                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                            July 13, 2006
                               FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                            Clerk of Court

    JERRY A . G A RC IA ,

                Plaintiff-Appellant,

      v.                                                     No. 05-2322
                                                     (D.C. No. CIV-04-1100-LCS)
    JO A NN E B. BA RN HA RT,                                 (D . N.M .)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.



                               OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.




           Plaintiff Jerry A. Garcia appeals from a district court order affirming the

Commissioner’s denial of social security disability benefits. W e review the

Commissioner’s decision to ensure that it is supported by substantial evidence and

adheres to applicable legal standards. Chambers v. Barnhart, 389 F.3d 1139,


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1142 (10th Cir. 2004). As explained below, we reverse and remand for further

agency proceedings.

      M r. Garcia’s primary physical complaint is back pain with associated

limitations caused by herniated lumbar/sacral discs. In August 1993, he had a

hem ilam inotomy at the L4-5 level and a hemilaminectomy at the L5-S1 level. H e

returned to work and re-injured his back in December 1993, and since that time he

has not engaged in substantial gainful activity, though he has assisted in minor

ways with a child care business his wife runs in their home. On several occasions

in early 2000, he saw Dr. Frank M aldonado, who ordered an M RI and new x-rays

that showed: “disc herniation at L4-5 and L5-S1” with “marked narrowing at the

L5-S1 interspace [and] encroachment of the neural foramina . . . partly from the

disc and partly from bone.” A pp. II at 181. Dr. M aldonado recommended a “tw o

level lumbar diskectomy, L4-5 and L5-S1 with interbody fusion,” but he also

acknowledged that “there were no guarantees, particularly with a re-operated

back.” Id. He noted that in the meantime M r. G arcia remained totally disabled.

Id. Eight months later, M r. G arcia applied for benefits.

      The Commissioner sent M r. Garcia to Dr. Debra Schenck for a consultative

examination. Dr. Schenck concluded that M r. Garcia’s abilities to sit, stand and

walk were unlimited, that he could lift up to ten pounds frequently and twenty

occasionally, and, consequently, that he was capable of performing a full range of

light w ork. Id. at 173-74, 179. M r. Garcia returned to Dr. M aldonado to obtain a

                                          -2-
more specific assessment of the functional limitations reflected in the broad

conclusion he had made regarding disability in his prior report. Dr. M aldonado

found that M r. Garcia could not sit or stand/walk for more than one to two hours

(each) in an eight hour day and could not lift more than ten pounds occasionally.

Id. at 213-14. He also noted limitations on pushing/pulling, as well as

environmental restrictions (heights, vibrations, moving machinery) due to balance

and agility issues. Id. at 215. The reports of D r. M aldonado and Dr. Schenck are

the primary medical assessments in the record.

      This case has been heard by two administrative law judges. The first ALJ

found M r. Garcia capable of performing light work and, given his age and

(limited) educational level, concluded that he was not disabled under the M edical

Vocational Guidelines, 20 C.F.R., pt. 404, subpt. P, app. 2, Rule 202.18. See

App. II at 15-16. The district court reversed that decision, because the ALJ had

not properly addressed Dr. M aldonado’s opinions and had failed to mention those

of a Dr. Hood, whom M r. Garcia had seen in 1994 shortly after re-injuring his

back. On remand, the second ALJ found M r. Garcia capable of only a limited

range of sedentary work, but concluded he w as not disabled based on expert

vocational testimony identifying three jobs w ithin the limitations specified. This

second decision is the subject of our review here.

      M r. Garcia raises two broad issues: (1) the ALJ’s handling of the opinions

of Dr. M aldonado and Dr. Hood (who again was not mentioned) on remand w as

                                         -3-
still inadequate and led to undue weight being given the contrary opinion of

agency consultant Dr. Schenck; and (2) the ALJ failed to obtain an explanation

from the vocational expert (VE) regarding a discrepancy between her testimony

and the job descriptions in the Dictionary of Occupational Titles (DOT), as

required by Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999) and Social

Security Ruling (SSR) 00-4p, 2000 W L 1898704. W e hold that the ALJ’s error in

the first respect, particularly with respect to Dr. M aldonado, requires reversal and

remand for proper consideration of the medical opinion evidence. In light of that

holding, we need not decide if the second issue requires reversal, although we do

explain why, if a similar VE-DOT discrepancy arises on remand, it should be

addressed as prescribed in the authorities noted.

