropriate for analyzing depression under listing § 12.04 and mental

retardation under § 12.05(D). But the ALJ did not, however, recognize that the

criteria for analyzing mental retardation under § 12.05(C) are different from those

for depression or mental retardation under § 12.05(D).         See Aplt. App., tab 4


7
       In the district court, Mr. Smith referred to listing § 12.05(C) as the relevant
listing. Aplt. App., tab 5 at 10.
8
      One mental health examiner noted that Mr. Smith’s cognitive functions had
been the same throughout his life.

                                            -11-
at 32, 37-38; 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A). Thus, it appears that

the ALJ did not consider § 12.05(C) when he considered whether Mr. Smith met

the listings. The ALJ’s failure to specifically address listing § 12.05(C) is, under

the facts of this case, reversible error, because we cannot engage in meaningful

judicial review.   Cf. Clifton , 79 F.3d at 1009 (holding that where ALJ does not

discuss reasons for deciding claimant is not disabled at step three, or even

identify relevant listings, and only summarily concludes claimant’s impairments

did not meet or equal listing, meaningful judicial review of conclusion is

impossible); see also Drapeau v. Massanari , 255 F.3d 1211, 1214 (10th Cir.

2001) (holding meaningful appellate review is impossible where it would require

drawing factual conclusions on ALJ’s behalf and court would not be reviewing

for substantial evidence).

       Mr. Smith believes that the ALJ failed at step three to fully consider the

opinions of his treating doctor, Dr. Davis, and erroneously rejected them without

finding conflicting medical evidence. We first consider whether Dr. Davis was a

treating doctor, see Doyal , 331 F.3d at 762, and conclude he was not. Mr. Smith

first mentioned Dr. Davis at the third ALJ hearing and provided no treatment

notes, even though Dr. Davis supposedly provided twenty years’ of treatment.

Thus, there is no evidence of an ongoing treatment relationship.   See 20 C.F.R.

§ 416.902 (defining “treating source”). Because Dr. Davis was not a treating


                                           -12-
doctor, his opinion is not entitled to controlling weight.   See Doyal , 331 F.3d

at 762-64.

         Even if Dr. Davis’s opinion is not entitled to controlling weight, his

opinion is entitled to deference and must be weighed using the following factors:

         (1) the length of the treatment relationship and the frequency of
         examination; (2) the nature and extent of the treatment relationship,
         including the treatment provided and the kind of examination or
         testing performed; (3) the degree to which the physician’s opinion is
         supported by relevant evidence; (4) consistency between the opinion
         and the record as a whole; (5) whether or not the physician is a
         specialist in the area upon which an opinion is rendered; and
         (6) other factors brought to the ALJ’s attention which tend to support
         or contradict the opinion.

Watkins v. Barnhart , 350 F.3d 1297, 1300-01 (10th Cir. 2003) (quotation

omitted). “[I]f the ALJ rejects the opinion completely, he must then give specific,

legitimate reasons for doing so.”     Id. at 1301 (quotations omitted). “A treating

physician’s opinion may be rejected if his conclusions are not supported by

specific findings.”   Castellano v. Sec’y of HHS , 26 F.3d 1027, 1029 (10th Cir.

1994).

         Dr. Davis completed a fill-in-the-blanks form indicating that Mr. Smith

suffered mild to marked impairments in understanding and memory, sustaining

concentration and persistence, social interaction and adaptation. Dr. Davis,

however, provided no explanation for these conclusions. Where a doctor’s report

consists solely of boxes checked on a form, the “evaluation forms, standing alone,


                                             -13-
unaccompanied by thorough written reports or persuasive testimony, are not

substantial evidence.”   Frey v. Bowen , 816 F.2d 508, 515 (10th Cir. 1987).

      The ALJ gave no weight to Dr. Davis’s opinion because any limitations he

expressed were based on Mr. Smith’s statements to him and not upon the results

of a professional treatment relationship, including examination or testing.

Indeed, the record fails to show any visits by Mr. Smith to Dr. Davis in an office

environment pursuant to an appointment.      See Doyal , 331 F.3d at 764. The ALJ

therefore gave specific, legitimate reasons for giving no weight to Dr. Davis’s

opinions.

                                           III.

      After three tries, the ALJ still failed to (1) present a hypothetical to the

VE that precisely set forth Mr. Smith’s physical and mental limitations; (2) follow

correct legal standards in analyzing the VE’s recommendations; (3) discuss what

Mr. Smith’s actually RFC is and why he found Mr. Smith’s RFC to be greater

than that listed in the hypothetical; and (4) mention the relevant listing(s) and

discuss why Mr. Smith did not meet the relevant listing(s). Accordingly, we

REVERSE the judgment of the district court and REMAND to the district court

with directions to remand to the Commissioner for further proceedings in

accordance with correct legal standards.


                                          ENTERED FOR THE COURT

                                          -14-
PER CURIAM




-15-
