                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 24 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TRACY K. BALTHROP,

                Plaintiff-Appellant,

    v.                                                    No. 04-7008
                                                    (D.C. No. 03-CV-260-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , HARTZ , and TYMKOVICH , 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      This order and judgment is not binding precedent, except under the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 Tracy Balthrop appeals from a district court order upholding the

Commissioner’s decision to deny disability insurance and supplemental security

income benefits. We affirm.

      The administrative law judge (ALJ) found that Plaintiff “has the following

impairments which are considered to be ‘severe’ under the Social Security Act

and Regulations: degenerative disc disease of the cervical and lumbar spine and

degenerative joint disease of the left wrist and left knee.” App. tab 3 at 17. The

ALJ found that these impairments left Plaintiff with a residual functional capacity

(RFC) to “lift and/or carry 10 pounds occasionally and five pounds frequently;

stand and/or walk two hours of an eight-hour workday; and sit six hours of an

eight-hour workday.”   Id. at 28. In addition, the ALJ found that Plaintiff “can sit

for 30 minutes at a time” and “is limited to only occasional handling (seizing,

holding, and turning) with the non-dominant left hand but can finger with the left

hand.” Id. The ALJ then determined that, although Plaintiff could not return to

his past work, he was still able to perform a significant number of jobs in the

economy, such as the positions of cashier and surveillance systems monitor that a

vocational expert had identified as consistent with the above RFC findings.

Accordingly, the ALJ denied benefits at step five of the sequential evaluation

process. The Appeals Counsel denied review, making the ALJ’s decision the

final decision of the Commissioner.


                                         -2-
      “We review the Commissioner’s decision to determine whether the correct

legal standards were applied and whether the Commissioner’s factual findings are

supported by substantial evidence in the record.”   Langley v. Barnhart , 373 F.3d

1116, 1118 (10 th Cir. 2004). But the scope of our review “is limited to the issues

the claimant properly preserves in the district court and adequately presents on

appeal.” Berna v. Chater , 101 F.3d 631, 632 (10 th Cir. 1996). Here, Plaintiff has

raised two issues: whether the ALJ improperly disregarded the opinions of two of

Plaintiff’s treating physicians, and whether the ALJ erred in omitting from

Plaintiff’s RFC any limitation regarding his use of his right hand.

                            Treating-Physician Opinions

      “In deciding how much weight to give a treating source opinion, an ALJ

must first determine whether the opinion qualifies for controlling weight.”

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

marks omitted). There are two qualifications, analyzed sequentially:

      An ALJ must first consider whether the opinion is well-supported by
      medically acceptable clinical and laboratory diagnostic techniques.
      If the answer to this question is “no,” then the inquiry at this stage is
      complete. If the ALJ finds that the opinion is well-supported, he
      must then confirm that the opinion is consistent with other
      substantial evidence in the record. In other words, if the opinion is
      deficient in either of these respects, then it is not entitled to
      controlling weight.

Id. (internal quotation marks and citations omitted).



                                           -3-
      If a medical opinion does not qualify for controlling weight, it is still

entitled to deference and must be evaluated in light of several factors set out in

20 C.F.R. §§ 404.1527(d) and 416.927(d).     1
                                                 This evaluation may lead the ALJ to

ascribe diminished weight to the opinion or reject it outright. In any event, the

ALJ must give “good reasons” for the decision “that are sufficiently specific to

make clear to any subsequent reviewers the weight [given] to the treating source’s

medical opinions and the reason for that weight.”      Robinson v. Barnhart , 366 F.3d

1078, 1082 (10 th Cir. 2004) (internal quotation marks omitted). If the ALJ

rejects the opinion, he or she must give “specific, legitimate reasons for doing

so,” which may not involve the ALJ’s own “speculative inferences from medical

reports.” Id. (internal quotation marks omitted). The ALJ may reject a treating

physician’s medical opinion “only on the basis of contradictory medical evidence




1
      A summary of these considerations is provided in Goatcher v. United States
Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995):

      (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.

                                           -4-
and not due to his or her own credibility judgments, speculation or lay opinion.”

