                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   February 16, 2007
                               FO R TH E TENTH CIRCUIT             Elisabeth A. Shumaker
                                                                       Clerk of Court

    STEV E J. M A Y N A RD ,

              Plaintiff-Appellant,

      v.                                               No. 06-4134
                                                (D.C. No. 2:04-CV-775-DB)
    M ICH AEL J. ASTRU E, *                              (D. Utah)
    Commissioner, Social Security
    Administration,

              Defendant-Appellee.



                               OR D ER AND JUDGM ENT **


Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, *** District Judge.




*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for Jo
Anne B. Barnhart as appellee in this action.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
***
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
      Plaintiff Steve J. M aynard appeals from the district court’s judgment

affirming the final decision of the Commissioner of Social Security denying him

disability insurance benefits (DIB) and supplemental security income (SSI)

benefits under Title II and Title XVI of the Social Security Act. W e have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. §§ 405(g) and 1383(c)(3).

After “review[ing] the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards,” Hinkle v. Apfel, 132

F.3d 1349, 1351 (10th Cir. 1997), we reverse and remand with instructions to

remand to the Commissioner.

                                          I.

      W hile working as a member of the Oklahoma N ational Guard on

February 2, 2002, M r. M aynard was struck on the shoulder and back by support

beams that dislodged from a garage ceiling. Shortly thereafter he was diagnosed

with degenerative disc disease in his lower back. Based on that condition, he

filed applications for DIB and SSI benefits with a protective filing date of

October 22, 2002, and an onset date of June 11, 2002. After his applications were

denied initially and upon reconsideration, he received a hearing before an

administrative law judge (ALJ), who applied the five-step sequential evaluation

process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), see W illiam s

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

                                         -2-
At step one, the ALJ found that M r. M aynard was not engaged in any substantial

gainful activity. At steps two and three, the ALJ found that M r. M aynard has

discogenic and degenerative disorders of the back, obesity, and hyperalimentation

that are severe but not severe enough to meet or equal one of the impairments

listed in 20 C.F.R., Part 404, Subpart P, Appendix 1 (the “Listings”), stating that

M r. M aynard “has no loss of function and he can ambulate effectively without

assistive device.” Aplt. App. at 26. Proceeding to step four, the ALJ found that

M r. M aynard retains the residual functional capacity (RFC) to perform sedentary

work 1 and therefore could not return to his past work as a graphic designer, which

required heavy lifting as he performed that job.

      Turning to step five, the A LJ applied the M edical Vocational Guidelines,

20 C.F.R., Part 404, Subpart P, Appendix 2 (the “grids”), which direct a

conclusion of “not disabled” when findings as to certain vocational characteristics

and a claimant’s RFC coincide with the criteria of a particular rule under the

grids, id. § 200.00(a). The ALJ found that M r. M aynard, at age twenty-nine, was

1
      The exertional requirements of sedentary work as defined as follow s:

      Sedentary work involves lifting no more than 10 pounds at a time
      and occasionally lifting or carrying articles like docket files, ledgers,
      and small tools. Although a sedentary job is defined as one which
      involves sitting, a certain amount of walking and standing is often
      necessary in carrying out job duties. Jobs are sedentary if walking
      and standing are required occasionally and other sedentary criteria
      are met.

20 C.F.R. §§ 404.1567(a), 416.967(a).

                                         -3-
a “younger person,” see 20 C.F.R. §§ 404.1563(c), 416.963(c), with a “high

school” education, id. §§ 404.1564(b)(4), 416.964(b)(4), and transferable skills,

see id. §§ 404.1568(d), 416.968(d). These findings, which M r. M aynard does not

challenge, in combination with the ALJ’s finding that M r. M aynard retained the

RFC to perform a full range of sedentary work, Aplt. App. at 29, dictated a

finding that he was not disabled under Rule 201.29 of the grids, Aplt. Opening

Br., second unlabeled attachment at 8, ¶ 12. 2

      The Appeals Council denied review, making the ALJ’s M ay 27, 2004,

decision the Commissioner’s final decision. See Jensen v. Barnhart, 436 F.3d

1163, 1164 (10th Cir. 2005). The district court affirmed the C ommissioner’s

decision, and M r. M aynard appealed.

