                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      June 4, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    DONALD W. HULSEY,

                Plaintiff-Appellant,
                                                        No. 07-5150
    v.                                          (D.C. No. 4:06-cv-00194-PJC)
                                                        (N.D. Okla.)
    MICHAEL J. ASTRUE, *
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT **


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         Donald W. Hulsey appeals from a judgment of the district court affirming

the Commissioner’s denial of his application for Social Security disability

insurance benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.


*
     Pursuant to Fed. R. App. P. 43(c)(2), Michael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
§ 405(g), we reverse and remand for further proceedings before the

Commissioner.

                                     B ACKGROUND

      Mr. Hulsey has a high school education and work experience as a mixer

operator, sales clerk, and, most recently, an animal control officer. In January

2000 he sustained a work injury to his lower back while lifting a dead 100-pound

Rottweiler into a truck and sought disability insurance benefits. After the

Commissioner denied his application initially and upon reconsideration,

Mr. Hulsey requested a hearing before an administrative law judge (ALJ). The

ALJ denied benefits, but the Appeals Council reversed and remanded. The ALJ

received additional medical evidence, held another hearing, and issued a second

decision, which is operative here.

      At the time of the second decision, Mr. Hulsey was fifty-two years old.

The ALJ found that Mr. Hulsey’s degenerative disc disease, hypertension, and

history of hemorrhoids, status post-hemorrhoidectomy, were severe impairments

but did not meet or medically equal any of the impairments listed in 20 C.F.R.,

Part 404, Subpart P, Appendix 1. The ALJ also found that Mr. Hulsey’s

allegations regarding his limitations were not totally credible.

      At step four of the five-step sequential evaluation process set forth in

20 C.F.R. § 404.1520(a)(4), the ALJ determined that Mr. Hulsey retained the

residual functional capacity (RFC) to perform light work, specifically, “to lift

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and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk

six to eight hours during an eight-hour workday; and sit six to eight hours during

an eight-hour workday.” Aplt. App. at 32, ¶ 6. Based on this RFC, the ALJ

found that Mr. Hulsey “is able to perform his past relevant work as an animal

treatment investigator (animal control officer),” and that although he would be

unable to return to his sales clerk job as he had performed it, “he would be able to

perform most retail sales jobs, as [they] are generally performed in the national

economy.” Id. at 33, ¶ 7. Accordingly, the ALJ concluded that Mr. Hulsey was

not disabled at step four.

      Alternately, the ALJ determined that if Mr. Hulsey could not return to his

past relevant work, the Medical-Vocational Guidelines would direct a finding that

he was not disabled at step five based on his RFC and vocational factors. The

Appeals Council affirmed, making the ALJ’s decision the Commissioner’s final

decision. In the district court, the parties consented to the jurisdiction of a

magistrate judge, who affirmed the ALJ’s decision. This appeal followed.

                                     D ISCUSSION

      Mr. Hulsey raises three issues on appeal: (1) the ALJ did not properly

evaluate an opinion of one of his treating physicians, Dr. Kenneth Darvin, and

should have recontacted him; (2) the RFC finding was inaccurate; and (3) the

credibility finding was flawed. Our review is limited to determining whether

substantial evidence supports the Commissioner’s factual findings and whether he

                                          -3-
applied the correct legal standards. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.

2007). Applying this standard of review, we agree with Mr. Hulsey that the ALJ

did not properly evaluate Dr. Darvin’s opinion and, as a result, do not reach the

remainder of his issues. But before explaining our reasons, we pause to note that

in the appendix Mr. Hulsey filed with this court, counsel altered the original

pagination of the agency transcript, apparently to accommodate the placement of

district-court pleadings at the beginning of the appendix. Altering the pagination

unnecessarily complicates our review of the agency transcript and the various

references to it—the Commissioner has cited to the original pagination, as do the

index of exhibits prepared by the agency and the district court’s decision. In the

future, counsel should refrain from altering the pagination of the agency

transcript.

      Turning now to the merits of this appeal, our resolution turns on the first

issue regarding Dr. Darvin. Therefore, we provide only a brief summary of the

medical evidence from other doctors who first treated Mr. Hulsey’s back problem.

