                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     December 26, 2006
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


    K A TH Y A . PEC K,

          Plaintiff-Appellant,
    v.                                                    No. 05-4090
    JO A NN E B. BA RN HA RT,                     (D.C. No. 04-CV-231-DAK)
    Commissioner of Social Security,                       (D. Utah)

          Defendant-Appellee,




                             OR D ER AND JUDGM ENT *


Before BRISCO E, HO LLO W AY, and M cCO NNELL, Circuit Judges.


         Kathy Peck appeals from the district court’s order affirming the

Commissioner of Social Security’s determination that she is not entitled to

disability insurance benefits under Title II of the Social Security Act.

Specifically, Peck contends that the ALJ erred by: (1) failing to evaluate whether

she met the requirements for mental retardation under Listing 12.05(C), even

though the ALJ made all the necessary findings to conclude that she met the


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
listing; and (2) not providing specific, legitimate reasons for rejecting her treating

physician’s opinion concerning her physical limitations. W e exercise jurisdiction

pursuant to 42 U .S.C. § 405(g) and 28 U.S.C. § 1291. W e affirm in part, reverse

in part, and remand.

                                          I.

                                          A.

      On M arch 14, 2002, Peck filed an application for disability insurance

benefits, claiming disability as of M arch 3, 2001, due to suspected multiple

sclerosis, cervical disc disease with chronic neck pain, anxiety related disorders,

heart problems, and borderline intellectual functioning. 1 The application was

denied both initially and upon reconsideration. At Peck’s request, an

administrative law judge (“ALJ”) held a hearing on June 3, 2003, at which Peck

and her non-attorney representative were present. On July 23, 2003, the ALJ

rendered a decision in which he determined that Peck was not under a “disability”

as defined by the Social Security Act. Aplt. App. at 24. After the ALJ’s

unfavorable decision, Peck requested review by the Appeals Council. The

Appeals Council denied Peck’s request for review on January 12, 2004, rendering

the ALJ’s decision the final decision of the Commissioner of Social Security




1
       The administrative law judge’s decision classified Peck’s alleged
impairments as multiple sclerosis, brain lesions, failed cervical fusion, bone
spurs, panic attacks, anxiety attacks, and migraine headaches. Aplt. A pp. at 24.

                                          -2-
(“Commissioner”). Id. at 14. On M arch 8, 2005, the district court issued an order

summarily concluding that the Commissioner’s decision was supported by

substantial evidence and free of legal error. Id. at 7-8. Peck filed a timely appeal

on April 25, 2005. See Fed. R. App. P. 4(a)(1)(B).

                                         B.

      “The Secretary [of Health and Human Services] has established a five-step

sequential evaluation process for determining whether a claimant is disabled.”

W illiams v. Bowen, 844 F.2d 748, 750 (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. Those five steps are as follow s:

      (1) A person who is working is not disabled.

      (2) A person who does not have an impairment or com bination of
      impairments severe enough to limit the ability to do basic w ork
      activities is not disabled.

      (3) A person whose impairment meets or equals one of the impairments
      listed in the regulations is conclusively presumed to be disabled.

      (4) A person who is able to perform work she has done in the past is not
      disabled.

      (5) A person whose impairment precludes performance of past work is
      disabled unless the [Commissioner] demonstrates that the person can
      perform other work. Factors to be considered are age, education, past
      work experience, and residual functional capacity.

Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988) (citing 20 C.F.R. §

416.920(a)-(f)) (citations omitted).


                                         -3-
      At step one, the ALJ concluded that Peck had not engaged in substantial

gainful activity since her alleged onset date of disability, M arch 3, 2001. Aplt.

