                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       October 18, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    TONY SANDOVAL, JR.,

                Plaintiff-Appellant,

    v.                                                   No. 06-2097
                                                  (D.C. No. CIV-05-806-LCS)
    JO A NN E B. BA RN HA RT,                             (D . N.M .)
    Commissioner of Social Security,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before O’BRIEN, PO RFILIO, and A ND ER SO N, Circuit Judges.




         Plaintiff-appellant Tony Sandoval, Jr. appeals from an order of the

district court affirming the Commissioner’s decision denying his application for

Social Security disability and Supplemental Security Income benefits (SSI).

M r. Sandoval filed for these benefits on October 23, 2002. He alleged disability




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
based on a back injury and possible arthritis, numbness in both arms and hands,

and fatigue from an inability to sleep. The agency denied his applications

initially and on reconsideration.

      On September 15, 2004, M r. Sandoval received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that Mr. Sandoval retained

the residual functional capacity (RFC) to perform the full range of light work.

The ALJ found that he could not return to his past relevant work, but that there

were a significant number of other jobs which he could perform in the national

or regional economy. Applying the M edical-Vocational Guidelines, 20 C.F.R.

pt. 404, Subpt. P, App. 2, rule 202.18 (the grids), the ALJ concluded that

M r. Sandoval was not disabled within the meaning of the Social Security Act.

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 Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)

(quotations omitted).




                                         -2-
      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. See id. at 751 n.2.

If the claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains sufficient RFC to

perform work in the national economy, given his age, education and work

experience. See id. at 751.

      On appeal, M r. Sandoval raises issues pertaining to the ALJ’s treatment of

the medical evidence, his application of the grids, and the district court’s

affirmance of the ALJ’s decision without access to a complete hearing transcript.

W e reverse and remand for further proceedings.

      1. Reliance on the grids

      M r. Sandoval contends that the ALJ erred in applying the grids to find him

disabled. “[A ] large body of circuit precedent preclud[es] use of the grids unless

the claimant’s RFC precisely matches the RFC specified for the grid relied upon.”

Allen v. Barnhart, 357 F.3d 1140, 1143 (10th Cir. 2004). W here the claimant

suffers from non-exertional impairments such as pain, conclusive reliance on the

grids is improper. See id. “[A]n ALJ may not rely conclusively on the grids

unless he finds . . . that the claimant has no significant nonexertional

impairment.” Thom pson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993).


                                          -3-
      The ALJ recognized M r. Sandoval’s back pain as a severe impairment at

step two. The frequent indications of pain in the medical record support this

conclusion. The ALJ’s step-two finding makes it impossible to conclude at step

four that M r. Sandoval’s pain was insignificant. The ALJ therefore erred by

relying conclusively on the grids. On remand, he must assess the level of pain

M r. Sandoval suffers, and determine whether there are jobs he can do with that

level of pain.

      W e note, also, as M r. Sandoval points out, that the ALJ failed to explain

what specific evidence supports his finding that M r. Sandoval can perform the

full range of light work. On remand, the ALJ should identify the evidence on

which he relies, indicating his reasons for concluding that it outweighs the

opinion of M r. Sandoval’s treating physician, Dr. Vujan, that M r. Sandoval is

limited to sedentary work.

      M r. Sandoval also contends that the limitations created by his carpal tunnel

syndrome (CTS) preclude him from performing the full range of light work.

M r. Sandoval underw ent surgery for his CTS in M arch 2004. In M ay 2004, a

physical therapist identified as a goal that M r. Sandoval should regain functioning

in his hands. The Commissioner, noting that CTS symptoms were not mentioned

in reports from two July 2004 medical visits, concluded that the surgery must

have been successful in relieving his symptoms, and the goal achieved. A record

submitted to the Appeals Council, however, that is now part of the administrative

                                         -4-
record, see Aplt. App., Vol. II, at 9, 217, indicates that in September 2004,

M r. Sandoval continued to experience pain six months after the surgery when

using either hand for an extended period of time. In assessing M r. Sandoval’s

RFC on remand, the ALJ should therefore carefully consider whether he

experiences any ongoing reduction in function or pain due to his CTS that would

affect his ability to work.

