                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 25 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    KAREN S. WISE,

                Plaintiff-Appellant,
                                                          No. 04-7035
    v.                                              (D.C. No. 02-CV-484-P)
                                                          (E.D. Okla.)
    JO ANNE B. BARNHART,
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , and BALDOCK , Circuit Judges, and         BRIMMER , ** District
Judge.


         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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
      Karen Wise appeals from an order of the district court affirming the

Commissioner’s decision denying her application for Social Security benefits.

Ms. Wise filed applications for disability insurance benefits and supplemental

security income payments on September 29, 2000.       1
                                                          She alleged disability based

on anxiety, depression, asthma, and multiple injuries to her body from an

automobile accident. The agency denied her application initially and on

reconsideration.

      On February 7, 2002, Ms. Wise received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that Ms. Wise had the

residual functional capacity (RFC) to perform a significant range of sedentary

work. The ALJ denied Ms. Wise’s application for benefits, concluding that she

was not disabled at step five of the analysis because she could perform a

significant number of jobs in the national economy.        See Williams v. Bowen , 844

F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step process for evaluating

claims for disability benefits). The Appeals Council denied review, making the

ALJ’s decision the Commissioner’s final decision.



1
       Ms. Wise previously filed applications for disability insurance benefits and
social security income payments. The ALJ issued a decision on February 26,
1999 finding Ms. Wise disabled under a closed period from August 29, 1997 to
November 17, 1998, but not thereafter. Ms. Wise alleges an onset date of
August 29, 1997, but due to the finality of the prior ALJ decision, the relevant
time period for these applications begins on February 27, 1999.

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       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.     Winfrey v. Chater , 92 F.3d 1017, 1019 (10th

Cir. 1996). On appeal, Ms. Wise contends that the ALJ erred by failing to

properly consider her treating physicians’ opinions. We affirm in part and reverse

in part.

       A treating source opinion is to be given controlling weight only if it is

“well supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in [the]

record . . . .” 20 C.F.R. § 404.1527(d)(2);     see also Watkins v. Barnhart , 350 F.3d

1297, 1300 (10th Cir. 2003) (outlining framework for ALJ’s controlling weight

determination). In considering Ms. Wise’s treating physicians, the ALJ lumped

together the opinions of Dr. Carpenter and Dr. Houston and rejected them both

stating:

       I find Dr.’s Houston and Carpenter’s medical source statements and
       medical consultant review, respectively, to be deficient and without
       supportive medical documentation. Their pessimistic conclusions
       were not supported by the objective medical evidence. They
       provided no clinical signs in support of their conclusion, because
       none existed. Despite exhaustive diagnostic testing, there is simply
       no support for functional limitations to the extent alleged and found
       by these two physicians. The preponderance of the evidence shows
       that their conclusions are based solely on [claimant’s] subjective
       complaints, which I do not find to be fully credible. As such, I



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       decline to give their medical conclusions controlling weight as they
       are inconsistent with the credible evidence of record.

Aplt. App. at 25-26 (internal citations omitted).

Dr. Carpenter

       Dr. Carpenter has been Ms. Wise’s treating physician since 1978. She

completed two medical source statements relating to Ms. Wise’s physical

impairments. In the first medical source statement completed on December 27,

2000, Dr. Carpenter reported that Ms. Wise was unable to frequently lift and/or

carry any amount of weight and that she was occasionally only able to lift and/or

carry five pounds. Aplt. App. at 504. In addition, Dr. Carpenter reported that in

a typical eight hour work day, Ms. Wise could only stand and/or walk for one

hour; stand and/or walk continuously for fifteen minutes; sit for one hour and sit

continuously for fifteen minutes.     Id. Dr. Carpenter also stated that Ms. Wise is

required to lie down during the normal work day to manage pain or other

symptoms. Id. at 505.

       Dr. Carpenter’s second source statement was essentially the same, with a

few exceptions. Dr. Carpenter reported that Ms. Wise was now able to frequently

lift and/or carry 5 pounds, but she was only able to stand less than one hour a day

and only five minutes continuously.      Id. at 624. Ms. Wise was now able to sit for

two hours and to sit continuously for thirty minutes.    Id. Based on these medical

source statements, Ms. Wise would be unable to perform even the most basic

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sedentary work. The record, however, does not support the limitations found by

Dr. Carpenter.

       Dr. Carpenter’s treatment notes do not indicate that she performed any

objective testing; they focus instead on Ms. Wise’s subjective complaints.        See ,

e.g. , Aplt. App. at 412-413; 566-567. In addition, the diagnostic testing actually

ordered by Dr. Carpenter does not support the limitations in her medical source

statements. See , e.g. , Aplt. App. at 622 (diagnostic imaging of ankle shows no

evidence of hardware failure or acute fracture);      id. at 614 (diagnostic imaging of

left foot shows no joint or osseous abnormalities);     id. at 605-06 (diagnostic

imaging of left knee shows no acute fracture, dislocation or joint effusion).