                                          II.

      M r. M aynard raises four issues on appeal: (1) the ALJ erred by failing to

state what weight he gave to the opinions of M r. M aynard’s treating physicians or

by rejecting those opinions without explanation; (2) substantial evidence does not

support the ALJ’s RFC finding, and the ALJ gave an improper hypothetical to the

vocational expert (VE) at the hearing; (3) the ALJ referred to an outdated Listing

at step three; and (4) the ALJ’s adverse credibility finding is plagued by legal

error and not supported by substantial evidence. Because the first two issues are

2
      W e must refer to the last page of the ALJ’s decision by reference to the
copy attached to M r. M aynard’s brief because that page is not included in the
Appendix.

                                          -4-
related, we address them together before turning to the others. Additionally,

M r. M aynard contends that the Commissioner impermissibly urges affirmance on

grounds not relied on by the A LJ in connection with some of the foregoing issues.

                                          A.

      M r. M aynard argues that the ALJ either failed to state what weight he gave

to the opinions of treating and examining physicians or rejected those opinions

without explanation. Specifically, he points to the medical opinions of

Dr. Henthorn, Dr. Loftus, Dr. Carl, Dr. W hite, and the National Guard M edical

Board. W e agree with M r. M aynard’s observation that the ALJ did not state what

weight, if any, he gave to the opinions of each of the medical sources catalogued

in his decision. As to most of the medical opinions, however, this does not

amount to legal error. An ALJ is required to “review all of the evidence relevant

to [a] claim” and “make findings about what the evidence shows.” 20 C.F.R.

§§ 404.1527(c), 416.927(c). “If all of the evidence we receive, including all

medical opinion(s), is consistent, and there is sufficient evidence for us to decide

whether you are disabled, we will make our determination or decision based on

that evidence.” Id. §§ 404.1527(c)(1), 416.927(c)(1). “If any of the evidence in

your case record, including any medical opinion(s), is inconsistent with other

evidence or is internally inconsistent, we will weigh all of the evidence and see

whether we can decide whether you are disabled based on the evidence we have.”

Id. §§ 404.1527(c)(2), 416.927(c)(2).

                                         -5-
          The ALJ reviewed all of the medical evidence in his decision. The

medical opinions contained in the record are, for the most part, in agreement that

M r. M aynard has moderately severe to severe degenerative disc disease that

causes severe pain and limits the amount he can lift as well as his ability to bend,

tw ist, and sit, and dictates that he should not be exposed to prolonged vibrations.

See, e.g., Aplt. App. at 103, 112, 114, 135, 140, 159. Thus, the mere fact that the

ALJ did not assign weights to each of the consistent medical opinions was not

error.

         In reaching his RFC finding that M r. M aynard has the ability to perform

sedentary work, however, the ALJ specifically stated that he had “considered the

opinions of the State agency medical consultants . . . and generally agrees w ith

the determinations made by the State agency (Social Security Ruling 96-6p).”

Aplt. App. at 27. In early 2003, those consultants completed a “check box” RFC

assessment form without examining M r. M aynard and, among other things, opined

that he could sit, w ith normal breaks, for six hours in an eight hour work day. Id.

at 137. This opinion appears to conflict with the opinion of Dr. Bell, who saw

M r. M aynard in February 2004 as part of ongoing treatment by the National

Guard M edical Evaluation Board. Dr. Bell reviewed M r. M aynard’s history of

prior examinations and performed a physical examination. See id. at 165-66. H e

noted that M r. M aynard was unable to sit for prolonged periods to operate a

computer as part of his military duties, and he included “[n]o prolonged sitting”

                                           -6-
in his duty restrictions. Id. at 167. 3 The ALJ specifically acknowledged the latter

statement in his decision, see id. at 26, yet he failed to explain why he did not

give it greater weight than the opinion of the nonexamining state-agency

consultants that M r. M aynard could sit for six hours out of an eight-hour

workday. See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1) (providing that more

weight generally is given to examining sources than nonexamining sources). Nor

did he explain the apparent inconsistency betw een the tw o opinions. See Soc.