Id. (internal quotation marks omitted).

       Plaintiff argues that the ALJ improperly discounted opinions expressed by

Dr. Stephen E. Smedlund, a neurologist, and Dr. Don Haworth, an osteopath.

       Doctor Smedlund saw Plaintiff from August 22 to October 3, 2001, on a

referral for low back pain radiating to the left leg as well as a herniated disc at

L2-3 and degenerative changes to the lumbar spine below that level. Examination

revealed a positive straight-leg-raising test; and an MRI done on September 24,

2001, showed a “[l]eft paracentral disc herniation at the level of L2/3 [that] . . .

encroaches into the left neural foramen,” App. tab 3 at 208, though an EMG and

nerve conduction study done on October 3 showed “no evidence for a lumbosacral

radiculopathy producing axonal nerve injury,”      id. at 187. In a letter written on

October 3, Dr. Smedlund “recommend[ed] that [Plaintiff] be seen by a spine

surgeon to address his herniated disc with a left lumbar radiculopathy,”     id. at 185,

but said nothing about functional impairment. The ALJ credited these reports of

Dr. Smedlund. The controversy here arises from the fact that also on October 3

Dr. Smedlund wrote this statement on a prescription pad under Plaintiff’s name:

“The above patient of mine has a herniated lumbar disk and significant back pain.

He is totally disabled and unable to be gainfully employed at this time. He needs




                                            -5-
a spine surgery consultation.”    Id. at 186. Plaintiff argues that the ALJ

improperly rejected this unequivocal statement regarding disability.

       The ALJ discounted this conclusory statement. The ALJ criticized the

opinion as contradicted by Dr. Smedlund’s “very own evaluation on that same

date, as well as other medical evidence in the file.”    Id. at 22. Plaintiff’s

challenge to this criticism may have merit.

       But the ALJ also rejected Dr. Smedlund’s opinion because “determinations

of disability are reserved for the Commissioner.”       Id. Doctor Smedlund’s opinion

does not address any particular functional limitations associated with Plaintiff’s

condition. There are no findings of any substance relating to such relevant

capacities as the ability to sit, stand, walk, lift, and carry. There is only the bald

conclusion that Plaintiff is totally disabled. Not only is that conclusion unhelpful

because of its uncertain medical meaning, but also it extends beyond the expertise

of a physician, since it requires an assessment of interrelated medical,

educational, and vocational factors. As the ALJ’s comment indicates, the

statement in question was not a “medical opinion,” that is, it was not a

“judgment[] about the nature and severity of [the claimant’s] impairment(s),

including [his] symptoms, diagnosis and prognosis, what [he] can still do despite

impairment(s), and [his] physical or mental restrictions,” 20 C.F.R.

§§ 404.1527(a)(2), 416.927(a)(2). Rather, it was an opinion on an “issue[]


                                             -6-
reserved to the Commissioner,” an “administrative finding[] . . . dispositive of a

case,” id. §§ 404.1527(e), (e)(1), 416.927(e), (e)(1). All the requirements

discussed earlier regarding how medical source opinions must be assessed apply

only to medical opinions. See id. §§ 404.1527(d), 416.927(d). In contrast, the

kind of extra-medical opinion involved here is “not give[n] any special

significance” in the disability analysis.   Id. §§ 404.1527(e)(3), 416.927(e)(3);   see

Social Security Ruling (SSR) 96-5p, 1996 WL 374183, at *5 (“even when offered

by a treating source, [bald opinions regarding disability] can never be entitled to

controlling weight or given any special significance”).

       Plaintiff’s objections to the handling of Dr. Smedlund’s opinion–that the

ALJ should have given it controlling weight or given specific legitimate reasons

for not doing so in light of the factors set out in the regulations–necessarily

assume that Dr. Smedlund stated a       medical opinion. As we have seen, he did not.

Thus, Plaintiff’s objections are inapposite.