      2. ALJ’s assessment of medical evidence

       M r. Sandoval argues that the ALJ improperly rejected the medical opinion

of his treating physician, Dr. Vujan. Dr. Vujan began treating M r. Sandoval in

August 2003. In October 2003, he completed a physician’s questionnaire and

a functional RFC assessment expressing his opinions concerning the effect of

M r. Sandoval’s impairments on his ability to work.

      In the questionnaire, Dr. Vujan explained that he had diagnosed

M r. Sandoval with chronic back pain, CTS, and depression. 1 He treated these

conditions with referrals to physical therapy and orthopedic care, education, and

symptomatic pain relief with medications. Dr. Vujan opined that M r. Sandoval

would need five to six rest breaks per day, lasting thirty to forty-five minutes

each, and that he was able to work “0” hours per day. Id. at 179. He stated, “I do




1
      The ALJ considered the very limited references to depression in the record,
and determined that no evidence demonstrated the presence of depression as a
severe impairment in M r. Sandoval’s case.

                                         -5-
not believe that this patient will ever be able to gain or maintain gainful

employment.” Id.

       W ith regard to the specific elements of M r. Sandoval’s RFC, Dr. Vujan

stated that he could sit for two hours at a time, and stand or walk for less than an

hour at a time each. During an eight-hour day, he opined, M r. Sandoval could sit

for a total of six hours, stand for four hours, and/or walk for two hours. H e could

frequently lift or carry up to five pounds, and occasionally lift or carry up to ten.

He could frequently use his right hand to grasp or do fine manipulation, and

occasionally his left. Dr. Vujan found no limitation on M r. Sandoval’s ability to

use his feet for repetitive motion as in pushing or pulling of leg controls. He

would limit M r. Sandoval to occasional bending and crawling, and restrict him

from climbing. He also would restrict him from unprotected heights and from

being around moving machinery.

       Dr. Vujan also expressed his opinion that M r. Sandoval’s condition was

permanent. He explained that M r. Sandoval

       is incapacitated from chronic low back pain and bilateral carpal
       tunnel syndrome that have become unresponsive to physical therapy
       and most conventional therapies [including] epidural injections,
       muscle relaxants, [and] many pain medications. It is my opinion that
       these symptoms are unlikely to improve and severely impair [his]
       overall level of function.

Id. at 182.




                                          -6-
       Addressing these opinions, the ALJ stated:

       Dr. Vujan has submitted a questionnaire in which he offers specific
       limitations which place M r. Sandoval at the “sedentary” exertional
       demand level. Dr. Vujan also offers the opinion that M r. Sandoval
       must rest several hours per day, and that he would be unable to gain
       or maintain gainful employment. He characterizes M r. Sandoval as
       incapacitated from chronic pain and carpal tunnel syndrome. . . .

       [. . .]

       A reasonable interpretation of the medical and other evidence
       supports that M r. Sandoval is capable of performing [light] work.
       First, there is no direct evidence in the medical record of a back
       pathology. There is reference to an M RI apparently disclosing
       degenerative disc disease, but the relative severity is not apparent.
       The most recent diagnostic imaging in the form of the CT scan done
       in M arch 2003 showed no discernable lumbar problems whatsoever.
       M r. Sandoval’s complaints of lower back pain have been consistent
       and are not completely discounted, but are not completely credited. I
       find no basis for Dr. Vujan’s contention that M r. Sandoval must rest
       for several hours per day or that he has significant functional
       limitations. Dr. Vujan’s characterization that M r. Sandoval is
       incapacitated is not supported by medical findings. The objective
       medical record simply fails to identify a back impairment which
       would reasonably translate into such limitations. M r. Sandoval’s
       carpal tunnel syndrome was treated relatively recently and there is no
       indication that this condition will not resolve as expected.
       Accordingly, I find that M r. Sandoval retains a residual functional
       capacity compatible with the performance of at least “light” work.

Id. at 21.

       M r. Sandoval contends that this analysis is inconsistent with the framew ork

for evaluating treating physicians’ opinions described in our opinion in Watkins v.

Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Watkins sets out the sequential

analysis that an ALJ must follow when evaluating the opinion of a treating



                                         -7-
physician. In the first step of this analysis, he must consider “whether the opinion

is w ell-supported by medically acceptable clinical and laboratory diagnostic

techniques.” Id. (quotation omitted). “If the answer to this question is ‘no,’ then

the inquiry at this stage is complete,” and he need not give the opinion controlling

weight. Id.

      If he determines that the treating physician’s opinion is not entitled to

controlling weight, the ALJ must next consider whether the opinion should be

rejected altogether, or assigned some lesser weight. He does this by applying the

factors provided in 20 C.F.R. §§ 404.1527 and 416.927. Watkins, 350 F.3d

at 1300. 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 A LJ’s attention which tend to support
      or contradict the opinion.

Id. at 1301 (quotation omitted).

      If, after considering these factors, the ALJ assigns a less than controlling

weight to the opinion, he must give good reasons for the lesser w eight he assigns.

Id. If he rejects it altogether, he must give “specific, legitimate reasons” for

doing so. Id. (quotation omitted).




                                          -8-
      In the first stage of the analysis, the A LJ considered whether Dr. Vujan’s

opinion was well-supported by medically acceptable evidence. He determined

that it was not. The ALJ gave adequate reasons for this conclusion. A CT scan

showed no discernable lumbar problems. M r. Sandoval underwent surgery for his

CTS six months after Dr. Vujan expressed his opinion, and the A LJ found there

was no evidence that the surgery had been unsuccessful. Having made these

findings, the ALJ satisfied the first step of the analysis, essentially concluding

that he was not obliged to give the opinion controlling weight.

      As M r. Sandoval points out, however, the ALJ w as then required to turn to

the second step of the analysis, in w hich he considers the regulatory factors in

order to decide what weight, if any, to assign to the treating physician’s opinion.

The ALJ apparently rejected Dr. Vujan’s opinion altogether, without discussion of

the relevant factors set forth in §§ 404.1527 and 416.927. See Langley v.

Barnhart, 373 F.3d 1116, 1120 (10th Cir. 2004) (requiring analysis of relevant

factors). W hile the ALJ’s cursory dismissal of Dr. Vujan’s sweeping statements

involving M r. Sandoval’s need for rest breaks and his total inability to w ork

probably met the requirements of the second and third steps of Watkins, we are

less sanguine concerning his rejection of Dr. Vujan’s specific conclusions

regarding M r. Sandoval’s RFC, which essentially limited him to work at a

sedentary level. It is unclear on what basis the A LJ rejected these conclusions,

and how he applied the relevant factors in reaching his conclusion that

                                          -9-
Dr. Vujan’s R FC determination should be rejected. W e must therefore remand to

permit the ALJ to properly assess Dr. Vujan’s opinion, using the specific criteria

and analytical process laid out in Watkins and Langley.

      M r. Sandoval also contends that the ALJ should have re-contacted

Dr. V ujan before rejecting his opinion due to lack of objective medical evidence.

See 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) (“W e will seek additional

evidence or clarification from your medical source when the report from your

medical source . . . does not appear to be based on medically acceptable clinical

and laboratory diagnostic techniques”); Robinson v. Barnhart, 366 F.3d 1078,

1084 (10th Cir. 2004) (per curiam). However, “it is not the rejection of the

treating physician’s opinion that triggers the duty to recontact the physician;

rather it is the inadequacy of the ‘evidence’ the ALJ ‘receives from [the

claimant’s] treating physician’ that triggers the duty.” White v. Barnhart,

287 F.3d 903, 908 (10th Cir. 2002) (opinion on rehearing). Here, the ALJ did

not find Dr. Vujan’s opinion incomplete or in need of clarification; he simply

found it inconsistent with the medical evidence. See id. W e therefore conclude

that the ALJ was not obligated to recontact Dr. Vujan, based on the findings

he made. 2




2
      W e express no opinion concerning whether the further findings we have
ordered on remand concerning Dr. Vujan’s treating physician’s opinion might
require the ALJ to re-contact him for clarification or for further evidence.

                                         -10-
      3. ALJ’s treatment of other medical evidence

      The A LJ concluded that “there is no direct evidence in the medical record

of a back pathology.” A plt. App., Vol. II, at 21. M r. Sandoval contends that this

finding was erroneous, for several reasons. First, he contends that the ALJ erred

in failing to discuss Dr. Frechette’s diagnoses of degenerative disc disease and/or

lumbar disc disease, which he contends is supported by both D r. Frechette’s

findings and the examinations performed by physicians’ assistants and physical

therapists.

