                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 10 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    STEPHINE KING,

                Plaintiff-Appellant,

    v.                                                   No. 04-7020
                                                  (D.C. No. CV-03-129-WH)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before McCONNELL , HOLLOWAY , and PORFILIO , 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      This order and judgment is not binding precedent, except under the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-appellant Stephine L. King appeals from an order of the district

court affirming the Commissioner’s decision denying her application for

Supplemental Security Income benefits. Ms. King alleged disability based on

depression, carpal tunnel syndrome, fascia rotator cuff repair, and knee surgery.

The agency denied her applications initially and upon reconsideration.

       After a remand from the Appeals Council and a second hearing before an

administrative law judge (ALJ), the ALJ determined that Ms. King retained the

residual functional capacity (RFC) to perform a significant range of sedentary

work and that she could perform a significant number of jobs in the national

economy. The ALJ therefore denied benefits for appellant, concluding that she

was not disabled at step five of the familiar sequential analysis.   See Williams v.

Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step sequential

process for evaluating claims for disability benefits). The Appeals Council

denied review, making the ALJ’s decision the Commissioner’s final decision.

       We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.     See Winfrey v. Chater, 92 F.3d 1017, 1019

(10th Cir. 1996). On appeal, Ms. King contends that the ALJ erred by failing to

properly consider the opinions of four of her treating physicians and by failing to




                                             -2-
provide specific, legitimate reasons for discounting those opinions.    1
                                                                            She assigns

further error to the ALJ’s assessment of her RFC, contending that his

determination that she could do a significant range of sedentary work was not

supported by substantial evidence. Because we conclude the ALJ did not follow

the correct legal standards in considering the opinions of Ms. King’s treating

physicians, we reverse and remand for further proceedings. We do not reach the

remaining issue raised by Ms. King because it may be affected by the ALJ’s

treatment of this case on remand.

       The Commissioner will generally give more weight to the opinion of a

treating source than to the opinion of a non-treating source.      Langley v. Barnhart ,

373 F.3d 1116, 1119 (10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2));         see

also 20 C.F.R. § 416.927(d)(2). The first step in the process of evaluating the

opinion of a treating source is to determine whether the opinion is entitled to

“controlling weight.”    Id. The analysis is sequential. An ALJ must first consider

whether the opinion is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques.” SSR 96-2p, 1996 WL 374188, at *2

(quotations omitted).



1
      Ms. King includes Dr. Black as one of the treating physicians whose
opinion was rejected by the ALJ. Because she does not advance any argument
regarding the ALJ’s treatment of Dr. Black’s opinion other than to note that it
was rejected, we will not analyze the ALJ’s treatment of his opinion in this case.

                                            -3-
       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.   Id. In other words, if the opinion
       is deficient in either of these respects, then it is not entitled to
       controlling weight.

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

       Even if a treating source’s opinion is not accorded controlling weight,

however, such an opinion is still entitled to deference and must be evaluated in

reference to the factors enumerated in 20 C.F.R. § 416.927.        Id. Those factors

are:

       (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.

Langley, 373 F.3d at 1119 (quoting 20 C.F.R. § 416.927).

       After performing this analysis, the ALJ must announce good reasons for the

weight assigned to the opinion of a treating physician.       Id. Such reasons must be

“sufficiently specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the reasons for that

weight.” SSR 96-2p, 1996 WL 374188, at *5. Of course, an ALJ is permitted to



                                            -4-
reject entirely the opinion of a treating physician; if he does so, however, he must

provide specific, legitimate reasons for that rejection.   Watkins , 350 F.3d at 1301.


                         Opinions of Dr. Ashley and Dr. Cooper

       In considering the opinions of Ms. King’s treating physicians, the ALJ

lumped the opinions of Dr. Ashley and Dr. Cooper together. Since the two

physicians treated Ms. King for entirely different conditions, we do not find this

approach helpful, and we will discuss the two opinions separately where

appropriate.

       Dr. Ashley began treating Ms. King for her mental impairments in October

1998 when she presented with a prior diagnosis of bipolar disorder from a

Dr. Browning. Dr. Ashley diagnosed her with depression and carpal tunnel. Aplt.

