                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 4 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JOY VICTORY,

                Plaintiff-Appellant,

    v.                                                    No. 03-7129
                                                    (D.C. No. 03-CV-207-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before McCONNELL , HOLLOWAY , and PORFILIO , 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      This order and judgment is not binding precedent, except under the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.
      Claimant Joy Victory appeals the magistrate judge’s order affirming the

Commissioner’s decision to deny her application for Social Security disability

insurance and supplemental security income benefits.    1
                                                            Claimant contends on

appeal that the administrative law judge (ALJ) did not properly evaluate the

opinions of her treating physicians. We agree, and we reverse and remand for

further proceedings.

                                  BACKGROUND

      Claimant applied for benefits in 2000, alleging an inability to work since

April 8, 1994, due to a herniated disc in her back, a neck fusion, and carpal tunnel

syndrome. Following a work injury on April 8, 1994, claimant was diagnosed

with disc derangement and spondylosis at three levels in her cervical spine, and a

herniated disc. She underwent anterior diskectomy and fusion surgery in August

1995, and underwent another surgery for posterior fusion and posterior wiring in

March 1996.   2
                  She continued to have problems with her lumbar spine, and was


1
      The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c).

2
       Claimant was last insured for disability benefits on June 30, 1997.      See
Henrie v. United States Dep't of Health & Human Servs.         , 13 F.3d 359, 360 (10th
Cir. 1993) (stating claimant must establish onset of disability prior to date insured
status expired). There is no medical evidence in the record prior to June 30, 1997
other than one report from Dr. Billings. To receive supplement security income
benefits, which claimant also seeks, however, she must prove only that she has
become disabled. See Kepler v. Chater , 68 F.3d 387, 389 (10th Cir. 1995).

                                          -2-
again diagnosed with disc derangement in her lumbar spine. She has gone to pain

management specialists and undergone epidural steroid injections and nerve block

injections.

       After an administrative hearing at which a vocational expert (VE) testified,

the ALJ determined that claimant was not disabled at step four of the five-step

sequential evaluation process,   see Williams v. Bowen , 844 F.2d 748, 750-52

(10th Cir. 1988), because she had the residual functional capacity (RFC) to

perform a narrow range of light work, and could, therefore, return to her past

relevant work as a waitress. The ALJ also      determined, in the alternative at step

five, that she had the RFC to perform work that was available in the national

economy.

       This court reviews “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). Claimant contends that the ALJ failed to follow correct

legal standards in evaluating the reports and opinions from her treating

physicians. She argues the ALJ made only selective use of the reports from

Drs. Billings and Covington, completely ignored the opinions of Drs. Trinidad

and Hale, and failed to explain what weight, if any, he afforded these reports.

The magistrate judge rejected these claims, stating that the ALJ thoroughly


                                             -3-
reviewed the medical opinions of Drs. Billings, Covington, and Hale. We find no

record support for the magistrate judge’s conclusion and agree with claimant that

the ALJ failed to apply correct legal standards in evaluating the opinion of her

treating and examining physicians.

                           TREATING PHYSICIAN RULE

       “According to what has come to be known as the treating physician rule,

the Commissioner will generally give more weight to medical opinions from

treating sources than those from non-treating sources.”     Langley v. Barnhart ,

373 F.3d 1116, 1119 (10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)). “In

deciding how much weight to give a treating source opinion, an ALJ must first

determine whether the opinion qualifies for ‘controlling weight.’”     Watkins , 350

F.3d at 1300. An ALJ is required to give the opinion of a treating physician

controlling weight if it is both: (1) “well-supported by medically acceptable

clinical and laboratory diagnostic techniques;” and (2) “consistent with other

substantial evidence in the record.”   Id. (quotation omitted). “[I]f the opinion is

deficient in either of these respects, then it is not entitled to controlling weight.”

Id.

       Even if a treating physician’s opinion is not entitled to controlling weight,

however, “‘[t]reating source medical opinions are still entitled to deference and

must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and


                                           -4-
416.927.’” Id. (quoting Social Security Ruling (SSR) 96-2p, 1996 WL 374188, at

*4). Those 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.

Id. at 1301 (quotation omitted);   see 20 C.F.R. §§ 404.1527 and 416.927. After

considering these factors, “the ALJ must give good reasons in [the] . . . decision

for the weight he ultimately assigns the opinion.”      Watkins, 350 F.3d at 1301

(quotation omitted). “Finally, if the ALJ rejects the opinion completely, he must

then give specific, legitimate reasons for doing so.”     Id. (quotations omitted).

       A. Dr. Covington . In reaching his determination that claimant has the RFC

to return to her past relevant work as a waitress or to perform other work

available in the national economy, the ALJ rejected an opinion from one of

claimant’s treating physicians, Dr. Covington, with respect to her exertional

limitations and physical abilities, and accepted, instead, the opinion of a

non-examining state agency physician regarding her exertional limitations.

Dr. Covington is a neurosurgeon who examined claimant in March, April, and

August 1998, and on March 22, 2001, and received reports throughout 1998 to


                                            -5-
2001 from medical specialists to whom he referred her with respect to her medical

condition.