Sec. Ruling 96-6p, 1996 W L 374180, at *2, *4 (ALJ must consider factors such as

consistency with other medical opinions in deciding what weight to accord RFC

assessment by state-agency consultants, which is treated as medical opinion from

nonexamining source).

      These deficiencies are significant because the ALJ specifically found that

M r. M aynard’s RFC to perform the full range of sedentary work, in connection

with his vocational characteristics, required a finding that he was not disabled

under Rule 201.29 of the grids. Id. at 29; Aplt. Opening Br., second unlabeled

attachment at 8, ¶ 12. 4 But in order to rely on the grids “to direct a conclusion of


3
      Another document in the record dated December 6, 2003, which
recommended separation from Guard duty, also indicates a prohibition on
prolonged sitting. Aplt. App. at 173.
4
       Although both parties reference the ALJ’s single sentence summarizing the
VE’s testimony that M r. M aynard could perform the job of computer operator and
that there were 8,000 such jobs regionally and 73,000 nationally, id. at 28, the
ALJ ultimately relied on the grids in making his step-five finding. W e therefore
                                                                      (continued...)

                                         -7-
‘not disabled,’ the individual must be able to perform the full range of w ork

administratively noticed by a rule. This means that the individual must be able to

perform substantially all of the strength demands defining the sedentary level of

exertion . . . .” Soc. Sec. Ruling 96-9p, 1996 W L 374185, at *4 (SSR 96-9p); see

also Soc. Sec. Ruling 83-11, 1983 W L 31252, at *2 (explaining that for

application of the grids, “RFC is defined by criteria that establish exertional

capability for a full range (all or substantially all) of the work existing at the level

of exertion in question”).

      Sitting is one of the exertional demands of sedentary work, see SSR 96-9p,

1996 W L 374185 at *5, and its relationship to the full range of sedentary work is

described as follow s:

      In order to perform a full range of sedentary work, an individual
      must be able to remain in a seated position for approximately 6 hours
      of an 8-hour workday, with a morning break, a lunch period, and an
      afternoon break at approximately 2-hour intervals. If an individual is
      unable to sit for a total of 6 hours in an 8-hour workday, the
      unskilled sedentary occupational base will be eroded.

Id. at *6. Thus, a medically supported prohibition on prolonged sitting could

preclude the ALJ’s reliance on the grids to direct a finding of “not disabled” if it

means that M r. M aynard cannot sit for a total of six hours in an eight-hour

4
 (...continued)
analyze the ALJ’s failure to explain why the opinion of the state-agency
consultants w as entitled to more weight than Dr. Bell’s opinion as it pertains to
reliance on the grids.



                                           -8-
workday; such a restriction means that he would not be able to perform the full

range of sedentary work. Therefore, the ALJ’s failure to reconcile D r. Bell’s

prohibition on prolonged sitting, which he specifically acknowledged, with the

opinion of the state-agency consultants that M r. M aynard could sit for six hours

out of an eight-hour w orkday fatally undermines his RFC finding, see Clifton v.

Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (holding that “[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”), as well as

his correlative use of the grids to direct a disability finding.

      W hen a claimant cannot perform the full range of sedentary work such that

the grids do not direct a disability finding, SSR 96-9p states that the grids “must

be used as a framew ork for considering the extent of any erosion of the sedentary

occupational base.” SSR 96-9p, 1996 W L 374185, at *4. In such circumstances,

the ALJ must make a judgment as to “the impact of the limitations or restrictions

on the number of sedentary unskilled occupations or the total number of jobs to

which the individual may be able to adjust, . . . including any transferable skills

or education providing for direct entry into skilled work.” Id. at *5. If the ALJ

“finds that the individual is able to do other work, the [ALJ] must cite examples

of occupations or jobs the individual can do and provide a statement of the

incidence of such work in the region where the individual resides or in several

regions of the country.” Id.