       Other evidence in the record is also inconsistent with Dr. Carpenter’s

opinion. Ms. Wise was examined at University Health Partners Orthopedic

Surgery Resident Clinic as a follow-up to the injuries she sustained in her

automobile accident. The examination revealed that her humerus and tibia

fractures were healed. Aplt. App. at 396. The progress notes state also that

although Ms. Wise cannot return to her previous manual labor job, “[s]he would

. . . be able to remain sitting at a desk type job such as computer work     or other

sedentary type jobs .” Id. at 396-97 (emphasis added).

       Ms. Wise was also seen by Dr. Howard for a consultative examination.

Dr. Howard performed a range of motion evaluation.          Id. at 575-78. Dr. Howard


                                             -5-
determined that Ms. Wise had full range of motion in her upper extremities

(shoulders, elbows, wrists, and hands) and full range of motion in her lower

extremities (hips, knees, ankles and feet), with the exception that she could not

flex her knee more than about 100 degrees.         Id. at 573, 575-578. Dr. Howard also

noted that Ms. Wise walked with “a good stable solid gait” and that “she had a

very slight limp requiring no assistive device.”      Id. at 574.

       Although Ms. Wise contends that “[t]he file as a whole,” supports

Dr. Carpenter’s opinion, she does not point to any specific record evidence that

would justify this assertion. Aplt. Br. at 11. In fact, Ms. Wise barely mentions

Dr. Carpenter in the argument section of her brief.       See id. at 14-18.

Dr. Carpenter’s medical source statements indicate that Ms. Wise is unable to

perform even sedentary work. The objective tests ordered by Dr. Carpenter,

however, indicate that Ms. Wise’s injuries from her automobile accident have

healed. In addition, Dr. Howard’s range of motion testing demonstrates that

Ms. Wise has a full range of motion in her upper and lower extremities, with the

exception of a slightly decreased range of motion in her left knee. And, the

medical records from the doctors who examined Ms. Wise for the follow-up to her

accident state that her injuries are healed and that she can perform sedentary

work. Based on our review of the record, we conclude that there is substantial




                                             -6-
evidence to support the ALJ’s conclusion that Dr. Carpenter’s opinion was not

entitled to controlling weight and that it should be rejected.

      Dr. Houston

      Dr. Houston treated Ms. Wise from August 30, 2000 through January 2001.

The record shows that Dr. Houston diagnosed Ms. Wise with bipolar disorder and

that she prescribed three medications for Ms. Wise, including Prozac.       See Aplt.

App. at 507-508, 511. There are also three mental status examination forms from

August 30, September 6 and September 12,         id. at 515-517, and treatment notes

from September 13 and October 11,      id at 511-512. Dr. Houston completed a

mental medical source statement on January 10, 2001 in which she reported that

Ms. Wise is markedly limited in her ability to: remember locations and work-like

procedures; understand and remember detailed instructions; carry out detailed

instructions; maintain attention and concentration for extended periods; sustain an

ordinary routine without special supervision; work in coordination with or

proximity to others without being distracted by them; complete a normal work day

and workweek without interruptions from psychologically based symptoms and

perform at a consistent pace without an unreasonable number and length of rest

periods; accept instructions and respond appropriately to supervisors; respond

appropriately to changes in the work setting; and set realistic goals or make plans

independently of others.   Id. at 518-19. Dr. Houston also filled out a mental


                                           -7-
status form on January 24, in which she gave a more detailed report of her

observations of Ms. Wise. For example, she noted that:

      Client has difficulty assimilating information. I must repeat things at
      times, more than once, for clarification to client . . . . [s]he has
      difficulty thinking and making decisions. She can reason thoughts
      out if given appropriate time frame; she does respond after her
      complete understanding . . . . Karen has difficulty remembering, but
      writes things down. She can carry out simple instructions, if stated
      in step by step terms. Complete instructions appear to be a problem
      due to client’s ability to concentrate and remember.

Id. at 509. Dr. Houston concluded that Ms. Wise’s prognosis was guarded and

that there was “little hope of improvement.”     Id.

      Since Dr. Carpenter mainly treated Ms. Wise for her physical conditions

and Dr. Houston treated Ms. Wise solely for her mental conditions, the ALJ’s

combined treatment of these opinions has made our review more difficult.