      The ALJ w as not required to discuss every piece of evidence contained in

the record. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). He needed

only to discuss evidence he rejected if it w as significantly probative. Id. at 1010.

W e conclude that, based on the evidence before him, the ALJ correctly

determined that Dr. Frechette’s diagnosis was not significantly probative and did

not require specific discussion beyond a general rejection of the diagnosis of

degenerative disc disease. 3

      A careful review of the record shows that the ALJ w as correct in

concluding that the evidence, including Dr. Frechette’s records and the physical

therapy records, does not objectively support a diagnosis of disc degeneration or



3
      To the extent that M r. Sandoval now argues that Dr. Frechette’s diagnosis
should have been analyzed under Watkins, we note that he failed to make this
argument in his briefs in district court; we therefore do not consider this
argument.

                                         -11-
disease. A CT scan performed on M arch 4, 2003, for example, showed no

evidence of disc herniation or protrusion. Aplt. A pp., Vol. II, at 148.

Dr. Frechette thereafter noted that M r. Sandoval had “back pain [secondary to]

back spasm.” Id. at 150. Spinal evaluations on M arch 19 and 31, 2003, noted

“muscle spasm” as a cause for his back pain. Id. at 164, 166. A spinal evaluation

dated April 8, 2003, described his pain as “of unknown etiology.” Id. at 162.

On the physician’s questionnaire, completed October 17, 2003, Dr. Vujan

identified the objective finding on which he diagnosed M r. Sandoval’s chronic

back pain as “limited range of motion” and “tenderness.” Id. at 178. W hile it is

true that Dr. Frechette at times diagnosed M r. Sandoval with degenerative disc

disease and/or lumbar disc disease, the record before the ALJ did not contain any

objective medical evidence, other than various range-of-motion tests, that would

justify such a diagnosis. The ALJ’s finding concerning the lack of direct

evidence of back pathology therefore appears to be supported by substantial

evidence.

      M r. Sandoval notes, however, that a patient referral notice dated December

11, 2002, stated that an M RI performed on M ay 23, 2002, had show n L4-5 disc

degeneration. Id. at 174. The ALJ stated that the M RI result itself was not

contained in the record before him, id. at 20, 4 and it was therefore impossible to



4
       In his decision, the ALJ referred to a “June 2002” M RI, but the portion of
the record he cited refers to the M ay 23, 2002, M RI.

                                         -12-
determine the severity of the alleged impairment, id. at 21. M r. Sandoval

contends that the ALJ’s reasoning is flaw ed because he failed in his duty to

attempt to obtain the M RI result. W e note, however, that the M RI result was

provided to the Appeals Council, which determined that it did not provide a basis

for review. W hile the ALJ’s alleged failure to obtain the M RI result by itself may

not justify reversal and remand, the existence of this result in the record does

bolster the need for a remand based on the grids and treating physician issues.

      4. Inaudibility of hearing transcript

      Finally, M r. Sandoval argues that the district court’s decision is flawed

because there are many gaps due to inaudibility in the transcript of the September

15, 2004, hearing. By our decision today, we are remanding this case to the

agency for further proceedings. It is uncertain whether any additional judicial

review of the hearing transcript will be required in the future. Under the

particular circumstances of this case, therefore, this claim is moot as to the

existing district court decision, and premature as to any future judicial decision.

In the event the agency determines that the transcript is required but deficient for

purposes of the proceedings on remand, it may of course take steps to rectify the

transcript or to conduct further hearings, as necessary.




                                         -13-
      The judgment of the district court is REVERSED, and the case is

REM ANDED to the district court, with instructions to remand to the

Commissioner, to permit the A LJ to (1) conduct such further proceedings as are

necessary to assess the level of M r. Sandoval’s back pain and any ongoing

limitation posed by his carpal tunnel syndrome, and determine what jobs he can

perform with that level of pain, given any other limitations posed by his RFC;

and (2) correctly evaluate the opinion of Dr. Vujan.


                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




                                        -14-