App. at 31. At step two, the ALJ concluded that Peck suffered from the following

severe impairments which significantly limited her ability to perform basic w ork

activities: anxiety related disorders and status post cervical fusion with chronic

neck pain. Id. at 25-31. The ALJ determined that Peck’s alleged multiple

sclerosis and heart problems could not be considered severe impairments. Id. at

25. At step three, the ALJ concluded that Peck’s severe impairments were not

attended with the specific clinical signs and diagnostic findings required to meet

or equal the requirements set forth in the Listing of Impairments. Id. At step

four, the ALJ concluded that, based on Peck’s residual functional capacity (RFC)

to perform unskilled, sedentary work, Peck w as unable to perform her past

relevant work. Id. at 32. Finally, at step five, the ALJ concluded that other jobs

existed in significant numbers that Peck could perform based on her medically

determinable impairments, functional limitations, age, education, and work

experience. Id. at 31-32. As a result, the ALJ concluded that Peck was not

“disabled” within the meaning of the Social Security Act. Id. at 32.

                                          II.

                                          A.

      “The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence, and whether

                                         -4-
she applied the correct legal standards.” Grogan v. Barnhart, 399 F.3d 1257,

1261 (10th Cir. 2005). “Substantial evidence . . . is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Id. Our

review entails a thorough examination of the record to ensure that the

substantiality test has been met, but we may “‘neither reweigh the evidence nor

substitute our judgment for that of the agency.’” Id. at 1262; W hite v. Barnhart,

287 F.3d 903, 905 (10th Cir. 2002) (quoting Casias v. Sec'y of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991)).

                                          B.

      On appeal, Peck contends that we should order immediate payment of

benefits because she meets the requirements for mental retardation under Listing

12.05(C). Specifically, Peck argues that, although the A LJ made the necessary

findings to conclude that she met Listing 12.05(C), the ALJ failed “to make the

obvious conclusion” that she met Listing 12.05(C), or for that matter, to even

“mention” the listing in the decision. Aplt. Br. at 8, 10.

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

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

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

Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (citation and internal quotation

marks omitted). Peck has the “step three burden to present evidence establishing



                                          -5-
her impairments meet or equal listed impairments.” Fischer-Ross v. Barnhart,

431 F.3d 729, 733 (10th Cir. 2005). To satisfy this burden, Peck must establish

that her impairment “meet[s] all of the specified medical criteria. An impairment

that manifests only some . . . criteria, no matter how severely, does not qualify.”

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

      The listing for mental retardation, Listing 12.05, provides in relevant part:

      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.

      The required level of severity for this disorder is met when the
      requirements in A, B, C, or D are satisfied.

      ...

      C . 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[.]

20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.05(C); see Brown v. Sec’y of Health

and Human Servs., 948 F.2d 268, 270 (6th Cir. 1991) (“The Secretary, in

promulgating Listing 12.05(C), expressly singled out individuals w ith M ild

M ental Retardation for special treatment in determining entitlements to disability

benefits.”).

      W e have held, as have other circuit courts, that a claimant’s burden under

Listing 12.05(C) is twofold: (1) “[a] valid verbal, performance, or full scale IQ of

60 through 70”; and (2) “a physical or other mental impairment imposing

                                          -6-
additional and significant work-related limitation of function.” See, e.g., Hinkle

v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997); Barron v. Sullivan, 924 F.2d 227,

229 (11th Cir.), reh’g en banc denied, 933 F.2d 1023 (11th Cir. 1991); Selders v.

Sullivan, 914 F.2d 614, 619 (5th Cir. 1990). Peck correctly argues that the ALJ

made the necessary findings to meet these two requirements.

      On M ay 24, 2002, Dr. David Ericksen performed a consultive evaluation on

Peck, noting that Peck alleged “disability due to anxiety and cognitive

dysfunction.” Aplt. App. at 240-44. In particular, Dr. Ericksen administered the

W echsler Adult Intelligence Scale-III (W AIS-III). Dr. Erickson reported that, on

the W AIS-III, Peck obtained a verbal IQ score of 71, a performance IQ of 74, and

a full scale IQ score of 70. Id. at 242. The applicable regulations direct our

attention to the lowest of the three scores: “In cases w here more than one IQ is

customarily derived from the test administered, i.e., where verbal, performance,

and full-scale IQs are provided as on the W AIS, the lowest of these is used in

conjunction with 12.05.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(D )(6)(c).