Beginning in March 2000 and ending in November 2000, Mr. Hulsey saw several

physicians, including a neurosurgeon, Dr. Malone, whose examinations generally

revealed full motor strength in the lower extremities, tenderness on the top of the

left sacroiliac (SI) joint, and, with one exception at Dr. Malone’s initial

examination, negative straight-leg-raise tests. An MRI showed no disc herniation

but some degenerative disc disease in Mr. Hulsey’s lumbar spine. On May 5,

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2000, Dr. Malone released Mr. Hulsey to light work, limited to lifting no more

than 15 pounds, and with no bending or twisting. A subsequent bone scan,

lumbar myelogram, and CT scan showed minor increased activity at the L2-3

level and a Schmorl’s node, but no nerve root impingement or significant

sacroiliitis or facet disease.

       “[A]t a loss to explain [Mr. Hulsey’s] symptoms,” Dr. Malone ordered a

lumbar discogram with Dr. C. Scott Anthony. Aplt. App. at 250. The result of

that test was “completely normal” except for some moderate pain at L4-5

suspicious as a false positive. Id. at 232. Dr. Anthony’s examination results were

unremarkable. To rule out the left SI joint as a cause of pain, Dr. Anthony

proposed giving Mr. Hulsey an injection in that joint. After receiving two second

opinions, both of which were generally consistent with the findings of

Drs. Malone and Anthony, Mr. Hulsey received an SI injection in September 2000

that provided some pain relief. After a second injection in November 2000, there

is no indication that Mr. Hulsey visited these doctors again.

       The record further reflects that Mr. Hulsey began seeing Dr. Darvin in

August 2000 and continued in his care through June 21, 2004, often at planned

three-month intervals. Initially, it appears Dr. Darvin treated Mr. Hulsey’s

hypertension and hemorrhoids rather than his back problem, as some of

Dr. Darvin’s early exam notes refer to the fact that Mr. Hulsey was seeing other

doctors for his back pain. But in November 2001, Dr. Darvin began recording his

                                         -5-
own impressions of Mr. Hulsey’s back problem and prescribing Ultram, a pain

medication. Dr. Darvin regularly stated that Mr. Hulsey had mild or moderate

tenderness in his left SI joint or lumbar spine, decreased range of motion with

flexion and extension, and at times an antalgic gait. He also frequently noted that

Mr. Hulsey’s pain was controlled with Ultram.

      At the second hearing before the ALJ on August 25, 2004, a vocational

expert (VE) testified that a person with an RFC for a wide range of light work

could perform Mr. Hulsey’s past job as an animal treatment investigator as well

as a number of sales-clerk jobs that did not require the heavy lifting of

Mr. Hulsey’s past work as a sales clerk, as he had performed it. Mr. Hulsey’s

attorney then asked the VE whether a person could perform the work the VE had

identified if the person could “only sit or let’s say stand for 15 minutes at a time

for three hours out of an eight-hour day and can only lift 10 pounds occasionally

and frequently[,] and never climb, balance, stoop, kneel, crouch or crawl[,] and

can only occasionally reach and handle.” Id. at 447. The VE testified that such a

person could not do the work that he had identified. When asked by the ALJ

whether the hypothetical RFC was based on an RFC in the record, counsel replied

that it was not.

      After the hearing, Mr. Hulsey submitted a medical source statement (MSS)

from Dr. Darvin dated September 7, 2004. The MSS reflects the limitations in the

hypothetical that counsel posed to the VE at the hearing plus several other

                                          -6-
limitations: frequently lift and/or carry 10 pounds; occasionally lift and/or carry

10 pounds; stand and/or walk 15 minutes continuously for a total of three hours in

an eight-hour workday; sit continuously for one hour and a total of five hours in

an eight-hour workday; a need to lie down during the workday to manage pain or

other symptoms; difficulty pushing a loaded grocery cart; never climb, balance,

stoop, kneel, crouch or crawl; occasionally reach and handle; and no exposure to

extreme heat due to an episode of heat exhaustion. The MSS bears the agency

designation “Exhibit 24F.” Id. at 401. It is stamped as received by the agency on

October 20, 2004, and the ALJ’s decision is dated November 19, 2004.

      Mr. Hulsey argues that the ALJ failed to give proper weight to the MSS and

failed to explain what weight he gave to it. We agree that there is error with

regard to the MSS, but for a slightly different reason than Mr. Hulsey advances:

we cannot tell whether the MSS was properly submitted or whether the ALJ was

aware of or considered it. In his decision, the ALJ provided a comprehensive

review of the relevant medical evidence from all the medical sources, including

Dr. Darvin, and the ALJ was careful to refer to the evidence by exhibit number.

In the discussions of Dr. Darvin’s records, the ALJ referred to exhibits 11F, 14F,

22F, and 23F, but he never referred to Exhibit 24F or discussed the MSS.