As discussed above, the ALJ’s reasons for rejecting Dr. Carpenter’s opinion are

supported by the record. In contrast, however, applying these same reasons to

rejecting Dr. Houston’s opinion about Ms. Wise’s medical condition does not

make sense. The ALJ talks about a lack of “objective medical evidence” and

“diagnostic testing.” Aplt. App. at 25. But a psychological opinion does not need

to be based on “tests;” those findings can be based on “observed signs and

symptoms.” Robinson v. Barnhart , 366 F.3d 1078, 1083 (10th Cir. 2004) (citing

20 C.F.R. subpart P, App. 1 § 12.00(B)). Dr. Houston’s observations of Ms. Wise

do constitute specific medical findings.

                                           -8-
      The ALJ also concluded that Dr. Houston’s opinion was “inconsistent with

the credible evidence of record,” Aplt. App. at 26, but he fails to explain what

those inconsistencies are. In the case of Dr. Carpenter, the inconsistencies were

obvious, but with Dr. Houston, the record is not as clear. Ms. Wise was examined

by Dr. Mynatt, a consulting physician. Dr. Mynatt diagnosed her with major

depressive disorder and generalized anxiety. He noted that she has “symptoms

affecting sleep, appetite, memory, concentration and energy.”         Id. at 538. He

concluded that “[e]nvironment is a problem in symptom otology as she has

difficulties interacting with others, and has difficulty in employment, financial

and other areas.”   Id. at 539. He rated her level of functioning at 52, which is

indicative of moderate symptoms or moderate difficulty in social, occupational or

school functioning, see American Psychiatric Assoc., Diagnostic and Statistical

Manual of Mental Disorders 34 (4th ed. 2000). Dr. Mynatt concluded that

Ms. Wise’s “condition is not expected to improve significantly within the next 12

months.” Id. Without any guidance from the ALJ, this opinion appears in large

part to be consistent with Dr. Houston’s assessment.

      Ms. Wise’s records were also reviewed by two agency experts. It does not

appear that either of these physicians actually evaluated Ms. Wise in person. The

first doctor concluded that Ms. Wise was not markedly limited in any areas and

was only moderately limited in three areas.         Id. at 534-35. The second doctor


                                              -9-
concluded that Ms. Wise was markedly limited in her ability to understand and

remember detailed instructions; carry out detailed instructions and interact

appropriately with the public.   Id. at 595-96. The first doctor’s opinion is

inconsistent with most of the evidence in the record, including the opinion of the

second agency expert. The second expert’s conclusion that Ms. Wise is markedly

limited in her ability to understand, remember and carry out detailed instructions

is consistent with Dr. Houston’s assessment, although the opinions do differ in

other respects. The agency expert’s conclusions are reported in a mental residual

functional capacity assessment, which is a standard form with boxes checked to

indicate conclusions. “Such evaluation forms, standing alone, unaccompanied by

thorough written reports or persuasive testimony, are not substantial evidence.”

Williams , 844 F.3d at 757 (quotation omitted). In addition, the ALJ is generally

required to give more weight to the opinion of a treating physician than to an

agency physician who has never seen the claimant.     Id. (“[T]he opinions of

physicians who have seen claimant over a period of time for purposes of

treatment are given more weight over . . . those who only review the medical

records and never examine the claimant.”).

       Finally, the ALJ determined in his RFC that Ms. Wise could perform

sedentary work with the additional limitation of performing simple, routine tasks;

however, Dr. Houston’s mental RFC assessment included other more restrictive


                                          -10-
limitations that could impact Ms. Wise’s ability to hold a job.   For example, Dr.

Houston determined that Ms. Wise was markedly limited in her ability to sustain

an ordinary routine without special supervision; to complete a normal work day

and workweek without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest

periods.

       Because the ALJ failed to explain his reasons for rejecting Dr. Houston’s

additional restrictions, failed to distinguish the types of medical evidence

presented by Dr. Houston from that of Dr. Carpenter, and failed to explain or

identify what the inconsistencies were between Dr. Houston’s opinion and the

other substantial evidence in the record, the ALJ’s reasons for rejecting Dr.

Houston’s opinion are not “sufficiently specific” to enable this court to

meaningfully review his findings.     Langley v. Barnhart , 373 F.3d 1116, 1123

(10th Cir. 2004). We conclude that the ALJ’s rejection of Dr. Houston’s opinion

is not supported by substantial evidence and we must remand for further findings.




                                            -11-
      Accordingly, we AFFIRM the ALJ’s determination with respect to

Dr. Carpenter, but we REVERSE and REMAND the ALJ’s determination with

respect to Dr. Houston.



                                               Entered for the Court



                                               Clarence A. Brimmer
                                               District Judge




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