App. at 348. He discontinued her prescription for Paxil and, instead, prescribed

Prozac for her depression.     Id. Dr. Ashley reiterated his earlier diagnosis of

depression when he saw Ms. King in November 1998,          id. at 345, and again in

January 1999, id. at 342. In completing a mental Medical Source Statement in

September 1999, Dr. Ashley concluded that Ms. King had bipolar disorder, had

not responded to treatment, and was severely depressed.       Id. at 471. Additionally,

Dr. Ashley noted that Ms. King had marked impairment in ability to remember

locations and work-like procedures; to understand, remember, and carry out very

short and simple instructions or very detailed instructions; to maintain attention

                                             -5-
and concentration for extended periods; to perform activities within a schedule,

maintain regular attendance, and be punctual within customary tolerances; to

complete a normal work day and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods. She further had marked

impairments in the ability to respond appropriately to changes in the work setting;

to be aware of normal hazards and take appropriate precautions; to travel in

unfamiliar places or use public transportation; and to set realistic goals or make

plans independently of others.    Id. at 470-71.

       Ms. King further exhibited moderate impairment in ability to sustain an

ordinary routine without special supervision; to work in coordination with or

proximity to others without being distracted by them; to make simple work-related

decisions; to interact appropriately with the general public; and to ask simple

questions or request assistance. She was also moderately impaired in her ability

to accept instructions and respond appropriately to criticism from supervisors; to

get along with coworkers or peers without distracting them or exhibiting

behavioral extremes; and to maintain socially appropriate behavior and adhere to

basic standards of neatness and cleanliness.         Id. In February and August 2000,

Dr. Ashley again diagnosed depression and bipolar disorder.         Id. at 496, 535.




                                               -6-
      Dr. Cooper was the treating physician who dealt with Ms. King’s physical

impairments. He diagnosed her as suffering from chronic pain, arthritis,

degenerative joint disease, hypertension, hearing loss, and shoulder impingement.

Aplt. App. at 474-75, 477. He also diagnosed her with depression.   Id. at 477.

Dr. Cooper’s physical Medical Source Statement summarizes Ms. King to be

      limited to frequently lifting and/or carrying five to ten pounds;
      occasionally lifting and/or carrying ten pounds; standing and/or
      walking about two hours in an eight-hour workday, continuously for
      ten to fifteen minutes; sitting about two hours in an eight-hour work
      day, continuously for one hour. King’s symptoms require her to lie
      down to manage pain. King is limited in her ability to push and pull
      and cannot exceed ten pounds of force. King may never climb,
      stoop, kneel, crouch, or crawl. King may occasionally balance. King
      is limited in her ability to reach, handle, finger, and feel. She is
      unlimited in her ability to see and speak. Environmental restrictions
      include machinery, temperature extremes, fumes, and vibration.
      King has limitations of neck, shoulders, wrist, and hips. Patient has
      chronic pain from degenerative disc disease, shoulder impingement,
      and bilateral carpal tunnel syndrome.

Id. at 472-73. Both Dr. Ashley and Dr. Cooper were of the opinion that Ms. King

could not work. Dr. Ashley cited her severe depression and Dr. Cooper her other

“multiple complicated medical problems.”         Id. at 479.

      In refusing to give the opinions of either Dr. Ashley or Dr. Cooper

controlling weight, the ALJ stated:

      It would appear that these functional limitations are based on the
      claimant’s subjective complaints and are more an act of courtesy to a




                                           -7-
       patient of long-standing, rather than a genuine medical assessment of
       discrete functional limitations based upon clinically established
       pathologies.

Aplt. Br., tab 1, at 6.

       After reviewing the activities Ms. King admitted to being able to engage in,

the ALJ reported himself “not overly moved” by the opinions of the treating

physicians and concluded that “the assessments of Drs. Cooper and Ashley are

unsupported by, and that it is [sic] inconsistent with, the credible evidence of

record, and I decline to give them controlling weight.”       Id.

