                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 27, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    VIRGINIA HUNTER-HENDRIX,

                Plaintiff!Appellant,

    v.                                                  No. 09-6056
                                                 (D.C. No. 5:07-CV-01416-C)
    MICHAEL J. ASTRUE, Commissioner                     (W.D. Okla.)
    of the Social Security Administration,

                Defendant!Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.



         Claimant Virginia Hunter-Hendrix appeals from the district court’s order

affirming the decision of the Social Security Commissioner to deny her

application for disability-insurance benefits. Ms. Hunter-Hendrix argues that the

administrative law judge (“ALJ”) failed to follow prescribed standards in

evaluating her physicians’ opinions and in determining whether she could make a


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
successful adjustment to other work that exists in significant numbers in the

national economy. We exercise jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g) and conclude that the ALJ’s decision does not apply the

correct legal standards to the medical evidence. Accordingly, we REVERSE and

REMAND for further proceedings.

                               I. BACKGROUND

      A.     Procedural History

      Ms. Hunter-Hendrix’s social security case has a lengthy history. Alleging

disability due to back problems, she initially applied for benefits on August 8,

2001, when she was fifty-one years old. An Administrative Law Judge (ALJ)

issued an unfavorable decision on April 22, 2004. On administrative review,

however, the Appeals Council vacated the ALJ’s decision. The Appeals Council

remanded the matter, instructing the ALJ to further consider Ms. Hunter-

Hendrix’s complaints. In particular, the ALJ was to supplement the medical and

vocational evidence and evaluate the additional evidence in accordance with the

agency’s regulations.

      The ALJ obtained additional evidence, held a hearing twenty-one months

after the remand, and conducted a supplemental hearing eight months later. He

issued his second unfavorable decision on June 29, 2007, finding Ms. Hunter-

Hendrix not disabled at step five of the sequential evaluation process. See Wall v.

Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the agency’s five-step

                                        -2-
framework for determining disability). The Appeals Council denied Ms. Hunter-

Hendrix’s request for review, and the district court affirmed the Commissioner’s

decision. In the eight years since she applied for benefits, Ms. Hunter-Hendrix’s

insured status expired.

      B.     Medical History

      Ms. Hunter-Hendrix first suffered a work-related back injury in the late

1980s and underwent back surgery in March 1991. She re-injured her back in

July 2000. In spite of conservative treatment during the fall of that year, she

continued to have back problems and stopped working at her production-assembly

job in November. Throughout 2000, her physicians limited her lifting, pushing,

bending, and stooping movements. Dr. Evans, an examining orthopedist, placed

her lifting limit at ten pounds in September 2000. The most optimistic opinions

were expressed by Dr. Hess, a treating physician (through his physician’s

assistant), and Dr. Wright, an orthopedist. They opined that Ms. Hunter-Hendrix

could lift up to twenty pounds.

      In January of 2001, Dr. Wright and Dr. Metcalf, an examining physician,

recommended back decompression surgery. Dr. Wright performed a revision

lumbar laminectomy on January 22, 2001. (An examining physician, Dr. Saidi,

described the procedure as one to remove scar tissue.) After the surgery, treating,

examining, and reviewing physicians again evaluated Ms. Hunter-Hendrix’s

restricted ability to lift, bend, and stoop. From March 2001 to October 2003, they

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reached and expressed somewhat divergent opinions. There is then a gap in the

medical record.

      After the remand order, however, the ALJ requested two additional

disability examinations. Dr. Saidi examined Ms. Hunter-Hendrix on April 10,

2006 and noted her history of degenerative disk disease, herniated disk, spinal

stenosis, and chronic obstructive pulmonary disease. He found she could stand

for four hours and sit for four hours as long as she changed position every thirty

minutes. She could lift ten pounds frequently, carry five pounds frequently, and

lift eleven to fifty pounds occasionally. In addition, Ms. Hunter-Hendrix’s

condition required a moderate restriction of activities involving unprotected

heights, moving machinery, marked changes in temperature and humidity,

exposure to dust, fumes, and gases, driving, and vibrations.

      On February 12, 2007, Dr. Chaudry also conducted an agency-requested

examination. According to his findings, Ms. Hunter-Hendrix could sit for six

hours during a work day, thirty to forty minutes at a time, and stand for about six

hours, twenty minutes at a time. She was restricted to lifting twenty pounds

occasionally. Dr. Chaudry found no environmental restrictions.

      C.     Vocational History

      Ms. Hunter-Hendrix, who has an eighth-grade education, performed the

past relevant work of “assembly, production,” and “hand assembling.” II Aplt.