                        M E DIC AL OPINION EVIDENCE

      Dr. M aldonado recognized significant limitations, particularly an inability

to sit, stand, and/or walk for more than a total of two to four hours in a work day,

which were not included in the hypothetical posed to the VE. Indeed, consistent

with SSR 96-8p (clarifying that functional capacity assessment looks to “ability to

do sustained work-related . . . activities in a work setting on a regular and

continuing basis,” i.e., “8 hours a day for 5 days a w eek, or an equivalent work

schedule,” 1996 W L 374184, at *1 (emphasis added)), such limitations w ould

dictate a finding of disability, as the Commissioner has conceded in other cases.

Bladow v. Apfel, 205 F.3d 356, 359 (8th Cir. 2000); Kelley v. Apfel, 185 F.3d

                                          -4-
1211, 1214 (11th Cir. 1999); see also Rodriguez v. Bowen, 876 F.2d 759, 763 (9th

Cir. 1989) (pre-SSR 96-8p case directing award of benefits “[b]ecause capability

to work only a few hours per day does not constitute the ability to engage in

substantial gainful activity”). Thus, it was critical for the A LJ to properly assess

these findings in light of Dr. M aldonado’s treatment relationship with M r. Garcia,

as prescribed by 20 C.F.R. § 404.1527(d).

      Our review of the matter is hampered by two basic deficiencies in the

ALJ’s decision. First, the ALJ never addressed Dr. M aldonado’s treatment

relationship with M r. Garcia, in particular whether he qualified as a “treating

source” ordinarily entitled to special deference under § 404.1527(d). The

Commissioner now insists he was not a treating source. Given the general

prohibition on post hoc justification of agency decisions, see Allen v. Barnhart,

357 F.3d 1140, 1145 (10th Cir. 2004); Knipe v. Heckler, 755 F.2d 141, 149

(10th Cir. 1985), we would not uphold the agency’s decision on this basis unless

we could confidently say that no reasonable ALJ considering our record and

following the proper analysis could have resolved the matter in any other way,

Allen, 357 F.3d at 1145. Such a determination is not warranted by our record,

which shows that Dr. M aldonado saw M r. Garcia several times (beginning eight

months before M r. Garcia applied for benefits), performed repeated physical

examinations, ordered and reviewed x-rays and an M RI, and, on the basis of these

efforts, arrived at a recommendation for treatment involving significant surgical

                                          -5-
intervention, the risks and benefits of which he fully explained to M r. Garcia.

This case is thus unlike Doyal v. Barnhart, 331 F.3d 758 (10th Cir. 2003), on

which the Commissioner relies, where a physician was held not to be a treating

source because the record showed only that he had seen the claimant two times

some seven years apart. 1 See id. at 763-64. Under the circumstances, we assume

for purposes of this appeal that Dr. M aldonado is a treating source and review the

ALJ’s analysis of his opinions accordingly. W e do not, however, purport to usurp

the ALJ’s role as first-line decisionmaker, see Allen, 357 F.3d at 1144, and, thus,

we do not foreclose further consideration of Dr. M aldonado’s treating relationship

with M r. G arcia on remand should the Commissioner w ish to pursue that.

      The second impediment to our review is the ALJ’s failure to discuss the

two primary opposing medical sources, Dr. M aldonado and Dr. Schenck,

specifically in relation to each other and the scheme set out in § 404.1527(d) for

the evaluation of medical source opinions. As a result, we are left with gaps and

unmade connections in the administrative analysis under review . In any event,

filling these as best w e can by inference from the ALJ’s stated analysis still

leaves us with the firm conviction that the decision denying benefits cannot stand

on the rationale given.



1
      The Commissioner mistakenly cites Frey v. Bowen, 816 F.2d 508, 513-15
(10th Cir. 1987), as another example where treating-source status was rejected.
Actually, Frey reversed a denial of benefits because the treating physician’s
opinions should have been accorded controlling weight.

                                         -6-
      This court has detailed the principles governing the assessment of medical

opinions on numerous occasions. See, e.g., Langley v. Barnhart, 373 F.3d 1116,

1119 (10th Cir. 2004); Ham lin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

For our purposes, it will suffice to note that (1) “[t]he ALJ is required to give

controlling weight to the opinion of a treating physician as long as the opinion is

supported by medically acceptable clinical and laboratory techniques and is not

inconsistent with other substantial evidence in the record,” and (2) “[w]hen an

ALJ rejects a treating physician’s opinion, he must articulate specific, legitimate

reasons for his decision,” Hamlin, 365 F.3d at 1215 (quotation omitted). Here,

the ALJ “g[a]ve Dr. M aldonado’s conclusions no significant weight,” App. II at

239, for three reasons that do not stand up to scrutiny in light of the record and

controlling law.