                                           -9-
      The A LJ did not specifically state that he was using the grids as a

framework here, but he did reference the VE’s testimony that M r. M aynard could

perform the job of computer operator, a skilled position, and that there were 8,000

such jobs regionally and 73,000 nationally. To the extent that this reference

could be construed as the analysis required under SSR 96-9p for using the grids as

a framew ork (and assuming M r. M aynard cannot perform the full range of

sedentary work), two problems arise. First, the ALJ stated to the VE that

M r. M aynard “appears to be having a lot of trouble just sitting,” then gave the

following hypothetical to the VE: “W hat would be a good job where you could

sit or stand w ith [M r. M aynard’s] skill levels?” Aplt. App. at 228. These two

statements imply that M r. M aynard would be able to perform a sedentary job with

a sit-stand option. Although the ALJ does not mention such an option in his

decision, it could, if appropriate for M r. M aynard, permit him to perform

sedentary work:

      An individual may need to alternate the required sitting of sedentary
      work by standing (and, possibly, walking) periodically. W here this
      need cannot be accommodated by scheduled breaks and a lunch
      period, the occupational base for a full range of sedentary work will
      be eroded. The extent of the erosion will depend on the facts in the
      case, such as the frequency of the need to alternate sitting and
      standing and the length of time needed to stand. The RFC
      assessment must be specific as to the frequency of the individual’s
      need to alternate sitting and standing.

SSR 96-9p, 1996 W L 374185, at *7 (emphasis added). The ALJ’s hypothetical

does not comply with the emphasized language in the foregoing quotation because

                                         -10-
it provided no specifics to the VE concerning the frequency of any need

M r. M aynard may have to alternate sitting and standing and the length of time

needed to stand. The RFC in the ALJ’s hypothetical is therefore flaw ed as it

pertains to a sit-stand option, and the VE’s response is not a reliable basis for

analyzing the erosion of the unskilled sedentary occupational base or the total

number of jobs M r. M aynard can perform, including his ability to transfer directly

into a skilled position such as computer operator.

      The second and perhaps more troubling problem w ith trying to salvage the

ALJ’s step-five finding based on the VE’s testimony is that the VE identified the

computer-operator job listed as # 213.362-010 in the Dictionary of Occupational

Titles (D O T) 5 to be “sedentary,” Aplt. App. at 229, when in fact the DOT

classifies it as “light,” see DOT # 213.362-010. This error may explain why the

ALJ relied on the grids at step five instead of the VE’s testimony. For this

additional reason, the VE’s testimony does not assist in establishing that

M r. M aynard can perform any jobs if he is limited to less than the full range of

sedentary work.

      W e need not address M r. M aynard’s argument that the ALJ’s RFC fails to

account for the opinion of the state-agency consultants that M r. M aynard could

climb, balance, stoop, kneel, crouch, and crawl no more than occasionally, see



5
     U.S. Dep’t of Labor, Employment & Training Admin., Dictionary of
Occupational Titles (4th ed. 1991).

                                         -11-
Aplt. A pp. at 138, and should not endure concentrated exposure to vibrations, id.

at 140. W hether or not these limitations are supported by substantial evidence or

may affect the work M r. M aynard can perform should be revisited on remand.

                                           B.

      M r. M aynard’s third argument is that at step three, the ALJ referred to a

prior version of the Listing that concerns disorders of the spine, Listing 1.05,

which taints his finding that M r. M aynard does not meet or equal the Listing. The

