                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         July 24, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    LY N ETTE R OM ER O,

                Plaintiff-Appellant,

    v.                                                    No. 06-6305
                                                   (D.C. No. 05-CV -01325-T)
    M ICH AEL J. ASTRU E, *                               (W .D. Okla.)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




         Plaintiff-appellant Lynette Romero appeals from an order of the district

court affirming the Commissioner’s decision denying her applications for Social

Security disability and Supplemental Security Income benefits (SSI).     We have


*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
determined that the Commissioner failed to evaluate properly the opinion of her

treating physician, Dr. Haddock, concerning her ability to stand and to walk. We

therefore reverse and remand with instructions to remand to the Commissioner for

further evaluation Dr. Haddock’s opinion and its effect on the determination of

her residual functional capacity (RFC). While M s. Romero also challenges the

administrative law judge (ALJ)’s evaluation of her cellulitis and obesity, and his

assessment of her credibility, we do not discern any error in these areas, and

therefore do not require reconsideration of them on remand.

      M s. Romero filed for benefits with a protected filing date of October 29,

2002, alleging disability based on tuberculosis, hepatitis C, asthma, severe

degenerative arthritis of the knee, hip pain, and reflux. 1 The agency denied her

applications initially and on reconsideration.

      On November 18, 2004, appellant received a de novo hearing before an

ALJ. The ALJ determined that appellant retained the RFC to perform sedentary

work, with only occasional stooping and limited by her “moderate fatigue,

anxiety, and discomfort.” Aplt. App. at 23. He found that she could not return to

her past relevant work as a nurse’s aide, but that there were a significant number

of other jobs which she could perform in the national or regional economy. He

therefore concluded that she was not disabled within the meaning of the Social



1
      The A LJ also identified “degenerative disc disease” among her severe
impairments. Aplt. A pp. at 25.

                                         -2-
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).

      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 a sufficient RFC to

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

experience. See id. at 751.

      On appeal, M s. Romero raises two issues. She first contends that the ALJ

erred by developing an RFC that did not include all of her limitations.

Specifically, she argues that the RFC is flawed because the ALJ failed to

(1) evaluate properly the opinion of her treating physician, Dr. Haddock,


                                          -3-
concerning her ability to stand and walk; (2) include a restriction on her ability to

sit for a full work day, based on her cellulitis; and (3) give adequate consideration

of the effect of her morbid obesity on her ability to work. She also argues that the

ALJ failed to properly evaluate her credibility.

      1. ALJ’s RFC Assessment

      M s. Romero contends that the ALJ’s RFC was flaw ed because it failed to

include all of her limitations. As noted, the ALJ found that M s. Romero could

perform sedentary work involving only occasionally stooping and that she “would

have moderate fatigue, anxiety, and discomfort.” Aplt. App. at 23. Based on

these limitations, a vocational expert (VE) opined that there were sedentary,

unskilled jobs available that M s. Romero could perform in the national and

regional economy. Id. at 379-80. M s. Romero argues, however, that she is

actually more severely limited than the A LJ’s RFC indicates.

             A. Dr. H addock’s O pinion

      The A LJ imposed no restriction on standing or walking in M s. Romero’s

RFC, other than the limitations inherent in sedentary work. 2    Sedentary work

requires an ability to stand and/or walk “occasionally,” 20 C.F.R. §§ 404.1567(a),

416.967(a), up to two hours per day. See SSR 96-9P, 1996 W L 374185, at *3.

The A LJ’s hypothetical question to the VE is consistent with this definition. It

2
       He did state that she would suffer from “moderate discomfort,” Aplt. App.
at 23, but it is unclear what, if any, limitation on her ability to stand and walk can
be derived from this general observation.

                                          -4-
reflects his assessment that M s. Romero could stand or walk for up to two hours

in a work day. Aplt. A pp. at 379.

      But in a note dated October 29, 2004, M s. Romero’s treating physician

Dr. Haddock stated:

      Lynette Romero has a severe problem with her lower back, right hip
      and thigh. She has pain when she stands or tries to walk over
      10 yards. The pain becomes too severe and she must stop and rest.
      She is disabled for any work requiring her to stand or walk.

Id. at 287 (emphasis added).

      W hen evaluating the opinion of a treating physician such as Dr. Haddock,

the ALJ must follow a sequential analysis to determine whether the opinion is

entitled to controlling weight, or whether it is entitled to some lesser,

non-controlling weight. 3 W here the ALJ rejects the treating physician’s opinion,



3
       In the first step of this analysis, the ALJ should consider whether the
opinion is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is consistent with the other substantial evidence in the
record. See 20 C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003). If the answer to both these questions is “yes,” he must
give the opinion controlling weight. See Watkins, 350 F.3d at 1300. But even if
he determines that the treating physician’s opinion is not entitled to controlling
weight, the ALJ must then 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. See Watkins, 350 F.3d at 1300.
These factors include:

      (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
                                                                      (continued...)