       That said, we note that even opinions on administrative issues reserved to

the Commissioner are still evidence that cannot simply be disregarded.       See SSR

96-5p, 1996 WL 374183, at *5. But that is not what happened here. The ALJ

duly cited and discussed Dr. Smedlund’s opinion. The ALJ just concluded that

the relevant notes and tests did not require “such a pessimistic picture of




                                             -7-
Plaintiff’s health.” App. tab 3 at 22. That reflects an adequate consideration of

the evidence in question.

      We turn now to Dr. Haworth. Plaintiff had a silicone implant in his left

wrist and saw Dr. Haworth several times from March through May 2002 for

treatment of wrist pain and possible silicone synovitus. The implant was removed

in late April. The office records do not reflect any treatment for the degenerative

disc problems discussed above.

      Nevertheless, Dr. Haworth prepared a medical source statement for

Plaintiff reporting restrictions relating not only to his wrist but also to his ability

to walk, stand, and sit throughout the course of a workday. Of particular

significance here are restrictions limiting Plaintiff to sitting only two hours out of

an eight-hour day and requiring that he lie down during the day to manage pain.

See id. at 215-16 (also noting Plaintiff could walk or stand for less than an hour).

Such restrictions would preclude even sedentary work.       See Ragland v. Shalala ,

992 F.2d 1056, 1058 (10 th Cir. 1993); SSR 96-9p, 1996 WL 374185, at *3 ; SSR

83-10, 1983 WL 31251, at *5.

      The ALJ held that Dr. Haworth’s opinion regarding these critical postural

restrictions was not controlling and, indeed, was entitled to little weight. The

ALJ correctly noted that there was no evidence to suggest that this opinion was

based on clinical findings from Dr. Haworth’s own treatment of Plaintiff or on


                                           -8-
any documentation obtained from other medical sources. In fact, Dr. Haworth’s

only mention of the condition underlying the postural limitations was an

unexplained reference to “spinal stenosis” at the end of his medical source

statement. App. tab 3 at 216. The ALJ reasonably determined that Dr. Haworth’s

opinion was “clearly based in large part upon the claimant’s subjective

complaints, which [the ALJ] d[id] not find to be fully credible,”   id. at 22, and

Plaintiff does not challenge the ALJ’s credibility analysis here. The record and

applicable regulations support the ALJ’s decision to deny Dr. Haworth’s opinion

controlling weight because it was not “well-supported by medically acceptable

clinical and laboratory diagnostic techniques,” 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2). The regulations also support the ALJ’s decision to discount its

persuasive weight because of the limited nature of the underlying treatment

relationship and lack of supporting materials,    id. §§ 404.1527(d)(2), (3),

416.927(d)(2), (3).

                RFC – ALJ’s Assessment of Right Hand Function

       Plaintiff contends that the ALJ erred by failing to recognize a substantial

limitation on the use of Plaintiff’s right hand. We disagree. The medical records

consistently reflect that Plaintiff retains full strength and range of motion in his

right hand, which remains capable of both gross (grasping) and fine manipulation.

And the medical records are more corroborated than undercut by Plaintiff’s own


                                            -9-
description of his relevant physical activities, at the hearing,    see App. tab 3 at

275-77 (conceding he can open doors, do buttons, tie shoes, twist off bottle caps,

brush teeth, comb hair, and feed himself), and in written daily activity summaries,

see id. at 142-47 (August 2001 summary noting Plaintiff does household chores

for himself and even plays the guitar, depending on soreness in his         left wrist), see

also id. at 150 (February 2002 update noting no changes to daily activities).

Substantial evidence supports the ALJ’s rejection of a significant functional

limitation on Plaintiff’s use of his right hand.

       In sum, we must defer to the ALJ’s assessment of the opinions offered by

Dr. Smedlund and Dr. Haworth, and the record supports the ALJ’s rejection of

any substantial impairment associated with Plaintiff’s right hand. As these are the

only issues raised in this proceeding, the Commissioner’s determination of

nondisability and resultant denial of benefits must be upheld.

       The judgment of the district court is AFFIRMED.



                                                           Entered for the Court



                                                           Harris L Hartz
                                                           Circuit Judge




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