App. at 417. Most recently, she repaired computer boards, using soldering guns

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and lifting tubs that weighed fifteen to thirty pounds. In that job, she could sit or

stand as she worked, frequently lifted twenty-five pounds, and occasionally lifted

up to fifty pounds.

       Three different vocational experts have given their opinions on the

classification of Ms. Hunter-Hendrix’s past work. They generally believed that

Ms. Hunter-Hendrix had performed light to medium, semiskilled work.

       D.    Remand Proceedings

       On remand, the ALJ was instructed to supplement the medical and

vocational evidence and to take the additional evidence into consideration under

the applicable agency regulations. He added Dr. Saidi’s and Dr. Chaudry’s

opinions to the medical record. The ALJ was then tasked with determining the

weight to be accorded the opinions of the many treating, examining, and

non-examining physicians. And with regard to the vocational evidence, he was to

determine if Ms. Hunter-Hendrix had any transferable skills and then identify any

appropriate jobs in the national economy.

       At the remand hearing, the ALJ took telephone testimony from a reviewing

medical expert, Dr. McCaron. The gist of Dr. McCaron’s testimony was that the

medical records didn’t explain the source of Ms. Hunter-Hendrix’s pain.

Dr. McCaron questioned Dr. Wright’s diagnosis of spinal stenosis, and stated that

a herniated disc “doesn’t necessarily mean there is or isn’t a problem.” Id. at

410.

                                          -5-
      Eight months later, the ALJ held a supplemental hearing, at which another

reviewing medical expert, Dr. Raulston, testified. Dr. Raulston expressed his

view that Ms. Hunter-Hendrix was “capable of light duty, [lifting] 20 pounds

occasionally and frequently, standing/walking a total of six out of eight, with the

opportunity to change positions every 30 to 60 minutes as needed.” Id. at 458

(parenthetical omitted). She couldn’t crawl, but could occasionally climb, crouch,

balance, kneel, and stoop. She had no environmental limitations except for

performing hazardous duties. Dr. Raulston felt the inconsistencies between the

examining physicians Dr. Saidi and Dr. Chaudry were “just a difference of

opinion.” Id. at 460. He stated that nothing in the record “show[s] she actually

got worse or better” between the two examinations. Id.

      Two new vocational experts testified after remand. At the supplemental

hearing, a vocational expert proposed three jobs in response to the ALJ’s

hypothetical questions about light, semiskilled work allowing for a sit/stand

option: bench assembler, barrel solderer, and electric motor assembler.

      The ALJ then issued his decision denying benefits. On the issue of

Ms. Hunter-Hendrix’s medical condition, he essentially adopted the testimony of

the second testifying expert, Dr. Raulston. He found that Ms. Hunter-Hendrix

suffered from the severe impairments of spinal stenosis, chronic obstructive

pulmonary disease, recurrent herniated disc, and degenerative disc disease. She

was of “advanced age or . . . approaching advanced age” and was unable to

                                         -6-
perform her past relevant work. Id. at 20. Nevertheless, she had the residual

functional capacity to “stand or sit and stand for 4 hours out of an 8-hour

workday,” but “must change positions every 30 to 60 minutes.” Id. at 20. She

“retain[ed] the residual functional capacity to perform a wide range of light work

activity because she could lift and carry 20 pounds occasionally and 10 pounds on

a frequent basis.” Id. Apparently relying on the testimony of Ms. Sullivan, the

third vocational expert, the ALJ decided that despite her limitations Ms. Hunter-

Hendrix could perform the three jobs existing in significant numbers in the

national economy, as suggested by the final vocational expert. He therefore

found her not disabled and not entitled to disability insurance benefits.

      The appeals council denied review and Ms. Hunter-Hendrix sought review

in the district court. The district court found no error in the ALJ’s treatment of

the medical evidence. 1 Concerning vocational issues, the court determined that

ALJ properly found that Ms. Hunter-Hendrix had acquired transferable skills in

her previous jobs. The court, however, concluded that two of the jobs supporting

the alternative-work finding--bench assembler and barrel solderer--were

inappropriate or unsupported by the evidence. Nevertheless, the court determined

that the remaining position of electric-motor assembler was sufficient to support

the ALJ’s decision, without explicitly considering whether this single job existed


1
      On judicial review, the district court adopted the magistrate judge’s report
and recommendation.

                                         -7-
in significant numbers in the national economy. The district court therefore

affirmed the Commissioner’s decision.