       On April 3, 2001, Dr. Covington completed a Physician Statement of

Physical Abilities, in which he indicated on a checklist that claimant could sit,

stand, or walk for only a total of one-to-three hours in an eight-hour workday;

could only lift and carry up to ten pounds occasionally; could never push, pull,

squat, twist, climb, balance, stoop, kneel, or crawl; could only occasionally reach,

and could not use her hands repetitively for simple or firm grasping, fine

manipulation, or use of vibrating tools.     See Aplt. App. at 130. If

Dr. Covington’s opinion as to claimant’s exertional and postural limitations is

accurate, claimant is incapable of doing sedentary work, which generally requires

sitting for a total of six hours in an eight-hour workday.   See SSR 96-9p, 1996

WL 374185, at *3, *6 (July 2, 1996). This would be contrary to the ALJ’s finding

at step four that claimant is capable of performing her past relevant work as a

waitress, which the VE characterized as a light exertional-level job, and his

finding at step five that she could perform sedentary work with frequent use of

her hands for fine manipulation.     See Williams , 844 F.2d at 751 (explaining that

the burden at step five is on Commissioner to show that claimant retains the RFC

to perform specific jobs that exist in the national economy).




                                             -6-
      The ALJ rejected Dr. Covington’s opinion, however, and never included the

exertional and postural limitations he described in the hypothetical questions the

ALJ posed to the VE. The ALJ stated that Dr. Covington’s April 3, 2001

statement was brief and conclusory and provided very little explanation of the

evidence he relied upon in forming this opinion. The ALJ concluded that

Dr. Covington must have relied quite heavily upon claimant’s subjective

complaints. Instead, the ALJ relied upon a standardized checklist of exertional

and postural limitations prepared by a state agency physician, Dr. Woodcock, who

reviewed claimant’s medical file, but apparently never examined her.

      The ALJ’s finding that Dr. Covington’s opinion was based on claimant’s

own subjective report of her symptoms impermissibly rests on his speculative,

unsupported assumption.   See Langley , 373 F.3d at 1121 (holding that ALJ may

not reject a treating physician’s opinion based on speculation). We find no

support in the record for the ALJ’s conclusion. Nothing in Dr. Covington’s report

indicates that he based his opinion on claimant’s subjective complaints, and the

ALJ’s finding ignores all of Dr. Covington’s examinations, medical tests, and

reports. Indeed, the ALJ’s discussion of Dr. Covington omits entirely his

March 22, 2001 examination and report.   3
                                               His April 3, 2001 statement might well


3
      The Commissioner erroneously argues, as she did before the district court,
that Dr. Covington’s April 3, 2001 statement should not be given weight because
                                                                    (continued...)

                                         -7-
have been based on his recent first-hand examination and observation of claimant

during this examination, performed less than two weeks earlier, rather than on

claimant’s subjective complaints, as the ALJ speculated.         See Morales v. Apfel ,

225 F.3d 310, 317 (3d Cir. 2000) (noting that the treating physician’s opinion may

“reflect expert judgment based on a continuing observation of the patient’s

condition over a prolonged period of time”).

       Nevertheless, even assuming that the ALJ properly concluded that

Dr. Covington’s statement regarding claimant’s exertional and postural limitations

was not well-supported, and therefore was not entitled to controlling weight, the

ALJ was not entitled to completely reject his opinion on this basis alone; rather,

he was obligated to consider what lesser weight the opinion should be given,

using all of the relevant factors set forth in sections 404.1527 and 416.927.      See

Watkins , 350 F.3d at 1300. The ALJ failed to do so; he never addressed in his

decision whether the opinion was entitled to less-than-controlling weight, and he

never discussed any of the factors set forth in sections 404.1527 and 416.927.

See Langley , 373 F.3d at 1120 (finding improper evaluation of treating physician




3
 (...continued)
he had not examined claimant since August 1998. This statement is not accurate,
because the record includes Dr. Covington’s March 22, 2001 examination of
claimant, see Aplt. App. at 134, a fact the Commissioner elsewhere acknowledged
in her recitation of the facts, compare Aplee. Br. at 21 with 8.

                                            -8-
opinion where ALJ failed to consider what lesser weight to give opinion and

failed to discuss the relevant factors).

      Compounding this error, the ALJ improperly discounted Dr. Covington’s

opinion about claimant’s limitations in favor of the opinion of Dr. Woodcock, a

non-examining agency physician, who filled out a standardized checklist that

provided no better explanation for the basis of the opinions contained therein than

Dr. Covington’s April 3, 2001 statement. “[T]he opinions of physicians who have

seen a claimant over a period of time for purposes of treatment are given more

weight over the views of consulting physicians or those who only review the

medical records and never examine the claimant.”    Williams , 844 F.2d at 757; see

also Robinson v. Barnhart , 366 F.3d 1078, 1084 (10th Cir. 2004) (“[t]he opinion

of an examining physician is generally entitled to less weight than that of a

treating physician, and the opinion of an agency physician who has never seen the

claimant is entitled to the least weight of all.”). The ALJ’s task is to examine a

non-examining physician’s report “to see if it outweighs the treating physician’s

report, not the other way around.”   Reyes v. Bowen , 845 F.2d 242, 245 (10th Cir.