      The lack of any reference to or discussion of the MSS is problematic. An

ALJ has an obligation to determine whether a treating physician’s opinion is

entitled to controlling weight or, if not, whether it is entitled to some lesser

                                           -7-
weight or none at all. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

The ALJ’s decision “must be sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s medical opinion

and the reasons for that weight.” Id. (quotation omitted). The goal is to facilitate

meaningful review. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004).

      Given the ALJ’s careful identification of all the other evidence by exhibit

number and the fact that the MSS was submitted after the hearing, we are hesitant

to assume that it was properly submitted and the ALJ considered it. Led by the

parties, the district court apparently proceeded on such an assumption, reasoning

that by not incorporating the arguably work-precluding limitations in the MSS,

the ALJ implicitly declined to give the MSS controlling weight. The district

court then reasoned that the ALJ rejected the opinions expressed in the MSS and

that this rejection was supported by (1) the ALJ’s observation that Dr. Darvin’s

other medical records were not always consistent and were unaccompanied by

“any specific objective clinical findings, such as degree of limitation of motion,

and there is no report of positive straight leg raising or of any other neurologic

deficits,” Aplt. App. at 28; and (2) the ALJ’s discussion of evidence from the

doctors who treated Mr. Hulsey’s back injury in 2000 and from those who

examined him or reviewed the file at the Commissioner’s request and provided

their opinions as to Mr. Hulsey’s limitations, all of which suggest that Mr. Hulsey

is not as limited as the MSS reflects.

                                          -8-
      In reaching this conclusion, the district court recognized that the ALJ

“could have been more meticulous” in following this circuit’s framework for

evaluating the opinions of treating physicians, id. at 483 (quotation omitted), but

excused this shortcoming based on Causey v. Barnhart, 109 F. App’x 375, 378

(10th Cir. 2004) (unpublished). While an unpublished decision of this circuit is

not precedential, it may be cited for its persuasive value consistent with Fed. R.

App. P. 32.1 and 10th Cir. R. 32.1. But Causey has little persuasive value

because it is materially distinguishable from this case. In Causey, it was clear

that the ALJ had at least considered restrictions that a treating physician had

proposed; indeed, the ALJ had adopted all but one of those restrictions, regarding

the claimant’s need to lie down. 109 F. App’x at 378. We deemed the ALJ’s

failure to include that restriction in his RFC to be an implicit finding that the

treating physician’s opinion as to that restriction was not entitled to controlling

weight. Id. We also observed that the ALJ adequately considered the factors

relevant to the analysis of treating-physician opinions as part of determining that

the record did not support the claimed restriction. Id. Thus, we concluded, the

ALJ provided “legally sufficient and factually supported reasons for rejecting this

one aspect of [the treating physician’s] opinion.” Id.

      In contrast to Causey, here the ALJ made no reference to Dr. Darvin’s

MSS. Nor did he adopt any of its limitations in his RFC. While on at least one

occasion we have credited an ALJ’s broad statement that he reviewed all of the

                                          -9-
medical evidence, see Hamilton v. Sec’y of Health & Human Servs., 961 F.2d

1495, 1498-99 (10th Cir. 1992), we decline to do so under the circumstances of

this case, where the MSS was submitted after the hearing and there is absolutely

no reference to it in a decision that otherwise provides a comprehensive

discussion of all the other relevant medical evidence with specific reference to

exhibit numbers. The district court’s attempt to remedy the ALJ’s failure to

discuss what weight he gave to the MSS based on his findings regarding

Dr. Darvin’s treatment records and the medical records of the other doctors

overstepped the institutional boundary between the court and the agency and

resulted in the resolution of a factual inquiry committed to the Commissioner in

the first instance, which was error. See Allen v. Barnhart, 357 F.3d 1140, 1145

(10th Cir. 2004). Thus, we must remand this matter to the ALJ to make the

required findings regarding the MSS, leaving it to the ALJ to determine whether it

was properly submitted and, if so, whether the MSS requires recontacting

Dr. Darvin under applicable regulations, social security rulings, and case law, as

Mr. Hulsey urges. Because the ALJ’s consideration of the MSS may affect his

RFC and credibility findings, we do not reach Mr. Hulsey’s second and third

issues.




                                        -10-
                                  C ONCLUSION

      The judgment of the district court is REVERSED and the case is

REMANDED with instructions to remand to the Commissioner for further

proceedings consistent with the foregoing discussion.


                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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