The ALJ’s decision recognized Peck’s full scale score of 70 under the W AIS-III.

Aplt. App. at 29. Thus, Peck meets the valid IQ score requirement for Listing

12.05(C ).

      Listing 12.05(C) also requires that the claimant have a physical or other

mental impairment imposing additional and significant work-related limitation of

function. “[A] ‘significant limitation’ of function for purposes of § 12.05(C)[] is

                                         -7-
one that has more than a slight or minimal effect on the claimant’s ability to

perform basic work.” Hinkle, 132 F.3d at 1352 (citation omitted). The limitation

“‘need not be disabling in and of itself’” because this would render the

requirement meaningless. Id. at 1352-53. In Hinkle, w e held that this

requirement “should ‘closely parallel’ the step two standard,” i.e., “whether the

claimant has an ‘impairment or combination of impairments w hich significantly

limits [her] . . . ability to do basic work activities.’” Id. (citations omitted). But

we also noted that “a claimant’s inability to perform h[er] past relevant work [at

step four] would meet” this standard. Id. at 1353 n.4.

      The ALJ concluded at step two that Peck suffered from severe impairments

which combined to significantly limit her ability to perform basic work related

functions. Aplt. App. at 31. The ALJ determined that Peck had the following

severe impairments: anxiety related disorders and status post cervical fusion with

chronic neck pain. Id. at 25. Additionally, the ALJ concluded at step four that

Peck was limited to sedentary, unskilled work, and, as a result, she was unable to

perform her past relevant work. Id. at 30, 32. Based on the ALJ’s findings, Peck

meets the additional significant impairment requirement under Listing 12.05(C ).

      Even though the evidence supports Peck’s argument that she meets or

equals one of the impairments listed in the regulations – Listing 12.05(C) – the

ALJ did not discuss this listing or his reasons for rejecting its applicability to

Peck, beyond his statement that “[t]he exhibits and testimony do not establish that

                                           -8-
a listing is met or equaled in this case.” 2 Id. at 31-32. This sort of “bare

conclusion is beyond meaningful judicial review,” because “[i]n the absence of

ALJ findings supported by specific weighing of the evidence, we cannot assess

whether relevant evidence adequately supports the ALJ's conclusion that

appellant's impairments did not meet or equal any Listed Impairment, and whether

he applied the correct legal standards to arrive at that conclusion.” Clifton, 79

F.3d at 1009. To determine w hether substantial evidence supports the ALJ’s

decision, “in addition to discussing the evidence supporting his decision, the ALJ

also must discuss the uncontroverted evidence he chooses not to rely upon, as

well as significantly probative evidence he rejects.” Id. at 1010.

      The record here is devoid of any discussion as to why the ALJ considered

the evidence of Peck’s IQ and additional significant impairment insufficient to

satisfy Listing 12.05(C). W ithout more, we cannot review the basis of the A LJ’s

decision or determine whether substantial evidence supports it.

      It is possible that the A LJ’s error resulted from Peck’s representative’s

apparent concession that Listing 12.05(C) did not apply to her case:

      And one other issue that m ay or may not be related to demyelinating
      [sic] process. In the psychological evaluation . . . that was performed
      by Dr. David Erickson, there was some interesting results . . . . She had
      a full-scale IQ score of 70. V erbal IQ of 71. Performance IQ of 74.
      So again, if there were other correlating information, then I would be



2
      The only specific listings that the ALJ considered were Listings 1.04,
12.02, 12.04, and 12.06, but not 12.05(C). A plt. A pp. at 25-26.