Commissioner concedes that the ALJ’s citation to Listing 1.05 is a reference to

the section number for the prior version of the spinal-disorder Listing, which was

amended as of February 19, 2002, see 66 Fed. Reg. 58,010, 58,010 (Nov. 19,

2001), and renumbered as Listing 1.04, see id. at 58,017-18. To overcome this

error, the Commissioner urges us to apply the harmless error doctrine by noting

that the ALJ referred to a number of the conditions necessary to meet or equal

Listing 1.04, which in turn suggests that he considered the proper version. In

support of this argument, the Commissioner points to some medical evidence that

the A LJ did not specifically reference in his decision, which M r. M aynard

contends is the type of post hoc justification of an administrative decision that is

impermissible under SEC v. Chenery, 332 U.S. 194, 196 (1947), and our case law

applying that principle in social security cases, see, e.g., Knipe v. Heckler,

755 F.2d 141, 149 n.16 (10th Cir. 1985).




                                         -12-
      W e need not resolve these issues in view of the fact that we are remanding

the case for other purposes. On remand, the ALJ should address the erroneous

reference to Listing 1.05 and tie his step-three finding more specifically to the

medical evidence as it relates to the specific requirements of Listing 1.04.

                                         C.

      M r. M aynard’s final argument is that the ALJ’s adverse credibility finding

is not affirmatively linked to the record and not supported by substantial

evidence. “Credibility determinations are peculiarly the province of the finder of

fact, and we will not upset such determinations when supported by substantial

evidence.” Diaz v. Sec’y of Health & H um an Servs., 898 F.2d 774, 777 (10th Cir.

1990). However, “[f]indings as to credibility should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.”

Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted).

      After recounting M r. M aynard’s testimony concerning his limitations and

daily activities, the ALJ found that

      his impairments and their impact on his ability to work are not
      supported to the extent alleged by objective medical findings.
      Although the claimant has some pain and discomfort in his back and
      legs he is able to ambulate effectively without assistive device. The
      claimant did suffer an injury and also has severe degenerative disc
      disease and his weight is also a contributing factor to his back pain.
      The claimant has not made any attempts to reduce his weight and has
      not required surgical intervention.

Aplt. A pp. at 27.



                                         -13-
      The first reason given by the A LJ, that the severity of M r. M aynard’s

claimed limitations are not supported by objective medical findings, is not closely

and affirmatively tied to the record. As noted above, there is substantial evidence

in the record that M r. M aynard suffers from moderately severe to severe

degenerative disc disease that causes severe pain and limits the amount he can lift

as well as his ability to bend, twist, and sit, and dictates that he should not be

exposed to prolonged vibrations. See, e.g., Aplt. App. at 103, 112, 114, 135, 140,

159. The A LJ did not explain why this evidence did not support M r. M aynard’s

description of the extent of his limitations. Instead, he gave “a conclusion in the

guise of findings.” Huston, 838 F.2d at 1133.

      The second and fourth reasons the ALJ gave have little logical relation to

M r. M aynard’s RFC and the step-five determination. W hether or not

M r. M aynard can ambulate effectively without an assistive device is one element

of Listing 1.04C, not a requirement for finding M r. M aynard disabled at step five.

The fact that he does not need such a device, therefore, says little about his

limitations as they relate to the ability to perform sedentary work. As to the fact

that M r. M aynard has not required surgical intervention, Dr. Loftus stated that he

had no surgical remedy to offer, Aplt. App. at 110, and Dr. W hite stated that

fusion surgery was contraindicated, id. at 135.

      The only reason the A LJ gave that lends some support to his adverse

credibility finding is M r. M aynard’s failure to make any attempt to lose weight.

                                          -14-
An ALJ may consider what attempts a claimant made to relieve pain as part of the

credibility analysis. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

Several of M r. M aynard’s doctors indicated that his weight may be a contributing

cause of his back pain. See Aplt. App. at 95, 135. However it is unclear whether

loss of weight would reduce M r. M aynard’s limitations. It is also unclear whether

M r. M aynard’s failure to attempt to lose weight is due to an inability to exercise

because of his condition, as he argues, an unwillingness to modify his diet, or

some combination of the two. On remand, the ALJ should reconsider this basis

for his credibility finding.

                                           III.

      For the foregoing reasons, we conclude that substantial evidence does not

support the ALJ’s RFC, credibility, or step-five findings. The judgment of the

district court is REVERSED and the case is REM ANDED to the district court

with directions to remand the case to the Commissioner for further proceedings

consistent with this order and judgment.


                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge




                                          -15-
