                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 9 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMES G. ARMER,

                Plaintiff-Appellant,

    v.                                                    No. 99-7128
                                                    (D.C. No. 98-CV-424-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , 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      This order and judgment is not binding precedent, except under the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 James G. Armer appeals from the denial of his claim for social

security disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g). We review the agency’s decision on the whole record to

determine only whether the factual findings are supported by substantial evidence

and the correct legal standards were applied.     See Goatcher v. United States Dep’t

of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not

reweigh the evidence or substitute our judgment for that of the agency.       See

Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).

       Claimant was born in 1952. He is married and has two children, one of

whom still lives at home. He has an eighth-grade education and limited math and

reading skills. Appellant’s App., Vol. II at 177-78. He has never written a check

and does not pay his family’s bills or balance the checkbook.       See id. at 193-94.

He last worked at Baldour Electric from 1979-84 as a janitor and as a motor

assembler. Before that, he worked at several other companies. He has had double

bypass heart surgery, carpal tunnel surgery on both arms, and surgery on his right

shoulder. He also has documented back problems. He filed his claim for benefits

on September 1, 1995, alleging a disability beginning on December 19, 1994, due

to headaches and severe pain in his neck, shoulders, back, hands, right leg, and

upper torso resulting from the series of injuries and surgeries to his neck, back,

shoulder, hands, and heart. He alleged that he cannot sit up straight,     see id.


                                            -2-
at 182, 187, 201, cannot stand for more than ten or fifteen minutes,       see id. at 192,

201, and cannot hold his arms up for any length of time,      see id. at 184-85, 201.

His right foot was once run over by a forklift and he walks with a limp,       see id.

at 188, although he tries to walk for fifteen to twenty minutes per day,      see id.

at 190. Because of cramps in his hands, as well as his limited education, it is

hard for him to write.   See id. at 178, 184. He also has some tingling in his right

hand. See id. at 192. He no longer goes fishing or hunting or visiting with

friends away from his home.      See id. at 190-91. He goes to church and to the

store, but does little else besides helping his wife with the dishes, watching

television from his recliner, and reading his Bible.     See id. at 177, 185, 187, 191,

192, 203. He said that he cannot afford doctor visits or prescription medications

because he did not receive worker’s compensation benefits, does not have medical

insurance of his own, and his wife’s insurance does not cover the cost of

medication or enough of the cost of doctor visits.      See id. at 179-80, 181, 193,

196.

       The administrative law judge (ALJ) issued his decision on March 26, 1997.

He found at step four that claimant did not retain the residual functional capacity

(RFC) to return to any of his past jobs, which were unskilled and required light or

medium exertion. The ALJ decided, however, that claimant retained the RFC for

unskilled sedentary work that did not require more than occasional bending,


                                             -3-
stooping, crouching, or climbing, and that would allow him to change positions

from time to time.   See id. at 20. The ALJ did not make a specific finding about

claimant’s asserted manipulative impairments, but made a general finding that

claimant had residuals from carpal tunnel syndrome without specifying what these

residuals were.   See id. (finding 3). The ALJ made no specific finding about

claimant’s ability to sit, stand, or walk, but stated that “claimant would need to

change positions from time to time to relieve his symptomatology.”         Id.

(finding 7). At step five, the ALJ used Rule 201.24 of the medical-vocational

guidelines as a framework for a decision that claimant was not disabled.         See

20 C.F.R. pt. 404, subpt. P, app. 2. He posed some hypothetical questions to a

vocational expert (VE). The VE testified that there were jobs that claimant could

perform under all but one of the scenarios, and gave clerical mailer and product

assembly as two examples. When asked whether claimant could work with all of

the impairments he alleged to be true, however, the VE answered that he could

not. The ALJ concluded that claimant was not disabled.

      Claimant argues on appeal, first, that the ALJ’s finding that he retained the

RFC for limited sedentary work is not supported by substantial evidence because

the ALJ: (a) disregarded the only treating physician’s opinion in the record;

(b) failed to obtain the consultative examiner’s opinion regarding claimant’s RFC

as required by the regulations; (c) failed to follow the regulations for RFC as


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further explained in Social Security Ruling 96-9p; and (d) relied on the absence of

evidence contrary to Thompson v. Sullivan , 987 F.2d 1482 (10th Cir. 1993). He

also argues, second, that the ALJ’s finding that he could perform a significant

number of sedentary jobs is not supported by substantial evidence because:

(a) his manipulative impairment was not included in the hypothetical questions to

the VE; and (b) the jobs the VE identified require repetitive use of the hands

according to the Dictionary of Occupational Titles.