      First, the ALJ concluded that “Dr. M aldonado relied excessively on the

claimant’s subjective complaints,” id., citing one page from the notes attached to

Dr. M aldonado’s October 2001 functional assessment, where he said: “I had a

long talk with the patient. He is miserable and his life is miserable. H e says he is

not happy. I told him I could see that in his face, as well as in the examination,”

id. at 211. The same notes, however, and other treatment records the ALJ failed

to mention, show that Dr. M aldonado also had multiple physical examinations, as

well as xray/M RI confirmation of recurrent disc herniation, to rely on for his

assessment. See id. at 181-83, 189-91, 210-11. This court has made it clear that

                                          -7-
when an ALJ rejects a medical opinion under such circumstances, based on his

speculation that the doctor was unduly swayed by a patient’s subjective

complaints, the ALJ deviates from correct legal standards and his decision is not

supported by substantial evidence. Langley, 373 F.3d at 1121.

      Second, the ALJ stated that Dr. M aldonado’s functional assessment was

“not consistent with Dr. M aldonado’s own objective findings.” App. II at 239.

Some of the findings the ALJ cited to support this statement are simply irrelevant,

such as the normal sensory function in M r. Garcia’s right foot and the “okay”

range of motion in his knees. Id. The finding that M r. Garcia’s “hip motion was

okay,” id., might be relevant, but this one positive indication is drained of any

significance in light of plainly pertinent findings that the ALJ ignored, such as

“significant tenderness to percussion over the lower lumbar spine. There is mild

to moderate lumbar paraspinous muscle spasm. Forward bending is very minimal.

Extension is almost non-existent. The lateral bend is not able to be done” – all

clearly functionally related to M r. Garcia’s objectively demonstrated underlying

disc herniation. 2 Id. at 210. Finally, the finding that M r. Garcia w as “temporarily

totally disabled from even the most sedentary activity because of inability to sit

still for more than a few minutes,” id. at 239, does not undercut Dr. M aldonado’s



2
       It bears repeating that Dr. M aldonado’s findings of pain and impairment
were severe enough to prompt him to recommend a second invasive spinal surgery
(a two level lumbar diskectomy with interbody fusion) even though he could not
offer any guarantees that it w ould provide relief. See App. II at 181.

                                          -8-
RFC assessment that M r. Garcia could sit for no more than one to two hours in a

workday; indeed, it reflects an even more extreme, albeit more specific, postural

limitation. To the extent the ALJ w as focusing on the temporal qualification in

the cited finding (suggested by the ALJ’s alteration of the original “temporarily

totally disabled . . .,” id. at 212, to “only temporarily totally disabled . . .,” id. at

239 (emphasis added)), there is nothing inconsistent in so qualifying a limit on

the ability to sit continuously without changing position and not so qualifying a

limit on the total amount of time one can sit (in any manner) in an eight hour day.

In sum, the ALJ’s criticism that Dr. M aldonado’s objective findings contradicted

his RFC assessment is unfounded. 3

       Third, the ALJ held that Dr. M aldonado’s assessment was “not consistent

with the record as a whole.” Id. The only supporting reference given by the ALJ

was a general allusion to “evidence of symptom magnification.” Id. Earlier in

his decision, the ALJ had discussed Dr. Schenck’s consultative report stating that

M r. Garcia “exhibited marked pain behavior . . . much more evident when



3
       The Commissioner attempts to buttress the ALJ’s analysis with some more
specific points. The Commissioner notes that M r. Garcia told Dr. M aldonado that
“sitting for more than two hours aggravates the pain in almost any kind of chair,”
App. II at 187, 190, but we fail to see how that statement fatally undermines the
doctor’s opinion that M r. Garcia should sit no more than two hours in a workday.
The Commissioner also notes that Dr. M aldonado’s more detailed functional
assessment was prepared several months after M r. Garcia’s insured status expired,
but given its consistency with Dr. M aldonado’s initial opinion of total disability
and his treatment notes from over a year before the expiration of M r. Garcia’s
insured status, the timing issue raised post hoc here is more form than substance.

                                             -9-
observed than when unobserved,” noting that his “antalgic gait [i.e., limp]

walking across the parking lot . . . got much worse when he got into the clinic,”

and contrasting his “exaggerated pain behavior . . . during the entire exam” with

the fact that “when distracted, he was able to sit and fill out his paperwork, do an

eye exam, and sit in the hearing booth.” Id. at 238. M r. Garcia explained,

however, that the latter seated activities were of short duration (five to fifteen

minutes) and were alleviated by intervening periods of standing and walking. Id.

at 115. He also raised issues about the accuracy, completeness, impartiality, and

reliability of the consultative report – on which we need not and do not comment.