                                          -9-
      arguing listing 12.05 in terms of that 70–the decreased function, the
      intellectual difficulties. But from her own report, even though she
      dropped out of school in the tenth grade, she was doing okay in school
      up to that point. And in terms of–it’s really arguing that there’s m ild
      m ental retardation, there isn’t necessarily direct evidence to support
      that diagnosis. However, that decreased IQ, is certainly an ongoing
      problem. That report from Dr. Erickson also outlines the difficulties
      that she has been having with memory. He mentions throughout the
      report that she gave good effort. That she kept on trying even when
      parts of the testing seemed somewhat overw helming, but the problems
      were quite evident in his summary. He goes through and mentions that
      results suggested intellectual functioning at the level of the bottom four
      percent of the population. So it was somewhat better memory and
      learning w ithin the range of the bottom 20 percent. M entions that the
      ability to understand, remember, and sustain concentration was
      moderately impaired.

Aplt. App. at 378-79 (emphasis added). As an initial matter, the representative’s

statement is not a clear-cut concession. The representative’s statement comes

close to admitting that Peck’s impairments do not satisfy Listing 12.05(C), but

does not actually go that far.

      Even if the representative’s comment is reasonably read as a concession,

the Social Security Act still requires that the ALJ state the factual basis for

concluding that a seemingly relevant listing does not apply:

      Any such decision by the Commissioner of Social Security which
      involves a determination of disability and which is in whole or in part
      unfavorable to such individual shall contain a statem ent of the case, in
      understandable language, setting forth a discussion of the evidence, and
      stating the Commissioner's determination and the reason or reasons
      upon which it is based.

See 42 U.S.C. § 405(b)(1) (emphases added). In this case, the ALJ made no

findings specifically concerning Listing 12.05(C). As a consequence, we are left

                                          -10-
to speculate why the ALJ concluded that Listing 12.05(C) did not apply, i.e

whether the ALJ relied on the representative’s apparent concession or

independently concluded that the evidence did not warrant a finding of disability

at step three. As this case is presently presented, we cannot determine whether

the ALJ’s “factual findings are supported by substantial evidence.” Clifton, 79

F.3d at 1009.

      In response, the Commissioner asks that we not remand the case, because

there was no evidence that Peck met the capsule definition of mental retardation

found in the opening paragraph of § 12.05, which requires that the claimant must

have suffered “deficits in adaptive functioning initially manifested during the

developmental period; i.e., the evidence demonstrates or supports onset of the

impairment before age 22.” The regulations explain that the introductory

paragraph to Listing 12.05 (hereinafter “the capsule definition”) imposed

additional requirements, which the claimant must satisfy to meet his or her burden

under Listing 12.05(C):

      Listing 12.05 contains an introductory paragraph with the diagnostic
      description for mental retardation. It also contains four sets of criteria
      (paragraphs A through D). If your impairment satisfies the diagnostic
      description in the introductory paragraph and any one of the four sets
      of criteria, we will find that your impairment meets the listing.

20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(A) (emphasis added).

      The Commissioner’s argument ignores our ruling in Clifton where we held

that we can only review ALJ decisions that make specific findings on the facts of

                                         -11-
the case. See 79 F.3d at 1009-10. If Peck does not meet the capsule definition,

then the ALJ must make that determination in the first instance.

      In the alternative, the Commissioner argues that the ALJ’s failure to make

findings on Listing 12.05(C) is harmless error. W e have recognized that ALJ

decisions may be subject to a harmless error analysis, allowing the court to affirm

an ALJ’s decision – despite an ALJ’s error at step three – “when confirmed or

unchallenged findings made elsewhere in the ALJ's decision confirm the step

three determination under review.” Fischer-Ross, 431 F.3d at 734. Those

findings must “conclusively preclude Claimant's qualification under the listings at

step three” such that “‘no reasonable administrative factfinder, following the

correct analysis, could have resolved the factual matter in any other way.’” Id. at

733-34, 735 (citations omitted).