                                 II. DISCUSSION

      “We review the Commissioner’s decision to determine whether his factual

findings are supported by substantial evidence in the record viewed as a whole

and whether he applied the correct legal standards.” Frantz v. Astrue, 509 F.3d

1299, 1300 (10th Cir. 2007) (alteration and quotation omitted). “We consider

whether the ALJ followed the specific rules of law that must be followed in

weighing particular types of evidence in disability cases, but we will not reweigh

the evidence or substitute our judgment for the Commissioner’s.” Cowan v.

Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted).

      An ALJ’s decision is “evaluated based solely on the reasons stated in the

decision,” without engaging in a “post hoc effort to salvage” it. Robinson v.

Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). This court does not “overstep

[its] institutional role and usurp essential functions committed in the first instance

to the administrative process.” Id. at 1084-85 (quotation omitted).

      Under the Commissioner’s regulations, an ALJ is required to evaluate every

medical opinion in the record, giving varying weight to each opinion “according

to the relationship between the disability claimant and the medical professional.”

Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). “An ALJ must also




                                         -8-
consider a series of specific factors in determining what weight to give any

medical opinion.” Id. 2

      A “treating physician’s opinion is given particular weight because of his

unique perspective to the medical evidence that cannot be obtained from the

objective medical findings alone or from reports of individual examinations such

as consultative examinations. . . .” Id. (quotation omitted). If an ALJ rejects a

treating physician’s opinion and relies instead on the opinion of another medical

source, he has a well-defined course to follow. Id. First, he must “articulate

specific, legitimate reasons” for the rejection. Id. (quotation omitted). Second,

he must “explain the weight” accorded the opinion of an examining or

nonexamining physician and “give good reasons in his written decision for the

weight he gave to the treating physician’s opinion.” Id.



2
      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
      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.

Goatcher v. United States Dep’t. of Health & Human Servs., 52 F.3d 288, 290
(10th Cir. 1995) (citing 20 C.F.R. § 404.1527(d)(2)-(6)).


                                        -9-
      The extended pendency of this case resulted in a copious medical record.

In spite of the daunting task facing the ALJ, however, the above standards remain

applicable. Our review indicates that the ALJ’s written decision does not mention

the opinions of examining-physicians Evans and Metcalf or testifying-physician

McCaron. And though the decision summarizes the opinion of treating-physician

Hess (as signed by his physician-assistant), it does not articulate reasons for

discounting the October 6, 2000, statement that Ms. Hunter-Hendrix could lift

only fifteen pounds, which would preclude her from performing light work. In

addition, there are inconsistencies between the opinions of examining physicians

Saidi and Chaudry, concerning Ms. Hunter-Hendrix’s ability to lift or carry, the

length of time she can sit and stand during a work day, her need to change

positions, and the imposition of environmental restrictions. But the ALJ’s

decision does not discuss or explain the weight he assigned to each of these

opinions. He also does not explain why he relied almost completely on the

opinion of reviewing-and-testifying physician Raulston.

      We acknowledge that the Commissioner’s appellate brief suggests reasons

for the ALJ’s determination. Our role on judicial review, however, does not

include speculation on how the ALJ weighed the medical-opinion evidence. We

do not provide a post hoc rationale for his conclusion. See Robinson, 366 F.3d at

1084. And the magistrate judge was incorrect in stating, without citation, that

“the mere fact that the ALJ did not explicitly consider what weight to give to each

                                         -10-
of the physicians’ opinions is not error” because “[m]uch of the evidence was in

agreement. . . .” I Aplt. App. at 21 (emphasis added). In an instance in which

“none of the record medical evidence conflict[ed] with the ALJ’s conclusion that

claimant can perform light work,” we decided there was a lesser need for the ALJ

“to reject or weigh evidence unfavorably in order to determine a claimant’s RFC.”

Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (emphasis added). In

light of the discrepancies in medical opinion, however, that principle does not

apply to Ms. Hunter-Hendrix’s case. The ALJ did not follow the correct legal

standards in considering the medical-opinion evidence, so we must reverse and

remand on this issue.

      Ms. Hunter-Hendrix also makes two arguments concerning the ALJ’s

treatment of the vocational record. Our direction on the evaluation of the medical

evidence means that these issues may not arise on remand. Accordingly, we

decline to address them.




                                        -11-
      It is unfortunate that the decision-making process on Ms. Hunter-Hendrix’s

claim has been so prolonged. Nevertheless, we REVERSE the decision of the

district court and REMAND the case with instructions to remand it to the

Commissioner for further proceedings in accordance with this decision.



                                     Entered for the Court



                                     Jerome A. Holmes
                                     Circuit Judge




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