                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 23, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    PAUL D. WADE,

                Plaintiff-Appellant,

    v.                                                   No. 07-6154
                                                   (D.C. No. 06-CV-785-M)
    MICHAEL J. ASTRUE, Commissioner                      (W.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         Paul D. Wade appeals from a district court order affirming the

Commissioner’s denial of his application for Social Security disability benefits.

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we

reverse and remand.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mr. Wade’s application for disability benefits was denied initially and on

reconsideration, after which he requested a hearing before an administrative law

judge (ALJ). The ALJ found that Mr. Wade had the following severe

impairments: a history of on-the-job injuries to his head, neck, back, and

shoulder; diabetes; three surgeries on his left shoulder; carpal tunnel surgery;

asthma; hypertension; and right knee surgery. The ALJ determined that he had a

residual functional capacity (RFC) for a wide range of light work, based on which

he could no longer perform his past relevant work. But the ALJ found that there

were other jobs existing in significant numbers in the national economy that

Mr. Wade could perform, consistent with his RFC, age, education, and work

experience. Thus, the ALJ denied his claim for benefits. The Appeals Council

denied review and the district court affirmed the Commissioner’s decision.

      Mr. Wade filed a timely appeal in this court, in which he raises three claims

of error: (1) the ALJ failed to properly evaluate the medical evidence,

specifically the opinion of one of his treating physicians; (2) the ALJ failed to

properly evaluate his credibility; and (3) the ALJ’s RFC determination is not

supported by substantial evidence. “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.” Watkins v.

Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). Because we conclude that the

ALJ did not follow the correct legal standards in considering the opinion of one

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of Mr. Wade’s treating physicians, we reverse and remand for further

proceedings.

      “Under the regulations, the agency rulings, and our case law, an ALJ must

give good reasons in the notice of determination or decision for the weight

assigned to a treating physician’s opinion.” Id. at 1300 (quotation and brackets

omitted). First, the ALJ must determine whether the treating physician’s opinion

is entitled to controlling weight. Id. If it is not, the ALJ still must assign a

weight to the opinion based on the factors provided in 20 C.F.R. § 404.1527(d). 1

Id. “After considering the pertinent factors, the ALJ must give good reasons in

the notice of determination or decision for the weight he ultimately assigns the

opinion. Finally, if the ALJ rejects the opinion completely, he must then give

specific, legitimate reasons for doing so.” Id. at 1301 (quotations, citation, and

brackets omitted).


1
      These 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.

Watkins, 350 F.3d at 1301 (quotation omitted).


                                           -3-
      Mr. Wade argues that the ALJ failed to follow this protocol with respect to

an opinion of one of his treating physicians. In a letter dated April 1, 2003,

Dr. Christopher M. Herndon stated:

      Paul Wade is a 34-year-old white male who was involved in a motor
      vehicle accident March 21, 2002. He suffered significant injuries
      with the most serious being herniated disk in his lower back. He was
      seen by Dr. Tom Eiser, our local Orthopedic Surgeon, who evaluated
      him and did perform a laminectomy with fusion. In spite of
      significant post-operative physical therapy and rehabilitation he has
      had no significant relief of the symptoms in his left leg or the
      significant recurrent intractable pain.

      Because of the pain and numbness in his low back and left leg he is
      currently unable to perform any type of work.

Aplt. App., Vol. 2 at 471. The ALJ acknowledged Dr. Herndon’s letter in her

discussion of the medical evidence, but she made no finding whatsoever regarding

the weight, if any, that she assigned to his opinion. After noting that a state

agency medical consultant stated that Dr. Herndon’s conclusion was not

supported by the medical evidence, the ALJ never again addressed his opinion in

her decision.

      The Commissioner argues that Dr. Herndon’s opinion is not entitled to

controlling weight because his conclusion that Mr. Wade is unable to perform any

type of work is tantamount to an opinion that he is disabled, which is an issue

reserved to the Commissioner. We agree. See 20 C.F.R. § 404.1527(e)(1) & (3)

(providing that an opinion the claimant is “unable to work” is not entitled to any

“special significance”); SSR 96-5p, 1996 WL 374183, at *5 (stating medical

                                          -4-
source opinion that claimant is “unable to work . . . . can never be entitled to

controlling weight”). However, the ALJ was still required to assess the weight of

Dr. Herndon’s opinion, applying the factors in § 404.1527(d). See SSR 96-5p,

1996 WL 374183, at *3 (“[O]pinions from any medical source on issues reserved

to the Commissioner must never be ignored.”).

      Conceding that the ALJ failed to make an explicit finding regarding

Dr. Herndon’s opinion, the Commissioner argues that the ALJ’s finding regarding

the ultimate weight assigned to the opinion is implicit. The Commissioner

attempts to illustrate why Dr. Herndon’s opinion is inconsistent with the medical

evidence. The Commissioner then concludes, based upon the ALJ’s RFC

determination, that it appears the ALJ did give Dr. Herndon’s opinion some

credence. But the ALJ herself provided no such analysis. We recently held that

an ALJ’s failure to explicitly discuss all of the § 404.1527(d) factors with respect

to a medical opinion does not prevent this court from performing a meaningful

review. Oldham v. Astrue, No. 07-1087, __ F.3d __, 2007 WL 4285156, at *3

(10th Cir. Dec. 7, 2007). But here the ALJ discussed none of the factors and

made no finding as to weight. “We cannot simply presume the ALJ applied the

correct legal standards in considering Dr. [Herndon’s] opinion. We must remand

because we cannot meaningfully review the ALJ’s determination absent findings

explaining the weight assigned to the treating physician’s opinion.” Watkins, 350

F.3d at 1301.

                                          -5-
      Mr. Wade also contends that the ALJ improperly evaluated his credibility

and his subjective allegations of pain. The ALJ set forth the proper criteria for

evaluating his subjective complaints, discussed some of the medical evidence and

portions of Mr. Wade’s testimony, and concluded that “his subjective complaints

suggest a greater severity than can be proven by the objective medical evidence.”

Aplt. App., Vol. 1 at 25. We note, however, that in support of her conclusion the

ALJ mischaracterized Mr. Wade’s testimony in at least two respects. See Talbot

v. Heckler, 814 F.2d 1456, 1464 (10th Cir. 1987) (noting ALJ did not challenge

claimant’s reports of his activities, but instead mischaracterized their nature).

First, the ALJ considered the fact that Mr. Wade uses a TENS unit when his pain

is severe, which she said “is not often.” Id. But when the ALJ asked him how

frequently his pain was severe, he replied, “It depends on my level of activity.

The more I do, the more I hurt usually,” and he proceeded to describe his normal

level of activity as very limited, including lying down at least once a day for two

to three hours. Id., Vol. 2 at 607-08, 611. Second, the ALJ noted that Mr. Wade

said he could occasionally lift his 50-pound daughter, but failed to mention that

he also said he would have to take pain medication and lie down after doing so.

In light of the ALJ’s mischaracterization of Mr. Wade’s testimony, we direct the

ALJ on remand to reevaluate the credibility of his subjective complaints of pain.




                                          -6-
      We decline to address Mr. Wade’s final claim of error with respect to the

sufficiency of the evidence supporting the ALJ’s RFC determination, as that may

be affected by the ALJ’s treatment of this case on remand.

      The judgment of the district court is REVERSED. We REMAND this case

to the district court with instructions to REMAND to the Commissioner for

further proceedings consistent with this order and judgment.


                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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