       RFC is a “function-by-function assessment,” Social Security Ruling 96-9p,

1996 WL 374185, at *2, which includes claimant’s ability to sit, stand, and walk,

and his manipulative and postural functions,      see 20 C.F.R. § 404.1545(b). The

agency acknowledges that “[m]ost unskilled sedentary jobs require good use of

both hands and the fingers; i.e., bilateral manual dexterity.” Social Security

Ruling 96-9p, 1996 WL 374185, at *8. Thus, claimant’s asserted manipulative

impairments matter greatly to his claim. Moreover, “[t]he RFC assessment must

be specific as to the frequency of the individual’s need to alternate sitting and

standing” because “[t]he extent of the erosion [of the occupational base] will

depend on the facts in the case record, such as the frequency of the need to

alternate sitting and standing and the length of time needed to stand.”   Id. at *7.

The ALJ’s findings also must be specific because the hypothetical questions




                                            -5-
submitted to the VE must state the claimant’s impairments “with precision.”

Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted).

      The ALJ noted in the body of his decision that a consultative examination

performed in November 1995 showed that claimant had good dexterity in his

hands. See Appellant’s App., Vol. II at 17, 161. However, claimant correctly

points out that the examiner’s report does not include an RFC assessment, even

though the regulation calls for such findings in a complete consultative

examination. See 20 C.F.R. 404.1519n(c)(6). The agency must bear the

responsibility to ensure that a consultative examination conforms to the

regulations. In any case, we cannot conclude that the ALJ accepted the

consultative examiner’s evidence as true because he found that claimant had

unspecified residuals from carpal tunnel syndrome, not good dexterity in his

hands. See Appellant’s App., Vol. II at 20 (finding 3). The ALJ’s finding that

claimant would have to change positions from time to time to relieve his

symptomatology is equally vague.      See id. at 20 (finding 7). The ALJ erred by

failing to make specific findings assessing the extent of claimant’s manipulative

impairments and claimant’s ability to sit, stand, and walk.

      To the extent the ALJ made a finding about claimant’s RFC, he relied on

the 1995 opinions of Drs. Greenlaw and Parker at the Parker Orthopaedic and

Spine Institute, where claimant sought treatment at least from 1993-96.    See id.


                                           -6-
at 15, 151-59, 170. On May 31, 1995, Dr. Parker noted on a progress sheet that

claimant had “marked degenerative changes in the spine,” a five percent

permanent impairment to the back and therefore to the body as a whole, and

“should refrain from heavy lifting, pushing, pulling, repetitive bending or isolated

lifts over 10 pounds.”   1
                             Id. at 152. On September 22, 1995, Dr. Greenlaw noted

on a progress sheet that, in light of Dr. Parker’s opinion and claimant’s magnetic

resonance imaging (MRI) examinations, claimant was capable only of “very

sedentary and light type of work not requiring any activities that would aggravate

his present problem with his cervical or lumbar spine.”        Id. at 151.

       Claimant points out that on May 29 and July 25, 1996, Dr. Thompson

issued statements that claimant could not sit “for any length of time,”      id. at 170,

and was disabled on account of his back problems,         see id. at 171. He argues that

the ALJ should have accepted Dr. Thompson’s opinion. The ALJ rejected

Dr. Thompson’s opinion on the grounds that: (1) it was conclusory and

unsupported by diagnostic testing, laboratory reports, or clinical findings; (2) it

appeared to have been prepared for the purpose of obtaining financial assistance

from the Cherokee Nation; and (3) it conflicted with other medical evidence

related to this claim for social security benefits.    See id. at 18, 170-71.


1
       Claimant testified that Dr. Parker took him off work and said it would be
permanent. See Appellant’s App., Vol. II at 180-81, 193. We find no support for
this claim in the medical evidence.