      The Commissioner points to various facts in the record concerning Peck’s

tenth grade education, vocational training, driver’s license, role in the family as

financial manager, and past jobs to show that Peck’s deficits in adaptive

functioning did not initially manifest during the developmental period. W hile

these facts may cut against a finding that Peck satisfied the capsule definition,

they by no means conclusively resolve the question one way or the other. Indeed,

the best that the Commissioner can say is that the evidence “does not indicate the

presence of deficits in adaptive functioning before the age of 22 that would




                                         -12-
support a presumptive finding of disabling mental retardation.” Aple. Br. at 29-

30.

      The only portion of the ALJ’s decision potentially touching on the timing

of Peck’s cognitive deficits is that there was “no evidence of an underlying,

chronic disorder of at least 2 years’ duration resulting in documented episodes of

decompensation, medical history of functional limitations, or evidence of a highly

supported living arrangement.” Aplt. App. at 26. W hen making this finding,

however, the A LJ was discussing organic mental disorders and affective disorders

under Listings 12.02 and 12.04, thereby giving no confirmation to a conclusion

either w ay on mental retardation, which is a separate mental impairment.

      W e therefore reverse and remand to the district court with direction to

remand the case to the ALJ for further proceedings to determine whether Peck has

an impairment that meets or equals Listing 12.05(C). Although Peck asks us to

order an immediate payment of benefits because “the ALJ made all of the findings

necessary to conclude that M s. Peck’s impairments meet the requirements of

Listing 12.05(C),” we are hesitant to assume the role of fact-finder in the first

instance. H ere, the A LJ made no findings regarding Listing 12.05(C) and we

must remand to afford the ALJ that opportunity. See W illiams, 844 F.2d at 760.

                                          C.

      Peck also argues that the ALJ failed to provide specific, legitimate reasons

for rejecting Dr. Sundwall’s opinion that she needs to lie down at least six hours

                                         -13-
in an eight-hour workday, she requires an unscheduled break every twenty to

thirty minutes, and she would miss more than four days of work per month. Peck

maintains that Dr. Sundw all’s conclusions are entirely supported by the record,

and should have been included in the ALJ’s RFC assessment.

      The ALJ must give “controlling weight” to the treating physician’s opinion,

provided that opinion is “well supported by clinical and laboratory diagnostic

techniques and . . . is not inconsistent with other substantial evidence in the

record.” Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1029

(10th Cir. 1994). An example of such an opinion concerns the “nature and

severity of the claimant’s impairments including the claimant’s symptoms,

diagnosis and prognosis, and any physical or mental restrictions.” Id. (citation

omitted).

      “A treating physician’s opinion may be rejected, but if it is rejected, the

[ALJ] must give specific, legitimate reasons for his action.” Reyes, 845 F.2d at

245 (citation omitted). An ALJ may not reject a treating physician’s opinion

based on “‘his or her own credibility judgments, speculation, or lay opinion.’”

M cGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (quoting M orales v.

Apfel, 225 F.3d 310, 317 (3d Cir. 2000)) (emphasis omitted). Further, if the ALJ

decides that a treating source’s opinion is not entitled to controlling weight, he

must still determine the weight it should be given after considering: (1) the length

of the treatment relationship and the frequency of examination; (2) the nature and

                                         -14-
extent of the treatment relationship, including the treatment provided and the kind

of examination or testing performed; (3) the degree to w hich the treating source’s

opinion is supported by objective evidence; (4) whether the opinion is consistent

with the record as a whole; (5) w hether or not the treating source is a specialist in

the area upon which an opinion is given; and (6) other factors brought to the

ALJ’s attention which tend to support or contradict the opinion. 20 C.F.R. §

404.1527(d)(2)-(6).