The decisive point here concerns, rather, the ALJ’s inversion of the prescribed

prioritization of medical opinions, which gives precedence to a treating opinion

over a consulting opinion unless, given the substance and substantiation of the

latter, it demonstrably outweighs the former. See Hamlin, 365 F.3d at 1219

(explaining that “consultative physician’s report should be ‘examined to see if it

“outweighs” the treating physician’s report, not the other way around.’” (quoting

Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988)). Contrary to that rule, the

ALJ rejected Dr. M aldonado’s treating opinion because a consulting physician

simply disagreed with him over the interpretation and assessment of the

symptoms of M r. G arcia’s impairment.

      There may be cases in which a consultant’s suspicion of exaggeration, if

well-substantiated and corroborated, could displace a treating physician’s opinion

                                          -10-
that had been based predominantly on subjective symptoms, but we do not have

such circumstances here. Dr. M aldonado’s opinion was based on a convergence

of objective tests and physical examinations and was tied to a recommendation for

significant surgical intervention; it was not a mere recitation of subjective

complaints related by the claimant. Dr. Schenck’s suspicion of exaggeration, on

the other hand, was an inference from inconclusive observations 4 made during a

single visit (by a physician not responsible for successfully treating the condition

in question) and was not voiced by any other examining physician in our record

(and there were at least five doctors who saw M r. Garcia at least once and noted

his symptoms of pain without suggesting any exaggeration). 5 If we held such a

suspicion sufficient to defeat a properly substantiated treating opinion, the

treating-physician rule would become a rather hollow principle.


4
       For example, Dr. Schenck did not say that M r. Garcia fabricated a limp, but
only that she perceived a worsening of the limp admittedly evident as he crossed
the parking lot. App. II at 178. She comm ented on his “moaning and groaning”
during his physical exam, id., but she had no comparable experience with similar
exertional (flexion/extension/abduction/rotation) activity by M r. Garcia from
which to gauge the presence or extent of the exaggeration she inferred.
5
       The A LJ also noted that an athletic trainer indicated a “tendency tow ard
symptom magnification,” App. II at 238, based on M r. Garcia’s responses to a
pain questionnaire, see id. at 168. An athletic trainer, however, is not a “medical
source” to be weighed under the scheme for evaluating medical opinion evidence,
see § 404.1527(a)(2) (referring to statements of “physicians and psychologists or
other acceptable medical sources”); § 404.1513(a)(1)-(5) (specifying “acceptable
medical sources”). In any event, considered as an informed lay observer, the
trainer still noted significant sitting limitations (one hour at a time, no more than
four hours a day) that are much more consistent with Dr. M aldonado’s findings
than those of Dr. Schenck. See App. II at 119.

                                         -11-
      Dr. Schenck also offered her own functional assessment of M r. Garcia, in

which she discounted any limitations on his ability to sit, stand, or walk, and

opined that he would be able to perform light work. Given the direct opposition

between these findings and those of Dr. M aldonado, and the absence of any other

comparable medical source evidence, 6 what we have just said about the relative

priority of treating and consulting opinions is implicated in this regard as well.

      Although the ALJ summarily concluded that Dr. M aldonado’s findings

were contrary to the record, and the source of contradiction in the record was

Dr. Schenck’s report, the ALJ never specifically held, much less explained why,

Dr. M aldonado’s opinions were outweighed by those of the consultant. Indeed,

the ALJ did not adopt Dr. Schenck’s findings either – she had opined that

M r. Garcia had no stand/walk restrictions and could therefore perform light work,

while the ALJ held he could perform only a limited range of sedentary work. If

an ALJ cannot summarily accept and elevate a consulting opinion over a treating

6
       Other medical records, including those of D r. Hood, relate to M r. Garcia’s
condition leading up to and following his initial surgery in 1993-94, and do not
contain the detailed functional findings provided in the reports from 2000-01. W e
note, however, that Dr. Hood’s records, which the ALJ again failed to address as
directed on remand, did state that M r. Garcia should avoid “long periods of
standing or sitting or any like activity,” A pp. II at 132 – a restriction much more
consistent with Dr. M aldonado’s findings than those of Dr. Schenck. It was error
for the ALJ to ignore this supporting evidence from Dr. H ood, see Sullivan v.
Hudson, 490 U.S. 877, 886 (1989) (“Deviation from the court’s remand order in
the subsequent administrative proceedings is itself legal error, subject to reversal
on further judicial review.”), though the Commissioner argues the omission was
harmless. W e need not resolve this collateral dispute, as the ALJ’s deficient
assessment of Dr. M aldonado’s findings necessitates reversal in any event.