                                              -7-
      Although claimant’s assertion that Dr. Thompson was his only treating

physician is without merit, the ALJ’s stated reasons for rejecting Dr. Thompson’s

opinion are belied by the record. Contrary to the ALJ’s view, we do not consider

Dr. Thompson’s opinion to be conclusory, unsupported, or in conflict with other

medical evidence. Rather, it is clear from the progress sheets, as well as from the

additional explanation provided by claimant and his counsel at the hearing, that

Dr. Thompson was one of claimant’s treating physicians at the Parker Institute.   2



It is also clear that Dr. Thompson based his opinion on claimant’s previous

records, as he stated on July 25, 1996, that “[t]he patient is unchanged from his

prior exam.”   Id. at 170. The prior exam in the record is Dr. Greenlaw’s

September 22, 1995 exam, which was expressly based on MRI examinations from

1993 and 1994.    See id. at 151. It is not necessary for each and every doctor to

support his or her opinion with new medical tests.

      Dr. Greenlaw’s conclusion in September 1995 was that “[t]he only type of

work that this patient could do would be a very sedentary and light type of work.”

Id. Dr. Thompson’s conclusion the next year was that claimant was “still unable

to sit for any length of time because of progressive pain in the neck and low



2
       At the hearing, claimant and his counsel informed the ALJ that Dr. Parker
originally owned the practice, that Dr. Greenlaw succeeded Dr. Parker for a short
time after his death, and that Dr. Thompson then succeeded Dr. Greenlaw.   See
Appellant’s App., Vol. II at 181-82.

                                           -8-
back,” id. at 170, and was disabled due to “[c]entral disc protrusion at C6-7

levels, [and] degenerative disc changes at T11-12, L4-5, and L5-S1 levels,”          id.

at 171. Dr. Thompson’s statements do not conflict with Dr. Greenlaw’s opinion;

rather, they demonstrate the progressive nature of claimant’s back problems.

Claimant testified that his pain had gotten worse over time.      See id. at 196-97.

       The government points to RFC assessments made in 1995 and 1996 by

agency physicians as substantial evidence to support the ALJ’s conclusion that

claimant can sit long enough to do sedentary work.       See id. at 80-87. As we have

noted in the past, these assessments typically “consist[] solely of boxes checked

on the [agency’s] forms to indicate [the assessors’] conclusion[s].”       Frey v.

Bowen , 816 F.2d 508, 515 (10th Cir. 1987). For that reason, we have rejected

this type of conclusory assessment of a claimant’s capabilities, holding that

“[s]uch evaluation forms, standing alone, unaccompanied by thorough written

reports or persuasive testimony, are not substantial evidence.”        Id. The two

agency assessments in this case indicate, with a checkmark but without

explanation, that claimant can sit for about six hours out of an eight-hour

workday. See Appellant’s App., Vol. II at 81, 89. We hold that they do not

constitute substantial evidence to support the ALJ’s decision, and conclude that

the ALJ erred by rejecting Dr. Thompson’s opinion that claimant has essentially




                                            -9-
no capacity to sit. For all of the above reasons, the agency’s denial of benefits

must be reversed. It is unnecessary to discuss claimant’s remaining arguments.

       “When a decision of the [Commissioner] is reversed on appeal, it is within

this court’s discretion to remand either for further administrative proceedings or

for an immediate award of benefits.”      Ragland v. Shalala , 992 F.2d 1056, 1060

(10th Cir. 1993). “Outright reversal and remand for immediate award of benefits

is appropriate when additional fact finding would serve no useful purpose.”

Sorenson v. Bowen , 888 F.2d 706, 713 (10th Cir. 1989) (quotation omitted). The

primary activity of sedentary work is sitting.     See 20 C.F.R. § 404.1567(a).

“[S]itting should generally total approximately 6 hours of an 8-hour workday.”

Social Security Ruling 83-10, 1983 WL 31251, at *5. Because Dr. Thompson’s

opinion mandates a finding that claimant has essentially no capacity for sitting,

the ALJ would be unable to sustain his step-five burden of identifying sedentary

jobs that claimant can perform if the case were remanded.      See Thompson ,

987 F.2d at 1487. We therefore find no reason for additional administrative

proceedings in this case, now nearly five years old, and instead exercise our

discretion to remand for an immediate award of benefits.

       The judgment of the United States District Court for the Eastern District of

Oklahoma is REVERSED, and the case is REMANDED with directions to




                                            -10-
remand, in turn, to the Social Security Administration for an immediate award of

benefits.


                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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