       Neither the ALJ nor the district court had the advantage of our recent

opinion in Langley when considering this case. In         Langley , we made it clear that

it is incumbent upon an ALJ who refuses to assign controlling weight to the

opinion of a treating physician to go further and determine what weight, if any,

such an opinion is to be accorded.    Langley , 373 F.3d at 1120, 1123. Just as the

ALJ did in Langley , the ALJ here refused to give the opinions of Dr. Ashley and

Dr. Cooper controlling weight. He then failed, however, to discuss what lesser

weight should be given those opinions in light of the relevant factors set out in

20 C.F.R. § 416.927(d)(2). This is error requiring remand for further explanation

by the ALJ.

       The ALJ further erred by rejecting the opinions of Dr. Ashley and

Dr. Cooper as inconsistent with the credible evidence of record without identifying


                                            -8-
what that inconsistent record evidence is. The ALJ simply pointed to evidence

regarding Ms. King’s daily activities as the basis upon which to reject these two

opinions. We do not view that evidence, however, as inconsistent–particularly

with the significant mental impairments established in the record.

      The ALJ cited evidence that Ms. King did housework, and laundry, cooked,

fished, and shopped (albeit with family members), took care of her personal needs,

created art, studied and received a GED   2
                                              , watched television, made her bed, read

and visited family. We are unable to conclude, however, that these activities

represent substantial evidence inconsistent with the impairments and limitations

identified by both Dr. Ashley and Dr. Cooper. Ms. King could well be able to

engage in these kinds of tasks and still have the marked to moderate impairments

identified in the mental Medical Source Statements of Dr. Ashley and Dr. May and

the limitations noted in the physical Medical Source Statement of Dr. Cooper.

      Again, as in Langley , “[b]ecause the ALJ failed to explain or identify what

the claimed inconsistencies were between [the opinions of Dr. Ashley and

Dr. Cooper] and the other substantial evidence in the record, his reasons for

rejecting [those] opinions are not ‘sufficiently specific’ to enable this court to




2
       We note that Ms. King finally earned a GED after studying for four years,
Aplt. App. at 367, and after failing the exam at least four previous times, id. at
405.

                                              -9-
meaningfully review his findings.”     Langley , 373 F.3d at 1123 (quoting    Watkins ,

350 F.3d at 1300).

      Finally, the ALJ erred in concluding that the opinions of Dr. Ashley and

Dr. Cooper were based only on Ms. King’s subjective complaints and were “act[s]

of courtesy to a patient of long-standing, rather than a genuine medical assessment

of discrete functional limitations based upon clinically established pathologies.”

Aplt. Br., tab 1, at 6. This statement is virtually identical to the boilerplate

language this court condemned in     Langley. As in Langley , there is no evidentiary

basis here for either of these findings. There is nothing to indicate that Dr. Ashley

or Dr. Cooper relied solely on subjective complaints or that their opinions were

produced merely as an act of courtesy to Ms. King.

      “In choosing to reject the treating physician’s assessment, an ALJ may not

make speculative inferences from medical reports and may reject a treating

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).

And this court “held years ago that an ALJ’s assertion that a family doctor

naturally advocates his patient’s cause is not a good reason to reject his opinion as

a treating physician.” Id. at 1253 (citing Frey v. Bowen, 816 F.2d 508, 525 (10th

Cir. 1987)).


                                           -10-
      Thus, the ALJ did not follow the correct legal standards in considering the

opinions of Dr. Ashley and Dr. Cooper, nor are the ALJ’s reasons for completely

rejecting those opinions supported by substantial evidence.


                                 Opinion of Dr. May

      Dr. May diagnosed Ms. King with unspecified psychosis, major recurrent

depression, and a history of anxiety. Aplt. App. at 608. In his mental Medical

Source Statement, Dr. May reached conclusions substantially similar to those of

Dr. Ashley regarding Ms. King’s marked impairments. He indicated that Ms. King

had marked impairment in her ability to understand, remember and carry out

detailed instructions; to maintain attention and concentration for extended periods

of time; to perform activities within a schedule, and to maintain regular

attendance, and be punctual within customary tolerances. She further exhibited

marked impairment in the ability to complete a normal work day and workweek

without interruptions from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest periods. Her

ability to interact appropriately with the general public, to respond appropriately to

changes in work setting, and to travel in unfamiliar places or use public

transportation was also markedly impaired.          Id. at 606-07.




