Lawton v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit

FEB 7 2005
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk

JOHN E. LAWTON,

Plaintiff-Appellant,

v. No. 04-1050
(D.C. No. 02-B-2219)
JO ANNE B. BARNHART, (D. Colo.)
Commissioner of Social Security,

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 that oral argument would not materially assist the determination of

*
This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

John E. Lawton, pro se , appeals from the district court’s affirmance of the

Commissioner of the Social Security Administration’s decision denying his

application for supplemental security income (SSI) benefits. See 42 U.S.C.

§§ 1381-1383c. We liberally construe Mr. Lawton’s appellate briefs. See, e.g.,

Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon , 935

F.2d 1106, 1110 & n.3 (10th Cir. 1991) (“The Haines rule applies to all

proceedings involving a pro se litigant . . . .”). Mr. Lawton argues that the

administrative law judge (ALJ) (1) failed to adequately develop the medical

record; (2) improperly determined Mr. Lawton’s credibility; (3) failed to give

proper weight to Mr. Lawton’s treating physicians’ opinions; (4) failed to

properly consider the entire medical record; and (5) failed to accept the vocational

expert’s (VE) testimony that no jobs exist in the national economy that

Mr. Lawton can perform. He also argues that (6) the Appeals Council erred in

upholding the ALJ’s decision notwithstanding Mr. Lawton’s submission of further

objective medical evidence demonstrating the actual severity of his medical

condition, and (7) the decision is not supported by substantial evidence

considering the whole record. We have jurisdiction to review this appeal under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we reverse.

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 I. Standard of review

Our standard of review is well-settled:

We review the agency’s decision to determine whether the factual
findings are supported by substantial evidence in the record and
whether the correct legal standards were applied. Substantial
evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. However, a decision is not
based on substantial evidence if it is overwhelmed by other evidence
in the record or if there is a mere scintilla of evidence supporting it.
The agency’s failure to apply correct legal standards, or show us it
has done so, is also grounds for reversal. Finally, because our review
is based on the record taken as a whole, we will meticulously
examine the record in order to determine if the evidence supporting
the agency’s decision is substantial, taking into account whatever in
the record fairly detracts from its weight. However, we may neither
reweigh the evidence nor substitute our discretion for that of the
Commissioner.

Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotations, citations,

and alterations omitted). “Evidence is not substantial if it is overwhelmed by

other evidence, particularly certain types of evidence (e.g., that offered by

treating physicians) or if it really constitutes not evidence but mere conclusion.”

Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987) (quotations omitted).

II. Relevant facts

In his application for SSI benefits filed in March 1999, Mr. Lawton claimed

disability as of December 5, 1998, due to chronic severe back pain, torn muscles

in his left wrist, “RSI” in his left index finger, a “bad” left ankle and right big

toe, and carpal tunnel syndrome in both wrists. Aple. Supp. App. at 91. His

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claim was denied initially, upon reconsideration, and after a hearing before an

ALJ. After taking testimony from a VE at the hearing and reviewing the medical

record, the ALJ determined at step four of the five-step sequential test for

evaluating disability that Mr. Lawton is unable to perform his past relevant work.

See 29 C.F.R. § 404.1520 (setting forth five-step test), Williams v. Bowen , 844

F.2d 748, 750-51 (10th Cir. 1988). At step five, however, the ALJ determined

that Mr. Lawton is still able to perform a limited range of light work that exists in

significant numbers in the national economy. Aple. Supp. App. at 43.

The Appeals Council denied Mr. Lawton’s request for review, making the

ALJ’s decision the final decision of the Commissioner. Thereafter, Mr. Lawton

sought judicial review in the district court, which affirmed the Commissioner’s

decision. Mr. Lawton again appeals.

At the time of the hearing, Mr. Lawton was forty-four years old with a past

work history as an electronics repair technician, bus driver, and book binder. He

has a long history of back pain resulting from two injuries, which he testified that

he self-treated for many years with alcohol and drug abuse, over-the-counter pain

relievers, bed rest, and hot baths. He had no medical insurance and had not been

able to afford regular medical treatment until he was accepted into a “CICP

program” in 1999. See id. at 199, 216, 222. Mr. Lawton successfully completed

a course of drug and alcohol abuse treatment in 1984. After lifting a computer

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component and re-injuring his back, in December 1998 Mr. Lawton went to the

emergency room for back pain, sciatica, and muscle spasms, and was prescribed

flexeril (a muscle relaxant) and naprosyn (an anti-inflammatory drug). Id. at 224.

He followed up with a physician’s assistant, P.A. Zimmerman, in March-July

1999, and was then referred to, and treated by, Dr. Rainey, an osteopathic doctor.

He never returned to work after December 1998.

A. Treating physician reports.

1. P.A. Zimmerman’s reports. In March 1999, Mr. Lawton continued to

complain of left leg numbness and sciatica and reported that he could not take

narcotic drugs because of his past drug and alcohol addictions. Id. at 222. He

also became unable to take prescribed anti-inflammatories, ibuprofen, and aspirin

because of stomach and colon problems and an allergic rash. On March 3, P.A.

