                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       December 16, 2005
                            FOR THE TENTH CIRCUIT
                                                                          Clerk of Court

    TERRY C. MOON,

             Plaintiff-Appellant,

    v.                                                   No. 04-7130
                                                   (D.C. No. 03-CV-587-W)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner, Social Security
    Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before EBEL, HARTZ, and McCONNELL, 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      This order and judgment is not binding precedent, except under the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 Terry C. Moon appeals from the denial of his application for social

security disability and supplemental security income benefits. We have

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

      Plaintiff was born in 1959. He lives in the small town of Antlers,

Oklahoma. He has congenital defects to his ankles and feet which required that

some of the foot and ankle bones be fused in two or more surgeries when he was a

young child. His feet are deformed. He does not remember those early surgeries,

or the exact number of them, and he has no records for them. His ankles basically

do not turn in or out, but that has not stopped him from walking during most of

his life. He used to work, have hobbies such as golf and scuba diving, and take

care of a house and his children. He developed degenerative disk disease later in

life. He stopped working in November 2000, after he fell off a ladder at work

from eight to ten feet up (he said because of his fused ankles), landing on his

buttocks and back. He was stiff and sore, but a full set of x-rays showed that he

did not break anything, and the doctor who examined him at that time expected

him to recover fully from that accident within a few weeks.

      As plaintiff has gotten older, he has complained more about pain in his

feet, ankles, shoulder, and back–and his inability to pay for medical care. That is

not to say that he has gone to the doctor often, because he has not. But he has

given up his children to his ex-wife, given up his house and moved in with his


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mother, and given up his hobbies. He stopped working because he says he cannot

walk or stand as much as is required due to pain. He lives a quiet life without a

car, staying at home and either sitting or lying down most of the day. He does

such activities as feeding his chickens, playing with his cat, reading, and

watching TV. He heats up microwave dinners to avoid having dishes to wash.

His mother does his laundry and other housework, such as vacuuming. The

administrative law judge (ALJ) commented, however, that even though plaintiff

had not worked for two years at the time of the ALJ’s decision, one of the

examining consultants had noted in July 2002 that plaintiff was a heavily

muscular man.

      The ALJ analyzed the claim under the five-step evaluation sequence. See

Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). The ALJ found at

step four that plaintiff could not return to his past relevant work as a construction

laborer, but that he retained the residual functional capacity (RFC) to perform a

wide range of sedentary work limited by his inability to “climb, balance, stoop,

kneel, crouch, [or] crawl” more than “occasionally.” Admin. R. at 19, 25. At

step five, the ALJ called a vocational expert (VE), who identified jobs that

plaintiff could do with that RFC. The Appeals Council denied review, making the

ALJ’s decision the Commissioner’s final decision. See id. at 13.




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      We review the Commissioner’s decision to determine whether it is

supported by substantial evidence and whether the correct legal standards were

applied. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial

evidence is “more than a mere scintilla. It means such relevant evidence as a

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

v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). “Although we do not

reweigh the evidence or try the issues de novo, we meticulously examine the

record as a whole, including anything that may undercut or detract from the ALJ’s

findings in order to determine if the substantiality test has been met.” Grogan,

399 F.3d at 1262 (citation omitted).

      Plaintiff challenges the ALJ’s RFC finding on appeal because the VE

testified that plaintiff could not work with the RFC specified by Dr. De La Garza,

an orthopedic surgeon at the Paris (Texas) Orthopedic Clinic who examined

plaintiff for the purposes of treatment in October 2002. This appeal centers on

plaintiff’s ability to stand, walk, and climb, because Dr. De La Garza found

plaintiff to be more limited than the ALJ did. See Aplt. Br. at 17.