                                          -5-
he must give “specific, legitimate reasons” for doing so. Drapeau v. M assanari,

255 F.3d 1211, 1213 (10th Cir. 2001).

         After summarizing Dr. H addock’s opinion, see id. at 21-22, the ALJ

rejected his ultimate conclusion summarily, noting “[t]here are no treatment

records by any physician to support [his] statement” that M s. Romero was

disabled for any work requiring her to stand or w alk. Id. at 23. This reasoning

was the only justification the A LJ provided for also dismissing Dr. Haddock’s

opinions that M s. Romero has “severe problem[s] w ith her lower back, right hip

and thigh;” that she “has pain when she stands or tries to walk over 10 yards;”

and that “[t]he pain becomes too severe and she must stop and rest.” Id. at 287.

         Dr. Haddock’s conclusions concerning M s. Romero’s pain and limitation

(separate and apart from his ultimate conclusion about her inability to do any

work requiring her to stand or walk) find support in the treatment records and

therefore could not be cursorily dismissed for the reason the ALJ gave: lack of

medical evidence. The record is replete w ith evidence that M s. Romero




3
    (...continued)
          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).


                                            -6-
experiences difficulties with both standing and walking. M oreover, her

limitations on standing and walking appear inconsistent with a full range of

sedentary work.

      On April 25, 2003, agency consulting physician Dr. Vallis Anthony

examined M s. Romero and found her suffering from degenerative joint disease of

the right hip and knee, with marked crepitation. Aplt. App. at 160. He noted that

it w as very painful for her to be up very long on both her hip and her knee. Id. at

158. She could stand for about five minutes, range of motion in her right hip was

decreased and painful, and her right knee was swollen and quite tender at the joint

line. She walked around the room with difficulty and pain and Dr. Anthony noted

that she had a significant limp. The A LJ did not discount Dr. Anthony’s

observations concerning M s. Romero’s difficulties in standing and walking.

      Dr. Anthony’s observations were borne out clinically on M ay 15, 2003,

when Dr. M olskness of the Sooner M edical Center examined x-rays of

M s. Romero’s right knee. He noted fluid loss in the joint space; marked sclerotic

changes involving the articular surface of the medial lateral femoral condyle,

medial lateral fibula and tibial table; and thinning of the paterallar femoral joint

space. His impression was that she suffered from a severe degree of degenerative

joint disease in the knee.

      The medical record contains numerous other references to M s. Romero’s

back, knee, or joint pain. See id. at 92; 113; 116; 141; 149-50; 254; 257; 292.

                                          -7-
Notably, she has taken narcotic medications for her pain over the course of many

years. The ALJ’s cursory statement that there was no medical evidence to

support Dr. Haddock’s opinion, while perhaps adequate to reject the physician’s

opinion that she could not do any work that required standing or walking,

provides an insufficient basis to reject the remainder of the opinion.

      But the Commissioner urges us to affirm the ALJ’s decision on a different

basis: that the jobs he eventually identified do not actually require any standing or

walking. At the hearing, M s. Romero’s attorney asked the VE whether an

inability to stand or walk would affect her ability to perform the jobs the VE had

identified. The VE responded that the unskilled occupations he had listed (which

were those the ALJ ultimately relied upon in his decision) typically required no

standing or walking. Aplt. App. at 380. The Commissioner cites the V E’s

response but omits the remainder of the colloquy. The attorney, noting that the

ALJ had limited M s. Romero to sitting for six hours during the work day,

followed up by asking the VE whether there were jobs she could perform that

would require her to work only for the amount of time she could spend sitting: six

hours a day. The VE acknowledged that such a limitation would significantly

reduce the sedentary job base. Id. at 381. The ALJ’s decision makes no mention

of the effect of this temporal restriction on the availability of a significant number

of jobs that M s. Romero could perform in the national or regional economy. W e

cannot, therefore, affirm his decision on this basis.