Zimmerman noted midline back tenderness and decreased reflexes on the left

side; he placed “light duty work” and “no lifting and bending” restrictions on

Mr. Lawton and ordered some x-rays. Id. at 216, 222-23.

On April 26, 1999, P.A. Zimmerman examined Mr. Lawton and recorded

that he was still having pain and tenderness with decreased reflexes. Id. at 216.

His x-rays showed an old compression fracture at T12 and “mild degenerative

changes, primarily at T12-L1.” Id. at 217. There was apparently a separate

lumbar report, see id. , but it does not appear in the record. In July 1999, P.A.

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Zimmerman noted that Mr. Lawton complained of increasing back pain with leg

numbness. He had positive straight leg raises, but “no tenderness to palpation

midline of the back pain. Reflexes [were] symmetrical and equal.” Id. at 203.

P.A. Zimmerman ordered an MRI. The MRI showed decreased signal from L2-

S1, consistent with dessication. Id. at 198. There were mild posterior disc bulges

at L3-4, L4-5, and L5-S1, with effacement of the ventral thecal sac, but “no

evidence of significant neural foraminal narrowing.” Id. There were mild

degenerative changes of the facets with ligamentum flavum hypertrophy

contributing to mild spinal canal stenosis at L3-4 and L4-5. Id. P.A. Zimmerman

referred Mr. Lawton to Dr. Rainey, and Mr. Lawton began treatment with

Dr. Rainey in August 1999.

2. Dr. Rainey’s reports. In August, Dr. Rainey found “generalized

tenderness over the paravertebral muscles between the intrascapular region and

lumbar regions.” Id. at 174. Mr. Lawton was unable to touch his toes by 18

inches, and had decreased sensation in his right calf. Id. He could “heel and toe

walk satisfactorily,” had +2/4 reflexes bilaterally, a +5/5 motor exam, and a

negative straight-leg raising exam. Id. Dr. Rainey reviewed the MRI report and

recommended a trial of epidural steroid injections, and Mr. Lawton received two

injections in September. Id. at 176-86. Mr. Lawton testified that he rejected the

third injection because the injections were painful and he did not gain substantial

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pain relief from them. In February 2000, Mr. Lawton returned to Dr. Rainey, still

complaining of significant pain in his thoracic and lumbar spine and bilateral

radiculopathy. Id. at 226. He lacked being able to touch his toes by two feet, had

-2/4 bilateral reflexes, had decreased sensation over the lateral side of his left leg,

and a positive straight-leg raising exam on the left. Id. He was still able to heel-

toe walk satisfactorily and had a +5/5 motor exam. Id. Dr. Rainey recommended

a one-month trial of physical therapy, which Mr. Lawton participated in from

February 23 to March 20, 2000. Id. ; see id. at 233-44. Mr. Lawton’s goals were

to (1) be able to sit in a chair for 30 minutes, (2) to sleep through the night, (3) to

return to working, and (4) to perform physical therapy exercises in home care. Id.

at 233.

On March 13, the therapist noted that Mr. Lawton was “tolerating minimal

amount of therex [with] overfatiguing.” Id. at 244. On March 15, Mr. Lawton

stated that his back was feeling better. He stated that he had walked to the library

carrying fifteen pounds of books and walked home with twenty pounds of

groceries without experiencing “additional pain from that.” Id. at 243. At his

next session two days later, however, he reported experiencing stabbing pain the

day before down his left leg. See id.

Dr. Rainey examined him again on March 29 and noted that the physical

therapy treatment helped, but that Mr. Lawton still had chronic pain and

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radiculopathy in his lower extremities. Id. at 245. His objective signs were

unchanged from the previous visit except for improvement in his bilateral reflexes

and a negative straight-leg-raising exam. Dr. Rainey noted pain with palpation of

Mr. Lawton’s lumbar spine, and that his paravertebral muscles were in spasm. Id.

On March 31, 2000, Dr. Rainey filled out a disability form for Mr. Lawton,

diagnosing chronic lower back pain with radiculopathy and stating that he

expected Mr. Lawton’s disability to be permanent. Id. at 227. He indicated that

there had been no improvement in Mr. Lawton’s physical condition with medical

therapy and that it could not be improved with a prescribed course of therapy. Id.

at 228. And he checked a box in the form stating that Mr. Lawton “has been or

will be disabled to the extent [he is] unable to work at any job for a period of . . .

12 months or more due to a physical . . . impairment which is disabling.” Id.

3. Dr. Reishus’s report. On April 19, 1999 (before x-rays or MRIs had

been taken), Dr. Reishus 1
filled out a disability form in which he noted that

Mr. Lawton is “unable to sit or stand for long periods. Weakness in both legs.

Has carpal tunnel syndrome both hands, L is worse” and that he has “chronic low

back pain.” Id. at 19. Dr. Reishus was unable to give a prognosis for length of

1
Mr. Lawton states that Dr. Reishus is a “long-term” treating physician,
Aplt. Br. at 10, but there are no medical records in the administrative record from
Dr. Reishus except for his disability form. Mr. Lawton’s original disability
application states that Dr. Reishus was his treating physician from 1981 to 1990.
Aple. Supp. App. at 94.