                                             -11-
       In rejecting Dr. May’s opinion the ALJ stated:

       I find that Dr. May’s assessment is deficient, without supportive
       medical documentation. His only written comments were that the
       claimant was functionally limited, but he did not describe a medically
       determinable impairment that could reasonably cause such limitations.
       He provided no clinical signs in support of his conclusions. He did
       not refer to reports of individual providers, hospitals, or clinics, and
       he did not indicate on what basis, if any, his treatment of the claimant
       would support his conclusions. His assessment is clearly based on the
       claimant’s subjective complaints, which I do not find to be fully
       credible.

Aplt. Br., tab 1, at 7.

       This conclusion is unsupported by substantial evidence. Initially, there is

abundant supportive medical documentation in the record from other treating

sources that is consistent with Dr. May’s opinion.   3
                                                         The ALJ also apparently

overlooked a medical exam form in which Dr. May diagnosed Ms. King with

unspecified psychosis, major recurrent depression, and a history of anxiety.

Aplt. App. at 608. He recommended medications to control her psychosis and her

moods. Id. We view those conditions as medically determinable impairments that

could reasonably cause the limitations identified by Dr. May in his mental Medical



3
       In addition to the notes and opinions from Dr. Ashley, other evidence in the
record indicates that Ms. King was treated as an inpatient for bipolar disorder in
October 1995. Aplt. App. at 339. She was treated twice in 1999 on an outpatient
basis for treatment of depression.    Id. at 340. She was repeatedly diagnosed as
suffering from bipolar disorder.    Id. at 358, 359, 367, 430. In 1997, after she
moved from Ada, Oklahoma, to Lake Texoma, a new doctor diagnosed Ms. King
with bipolar disorder and depression.     Id. at 468.

                                           -12-
Source Statement. Further, as a treating physician, Dr. May had the opportunity to

observe Ms. King and her various signs and symptoms. As we have recently

reiterated, “‘a psychological opinion may rest either on observed signs and

symptoms or on psychological tests.’”    Langley , 373 F.3d at 1122 (quoting

Robinson v. Barnhart , 366 F.3d 1078, 1083 (10th Cir. 2004)). As such, Dr. May’s

observations about Ms. King’s functional limitations constitute specific medical

findings. Id.

      A second error occurred when the ALJ failed to discuss what lesser weight,

if any, should be given Dr. May’s opinion pursuant to 20 C.F.R. § 416.927(d)(2).

As with the treatment of the opinions of Dr. Ashley and Dr. Cooper, the ALJ must

provide a further explanation for our review.

      Finally, the ALJ’s comment that Dr. May’s assessment is based on Ms.

King’s subjective complaints is unsupported by substantial evidence. Again as

with Dr. Ashley and Dr. Cooper, there is no evidence that Dr. May relied solely on

Ms. King’s subjective complaints. As for the ALJ’s finding that those complaints

are not totally credible, we note that this statement is contradicted by his later

conclusion that Ms. King is “generally credible in her testimony concerning her

mental impairments.” Aplt. Br., tab 1, at 9.

      In summary, the ALJ erred when, after refusing to give the opinions of three

of Ms. King’s treating physicians controlling weight, he failed to articulate what


                                          -13-
weight, if any, he gave to those opinions. We cannot simply presume the ALJ

applied the correct legal standards in considering those opinions.     See Watkins ,

350 F.3d at 1301. We must remand because we cannot meaningfully review the

ALJ’s determination absent findings explaining the weight assigned to the treating

physicians’ opinions.   See, e.g., Drapeau v. Massanari     , 255 F.3d 1211, 1214 (10th

Cir. 2001).

       The judgment of the district court is REVERSED, and this cause

REMANDED with instructions to remand to the Commissioner for further

proceedings consistent with this order and judgment.



                                                        Entered for the Court



                                                        William J. Holloway, Jr.
                                                        Circuit Judge




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