1988) (quotation omitted). Here, the ALJ gave no reason for rejecting the

treating-physician opinion of Dr. Covington in favor of Dr. Woodcock’s opinion.

Because the ALJ failed to follow the correct legal standards in evaluating

Dr. Covington’s opinion, which undermines the ALJ’s assessment of claimant’s


                                           -9-
ability to perform either her past relevant work or to do other jobs that exist in the

national economy, we must remand for further proceedings.

       B. Dr. Hale . Dr. Hale is an osteopath to whom Dr. Covington referred

claimant for pain management and other treatment. Dr. Hale examined claimant

in April, July and November 1998, February and March 1999, and May 2001. The

administrative record includes six detailed reports from Dr. Hale describing his

examination and treatment of claimant. He diagnosed her with significant

degenerative disc disease, limited mobility in her neck and chronic neck pain, and

carpal tunnel syndrome. He performed cervical and lumbar discogram diagnostic

tests on claimant, prescribed pain medication for her, and gave her epidural

steroid injections. Inexplicably, the ALJ’s decision makes no mention whatsoever

of Dr. Hale’s reports or opinions, and gave no reason for disregarding his

opinion. 4 This was, of course, clear legal error.   See 20 C.F.R. §§ 404.1527(d)

and 416.927(d) (“Regardless of its source, we will evaluate every medical opinion

we receive”); SSR 96-5P, 1996 WL 374183, at *1 (“[O]pinions from any medical

source about issues reserved to the Commissioner must never be ignored.”);       see

also Watkins , 350 F.3d at 1301 (repeating well-established rule that treating



4
       The ALJ did incorrectly attribute one of Dr. Hale’s treatment records to
Dr. Covington, but this does not demonstrate, as the magistrate judge concluded,
that the ALJ considered Dr. Hale’s reports and opinions in accordance with the
requirements of sections 404.1527(d) and 416.927(d).

                                            -10-
physician’s opinion may be disregarded only if specific, legitimate reasons are

given); Huston v. Bowen , 838 F.2d 1125, 1131 (10th Cir. 1988) (“An ALJ may

not ignore the evidence and make no findings.”)       . The ALJ’s failure to give any

consideration to Dr. Hale’s medical evidence, to evaluate this evidence by

applying the relevant factors to be used in weighing a medical opinion, and to

give any specific, legitimate reason for rejecting his opinion was contrary to the

requirements of the governing regulations, sections 404.1527(d) and 416.927(d).

On remand, the ALJ must consider Dr. Hale’s evidence in accordance with the

correct legal standards.

       C. Dr. Trinidad . Dr. Trinidad is an osteopath to whom Dr. Covington

referred claimant for examination. He examined claimant only once, on

February 16, 2000, and performed range-of-motion and neurological tests on her.

He concluded that claimant is permanently and totally disabled. The ALJ made

no mention whatsoever of Dr. Trinidad’s examination and report in his decision.

       “[T]he opinion of an examining physician who only saw the claimant once

is not entitled to the sort of deferential treatment accorded to a treating

physician’s opinion.”        Doyal v. Barnhart , 331 F.3d 758, 763 (10th Cir. 2003).

Nevertheless, “[e]ven though Dr. [Trinidad] was not a treating physician, the ALJ

was still required to consider his opinion, . . . and to provide specific, legitimate

reasons for rejecting it.”     Id. at 764 (citing § 416.927(d) and SSR 96-5P, 1996 WL


                                              -11-
374183, at *1). Again, the ALJ’s failure to give any consideration to

Dr. Trinidad’s medical evidence, to evaluate his evidence by applying the relevant

factors to be used in weighing a medical opinion, and to give any specific,

legitimate reason for rejecting his opinion was contrary to the requirements of the

governing regulations.   See §§ 404.1527(d) and 416.927(d).

      D. Dr. Billings . On June 30, 1997, claimant saw Dr. Billings, a

neurosurgeon who performed her first surgical procedure, for evaluation of her

suitability for a pain management program. Claimant asserts that the ALJ seemed

to place more weight on Dr. Billings’ observation that she was able to walk

quickly and briskly without difficulty than on his diagnosis that she had a back

injury. The ALJ did describe Dr. Billings’ report, but he “failed to articulate the

weight, if any, he gave Dr. [Billings’] opinion, and he failed also to explain the

reasons for assigning that weight or for rejecting the opinion altogether.”

Watkins , 350 F.3d at 1301. On remand, the ALJ must explain the weight he

assigns to this medical evidence in accordance with the governing regulations.




                                         -12-
      The judgment of the district court is REVERSED and REMANDED to the

district court with instructions to remand the case to the Commissioner for further

proceedings in accordance with this decision.



                                                    Entered for the Court



                                                    William J. Holloway, Jr.
                                                    Circuit Judge




                                        -13-
