F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

FEB 4 2005

PATRICK FISHER
Clerk

JOY VICTORY,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner, Social Security
Administration,

No. 03-7129
(D.C. No. 03-CV-207-S)
(E.D. Okla.)

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This order and judgment is not binding precedent, except under the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 judges order affirming the
Commissioners decision to deny her application for Social Security disability
insurance and supplemental security income benefits.

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.

She continued to have problems with her lumbar spine, and was

The parties consented to proceed before a magistrate judge pursuant to

28 U.S.C. 636(c).

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).

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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 Commissioners 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
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reviewed the medical opinions of Drs. Billings, Covington, and Hale. We find no
record support for the magistrate judges 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 physicians 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
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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 physicians 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 ALJs 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
claimants 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
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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. Covingtons opinion as to claimants 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 ALJs 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).

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The ALJ rejected Dr. Covingtons 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. Covingtons 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 claimants 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 claimants medical file, but apparently never examined her.
The ALJs finding that Dr. Covingtons opinion was based on claimants
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 physicians opinion based on speculation). We find no

support in the record for the ALJs conclusion. Nothing in Dr. Covingtons report
indicates that he based his opinion on claimants subjective complaints, and the
ALJs finding ignores all of Dr. Covingtons examinations, medical tests, and
reports. Indeed, the ALJs discussion of Dr. Covington omits entirely his
March 22, 2001 examination and report.

His April 3, 2001 statement might well

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

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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
claimants subjective complaints, as the ALJ speculated.

See Morales v. Apfel ,

225 F.3d 310, 317 (3d Cir. 2000) (noting that the treating physicians opinion may
reflect expert judgment based on a continuing observation of the patients
condition over a prolonged period of time).
Nevertheless, even assuming that the ALJ properly concluded that
Dr. Covingtons statement regarding claimants 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

(...continued)
he had not examined claimant since August 1998. This statement is not accurate,
because the record includes Dr. Covingtons 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.
3

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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. Covingtons
opinion about claimants 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. Covingtons 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 ALJs task is to examine a
non-examining physicians report to see if it outweighs the treating physicians
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. Woodcocks opinion.
Because the ALJ failed to follow the correct legal standards in evaluating
Dr. Covingtons opinion, which undermines the ALJs assessment of claimants
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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 ALJs decision makes no mention whatsoever
of Dr. Hales 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

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

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physicians 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 ALJs failure to give any

consideration to Dr. Hales 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. Hales 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. Trinidads 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
physicians 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

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374183, at *1). Again, the ALJs failure to give any consideration to

Dr. Trinidads 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.

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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

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