                                          -8-
      In sum, even if the ALJ’s cursory dismissal of Dr. Haddock’s ultimate

opinion met the procedural requirements of the sequential analysis and was

supported by substantial evidence, he provided no reason for rejecting the

remainder of Dr. Haddock’s opinion concerning the pain and consequent

limitations M s. Romero experienced with standing or prolonged walking. In

particular, the ALJ did not discuss whether, in light of Dr. Haddock’s description

of her pain on standing and walking and the extensive detail concerning these

problems in the medical evidence, a greater restriction on standing or walking

than the full tw o hours associated with sedentary work might be appropriate. See

Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (requiring ALJ to

consider “the degree to which the physician’s opinion is supported by relevant

evidence”) (emphasis added; internal quotation marks omitted). W e must

therefore remand for a more complete evaluation of Dr. H addock’s entire opinion.

This evaluation should include a complete analysis of the opinion using the

sequential analysis discussed in Watkins. Also, on remand, if the ALJ w ishes to

rely on jobs that require little or no standing or walking, he should give

consideration to whether such jobs are consistent with any durational limitation

on sitting that he finds (such as a limitation on six hours of sitting in an

eight-hour w ork day).




                                           -9-
             B. Cellulitis

      M s. Romero next argues that the ALJ failed to include any restriction on

her ability to sit for six hours per day, and her need to elevate her leg, based on

her history of cellulitis. As the Commissioner points out, however, M s. Romero’s

cellulitis has been only episodic and is currently in remission. Therefore, the ALJ

did not err in failing to include limitations due to cellulitis in his RFC.

             C. O besity

      M s. Romero further contends that the ALJ failed to give adequate

consideration to the effect of her morbid obesity on her ability to work,

particularly when considered in combination with her other impairments.

M s. Romero did not allege disability based on obesity, and the A LJ did not list

obesity among her severe impairments at step tw o of the sequential analysis.

Although her physicians included obesity as a diagnosis, none of the medical

evidence identified any specific restriction on her ability to work attributable to

obesity. Nor did she attribute any of her restrictions to obesity in her testimony at

the hearing. Finally, the medical records, Aplt. App. at 92, 159, and her

testimony at the hearing, id. at 358, indicate that her weight at the alleged

disability onset date was essentially the same as it had been for a number of

years, including during the time she was working. W e therefore conclude that the

ALJ permissibly determined that her obesity did not constitute a severe

impairment because there was no evidence it had “more than a minimal effect on

                                         -10-
[M s. Romero’s] ability to do basic work activities.” SSR 02-1P, “Titles II and

XVI: Evaluation of Obesity,” 2000 W L 628049, at *4.

      2. ALJ’s Credibility A ssessment

      M s. Romero contends that the ALJ failed to conduct an adequate evaluation

of her credibility and therefore wrongly discounted her testimony at the hearing.

The A LJ concluded that “the claimant’s allegations regarding her limitations are

not totally credible for the reasons set forth in the body of the decision.” A plt.

App. at 26. In his decision, he identified the factors that he was required to

consider w hen evaluating her subjective complaints. Id. at 22 (citing 20 C.F.R.

§§ 404.1529 and 416.929, and SSR 96-7p). He then summarized her testimony,

discussed a number of the factors, and listed his reasons for discounting the

testimony. Id. at 23. Specifically, he stated that she “has not been compliant

with her diet, medication, is a smoker with asthma and has not always kept

medical appointment[s] on a regular basis.” Id.

      In determining a claimant’s credibility, the A LJ may consider such factors

as attempts to find relief, use of medications, and willingness to try any treatment

prescribed. Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987). “C redibility

determinations are peculiarly the province of the finder of fact, and we will not

upset such determinations when supported by substantial evidence.” Kepler v.

Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted). W hile the ALJ

must cite specific evidence relevant to the factors used in evaluating a claimant’s

                                         -11-
subjective complaints, and explain why if he concludes those complaints are not

credible, see id., this process “does not require a formalistic factor-by-factor

recitation of the evidence,” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

“So long as the ALJ sets forth the specific evidence he relies on in evaluating the

claimant’s credibility, [the procedural requisites] are satisfied.” Id. Our review

of the ALJ’s decision persuades us that the ALJ sufficiently provided his reasons

and stated the evidence he relied upon in finding M s. Romero’s testimony only

partially credible.

      M s. Romero argues that the ALJ’s reasons were not supported by

substantial evidence. On the contrary, the record is replete with evidence of her

non-compliance with medical advice, including over a dozen occasions in which

she was warned to stop mixing methadone and narcotic medications. Aplt. App.

at 302-16. W hile she did reduce the amount she smoked, it is significant that her

doctors’ advice to quit smoking was made in the context of her asthma, for which

she had been admitted to the hospital, even as she continued smoking. Finally,

the record does reflect numerous missed appointments with her doctors. W e

conclude that the ALJ’s reasons for discounting her credibility were supported by

substantial evidence.




                                         -12-
      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 for further proceedings in accordance with this order and

judgment.


                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




                                       -13-