      On M arch 17, 2003, Dr. Sundw all completed a questionnaire concerning

Peck’s impairments. Aplt. App. at 288-89. He diagnosed Peck with suspected,

but unproven multiple sclerosis, cervical disc disease, and chronic pain in the

arms, and legs. Id. at 288. Due to these impairments he opined that Peck

suffered from the following limitations: unable to walk more than a block without

severe pain; unable to sit for more than thirty minutes at one time; unable to stand

for more than twenty minutes at one time; needs to recline or lie down for at least

six hours in an eight hour work day; unable to sit more than two hours in an eight

hour work day; unable to stand more than two hours in an eight hour work day;

requires a job that permits shifting positions at will from sitting, standing, or

walking; needs to take unscheduled breaks every twenty to thirty minutes in an

eight hour w orkday; occasionally able to lift and carry ten pounds; and never able

to lift or carry more than twenty pounds. Id. at 288-89. Dr. Sundw all further




                                          -15-
opined that Peck was likely to be absent from work more than four times a month.

Id. at 289.

       In determining Peck’s RFC at step four, the ALJ listed the functional

limitations reported by Dr. Sundw all, and then stated:

       In support of these restrictions, Dr. Sundwall attached Dr. Apfelbaum’s
       letter, . . . and some brief office notes, mostly detailing the claimant’s
       medications. He added that the claimant cannot sit or walk more than
       2 hours in an 8-hour day, total, because her right leg is weak and she
       gets stiff and numb w hen sitting. He did not further explain how these
       symptom s mandated 6 or more hours a day of lying down or reclining.
       His office notes contained no indication that he conducted any tests.
       Finally, Dr. Apfelbaum’s conclusions do not appear to justify these
       limitations, to the extent described by Dr. Sundwall. However, the
       undersigned does agree that the claimant has significant physical and
       mental limitations, i.e., severe impairments.

Id. at 29.

       Peck correctly asserts that an ALJ must provide specific and legitimate

reasons for rejecting the opinion of a treating physician. Here, the ALJ did not

specifically identify how each limitation provided in Dr. Sundw all’s opinion was

inconsistent with other medical evidence in the record, but our case law does not

require that degree of detail. See Clifton, 79 F.3d at 1009-10 (stating that while

“[t]he record must demonstrate that the ALJ considered all of the evidence, . . . an

ALJ is not required to discuss every piece of evidence”). In any event, the ALJ

provided legitimate reasons for rejecting Dr. Sundwall’s opinion. Dr. Sundwall’s

recommended physical limitations consist of checked boxes and circled numbers

on a form. Cf. Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (“Dr.

                                          -16-
Gabbert’s report in this regard consists solely of boxes checked on the Secretary's

form to indicate his conclusion of no limitation on right arm use. Such evaluation

forms, standing alone, unaccompanied by thorough written reports or persuasive

testimony, are not substantial evidence.”). Dr. Sundwall’s opinion was not

supported with additional explanation, but referenced a letter from Dr.

Apfelbaum, and Dr. Sundwall’s patient notes.

      The A LJ found that neither D r. Apfelbaum’s letter, nor Dr. Sundwall’s

patient notes justified the extent of Dr. Sundwall’s recommended limitations. A

treating physician’s opinion should be accorded controlling weight, but only if it

is well supported by medical findings. Absent from the record is medical

evidence or opinions from doctors, treating or otherwise, to confirm the degree of

limitations opined by Dr. Sundwall’s form. The A LJ properly evaluated D r.

Sundwall’s opinion in the context of the record of as a w hole, and the A LJ’s

decision is supported by substantial evidence.

                                         III.

      In sum, we reverse and remand to the district court with direction to

remand the case to the ALJ for further proceedings to determine whether Peck has

an impairment that meets or equals Listing 12.05(C). W e affirm the A LJ’s




                                        -17-
rejection of Dr. Sundwall’s report.


                                             Entered for the Court


                                             M ary Beck Briscoe
                                             Circuit Judge




                                      -18-