                                         -12-
opinion, a fortiori the ALJ here could not reject Dr. M aldonado’s opinion simply

based on its contradiction by a consulting opinion the ALJ also did not accept. 7

Given the ALJ’s failure to address these medical opinions with reference to the

controlling regulation, and his resultant failure to adequately justify his rejection

of the treating physician’s opinion (under which the claimant would clearly be

disabled), the decision denying benefits must be reversed.

                            V E-DOT DISCREPANCY

      M r. Garcia also argues that the ALJ improperly relied on VE testimony that

conflicted with the DOT. Specifically, in response to the ALJ’s hypothetical

questioning that indicated M r. Garcia could perform only “routine, repetitive” and

“simple” work, App. II at 284, 285; see also id. at 240-41, the VE identified jobs

(charge account clerk and surveillance system monitor) for which, as explained

below, the DOT specifies a higher reasoning level (level 3).

      This court adheres to the rule, adopted in Haddock, 196 F.3d at 1087,

reaffirmed in Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005), and

codified in SSR 00-4p, that an ALJ must elicit a reasonable explanation for any

material conflicts between a VE’s testimony and occupational information in the

7
       Similarly, lifting restrictions of fifty and thirty-five pounds noted in 1994
by Dr. Garland and Dr. Reiter, respectively (cited by the Commissioner as a broad
indication of greater functional capacity than that found by Dr. M aldonado) are
not relevant given that the ALJ specifically found M r. Garcia’s “maximum lifting
ability is 10 pounds,” App. II at 240. See Saiz v. Barnhart, 392 F.3d 397, 399
(10th Cir. 2004) (holding Commissioner’s argument “undone by the obvious point
that the A LJ himself noted [a contrary] limitation”).

                                         -13-
DOT. M ore specifically relevant here, in Hackett we found a facial conflict

between a claimant’s “inability to perform more than simple and repetitive tasks”

and the “level-three reasoning” required in the DO T for jobs identified by the VE,

and, consequently, reversed and remanded for an explanation, if any, that would

resolve the conflict so as to permit reliance on the VE’s testimony. Hackett, 395

F.3d at 1176. M r. Garcia argues Hackett requires reversal and remand here.

      In response, the Commissioner again resorts to post hoc justifications to

support the ALJ’s decision. As noted earlier, such justifications cannot succeed

unless they are so conclusive that no reasonable ALJ could have resolved the

disputed matter in any other w ay. Allen, 357 F.3d at 1145. W e doubt any of the

Commissioner’s efforts are so compelling; indeed, some are inadequate on their

face. For example, the Commissioner insists the ALJ was referring to physically

simple and routine tasks and, thus, not suggesting any mental restriction. But, as

Hackett itself reflects, “simple and routine” is a limitation associated with the

mental, not physical, aspects of work (indeed, it is a cognitively-based limitation

typically restricting the claimant to physical labor, not a physical restriction on

such labor), and the context does not suggest the ALJ used the phrase in another

sense. Rather, the context indicates the ALJ was addressing M r. Garcia’s lack of

learned skills and limited education (and in that regard we note M r. Garcia had

been held back a grade in elementary school and had failed the written test for

military service). See App. II at 283. The Commissioner also argues that the

                                          -14-
evidence does not actually support a limitation to simple and routine work. This

line of argument, however, is foreclosed by the fact “that the ALJ himself noted

the limitation.” Saiz, 392 F.3d at 399.

      W e need not respond point-for-point to all of the Commissioner’s efforts to

justify the A LJ’s decision insofar as it implicates the V E-DOT conflict, nor must

we resolve whether the one occupation identified by the VE unaffected by the

conflict (jewelry preparer, involving 160 state jobs) reflects work in sufficient

numbers to conclusively establish the requisite numerical significance, see Allen,

357 F.3d at 1144-45, as we are remanding the case on account of other error in

any event. But we do emphasize the analytical significance and consequences of

the ALJ’s finding regarding the cognitive demands M r. Garcia is able to meet and

reaffirm that, if the A LJ seeks to properly account for these on remand, he must

heed the guidance provided by this court’s decisions in Hackett and Haddock.

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

REM ANDED with instructions to remand, in turn, to the Commissioner for

further proceedings consistent with this order and judgment.



                                                     Entered for the Court


                                                     M onroe G. M cKay
                                                     Circuit Judge




                                          -15-