      Plaintiff raises several specific allegations of error in the ALJ’s RFC

finding, but we consider it sufficient to address his arguments that “[t]he ALJ

fails to conduct [the required] analysis with any specificity or clarity that would

allow for meaningful review of his determination” and “[t]he ALJ does not note


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any conflicting or inconsistent evidence [to Dr. De La Garza’s opinion] from

other [medical] sources, he only notes the absence of medical evidence of other

treatment.” Aplt. Br. at 12-13 (citing Admin. R. at 22). These arguments have

merit, as the ALJ’s decision is frustratingly vague when it comes to his comments

that credible medical evidence justifies rejecting Dr. De La Garza’s opinion about

plaintiff’s RFC, but supports the ALJ’s own opinion about plaintiff’s RFC. See

Admin. R. at 19, 22.

      Some of the early medical evidence is not relevant to the ALJ’s RFC

finding. But Dr. De La Garza completed an RFC assessment (“medical source

statement”) in 2002, see id. at 220-221, two agency physicians (Drs. Seitsinger

and Kilgore) did consulting examinations in 1999 and 2002 without specifying

how long plaintiff could perform various functions, see id. at 164-69, 189-195,

and a non-examining agency physician did an RFC assessment in 2002, see id.

at 196-203. Dr. De La Garza’s RFC assessment was more restrictive than the

non-examining physician’s RFC assessment. The ALJ rejected both RFC

assessments as unsupported by the credible medical evidence and made an RFC

finding in between them. Compare id. at 21-22 (stating that agency physician’s

opinion is “overly optimistic”) and 22 (stating that Dr. De La Garza’s opinion is

“pessimistic”) with id. at 19 (ALJ’s RFC finding) and 25 (ALJ’s RFC finding

reprised). But the ALJ never specified what he believed the credible medical


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evidence to be, either for the purpose of rejecting the doctors’ RFC assessments

or for the purpose of supporting his own finding.

      After reviewing the ALJ’s decision and the record, we cannot determine

what evidence the ALJ relied on. He recited the findings of the consulting

examiners, id. at 20-21, but he did not state whether he believed or disbelieved

their findings, or whether or what he was taking from those findings that was

relevant to plaintiff’s RFC. Nor did the ALJ explain how he resolved the

discrepancies between each doctor’s findings and the other medical evidence, or

say anything about the passage of time between those examinations

(Dr. Seitsinger’s examination was in 1999, while Dr. Kilgore’s examination was

in 2002). Id. Although plaintiff’s congenital foot and ankle defects are

indisputable, the various doctors have made different findings at different times

as to plaintiff’s ability to turn his ankles at all, and have made different comments

about his gait and his complaints of pain. For example, Dr. Seitsinger said in July

1999 that plaintiff’s gait was normal, id. at 21, but Dr. Kilgore said in July 2002

that plaintiff’s heel and toe walking were weak and he walked with a limp, id.,

and Dr. De La Garza said in October 2002 that plaintiff had “severe gait

abnormalities” that not only make his feet and ankles hurt but make his back hurt

as well, causing him severe limitations, id. at 223.




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      “It is axiomatic that all of the ALJ’s required findings must be supported by

substantial evidence.” Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999)

(citing 42 U.S.C. § 405(g)). Because we cannot determine that the ALJ’s RFC

finding is supported by substantial evidence due to his lack of specificity, we

reverse.

      We note for the remand that although the ALJ clearly viewed

Dr. De La Garza as a treating physician, see Admin. R. at 22, it does not appear

that Dr. De La Garza qualifies as a treating physician under 20 C.F.R.

§§ 404.1502 and 416.902. Therefore, the ALJ should reconsider on remand how

Dr. De La Garza’s evidence should be evaluated under §§ 404.1527(d)(1)-(6) and

416.927(d)(1)-(6). In addition, although the ALJ rejected the non-examining

agency physician’s RFC assessment for different reasons, it is doubtful that this

checklist-style RFC assessment constitutes substantial evidence under Frey v.

Bowen, 816 F.2d 508, 515 (10th Cir. 1987).




                                         -7-
      The judgment of the district court is REVERSED with directions to

REMAND to the agency for additional proceedings consistent with this order and

judgment.

      Judge Hartz respectfully dissents.



                                                 Entered for the Court



                                                 David M. Ebel
                                                 Circuit Judge




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