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disability at that time, but stated that his prognosis “likely could be improved

upon full evaluation and appropriate treatment, perhaps surgery.” Id. But he

limited Mr. Lawton to light work with a restriction that he had to “be able to get

up and down a lot thru [sic] work shift.” Id. at 20.

B. Consulting physicians.

1. Dr. Michener’s report. In May 1999, Dr. Michener, a consultative

physician hired by the Commissioner, ordered more x-rays. Mr. Lawton told her

he had previously fractured a vertebrae, see id. at 167, 168, but she stated that she

had no medical records to review. Id. at 168. In her exam, Dr. Michener noted

decreased range of motion in Mr. Lawton’s cervical, dorsolumbar, hip, ankle,

shoulder, and wrist joints; a positive straight-leg sign on the left; and tenderness

in his bilateral paraspinous muscles. Id. at 170. She also noted that he had

tingling in his fingers bilaterally with tapping on his medial nerves and tenderness

in his left forearm, and that he used a splint on his left wrist. Id. 168-70.

Dr. Michener stated that Mr. Lawton should not use his left wrist for lifting. Id.

at 171. But she concluded that he could lift 10 pounds frequently and 20 pounds

occasionally, and could stand or walk for 2 hours and sit for 6 hours out of an 8-

hour day. Id. She concluded that he should stoop only infrequently, should not

push or pull, and could reach, handle, finger, and feel with only his right side. Id.

She opined that most of his limitations were due to his left wrist and suggested

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vocational rehabilitation. After writing her report, Dr. Michener received x-ray

results interpreted by Dr. Leever, an osteopath. Dr. Leever’s report stated that

Mr. Lawton only had “mild degenerative disc disease” in his lower thoracic spine

and at L2-3, that he had no fractures, and that his right toe and ankle were

normal. See id. at 172. Dr. Michener made no changes in her functional

assessments after receiving this report. See id. at 171.

2. Non-examining consultation reports. In June 1999, Dr. Andriole, a

physician from the state agency, reviewed the record and completed a residual

functioning capacity (“RFC”) assessment. He concluded that Mr. Lawton retains

the RFC to do medium work and rejected restrictions imposed by Dr. Michener.

Dr. Twombly, another state physician, affirmed Dr. Andriole’s findings in

November 1999. The ALJ rejected both of these opinions as unsupportable in

light of the entire record, and the Commissioner does not challenge the ALJ’s

conclusions. Id. at 45. We therefore do not consider them further.

C. Re-interpretation of previous x-rays.

In July 2000, Mr. Lawton asked Dr. Spann, a radiologist/orthopedic

surgeon, to review the x-rays taken in May 1999 and originally interpreted by

Dr. Leever for consulting physician Dr. Michener. Dr. Spann reported that the x-

rays showed not only mild degenerative disc disease in the mid-to-inferior

thoracic spine, but that he also saw “mild end plate irregularity and sclerosis and

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minimal anterolateral osteophytes scattered throughout primarily the mid to

inferior thoracic spine.” Id. at 231. He also saw slight disc space narrowing at

the L4-5 level and a “wedge deformity” that could represent an old compression

fracture at L1 with disc space narrowing at L1-2. Further, he found some

“prominent anterior and posterior osteophytes formations at the C5-6 level” with

some disc space narrowing. Id. His reading of the May 1999 right great toe x-ray

showed development of “minimal osteophytes,” which he described as “minimal

degenerative changes” in the metatarsal phalangeal joint. Id. at 230. Dr. Spann

recommended taking dedicated cervical spine films to better evaluate Mr.

Lawton’s neck. Mr. Lawton submitted Dr. Spann’s reports to the ALJ.

D. Post-hearing medical evidence.

In February 2001, Mr. Lawton had an MRI of his cervical spine. Dr. Spann

found a

prominent posterolateral osteophyte right paracentrally and right
laterally at the C5-6 level causing fairly high-grade neural foraminal
narrowing at that level as well as causing some pressure effect on the
adjacent thecal sac, and even causing very slight deformity of the
right side of the cervical cord at that level.

Id. at 248. Dr. Spann also reported some straightening of the superior cervical

spine and moderate disc-space narrowing and hypertrophic facet disease at C5-6.

Id. at 249.

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 Dr. Rainey saw Mr. Lawton on March 8, 2001 for complaints of pain

radiating down Mr. Lawton’s left upper extremity and pain with neck motion. Id.

at 247. He noted that Mr. Lawton “lacks touching his chin to his chest by two

fingerbreadths” and lacks touching his chin to his shoulder “by three

fingerbreadths” but that he “extends normally.” Id. Sensation was decreased in

the radial distribution in the left upper extremity. After reviewing his cervical

MRI and noting “indentation on the cervical cord,” Dr. Rainey diagnosed chronic

cervical radiculopathy and recommended referral to a surgeon. Id.

Dr. Rainey re-examined Mr. Lawton’s back on March 22, 2001. Id. at 246.

His objective findings were the same as those found on March 29, 2000. See id.

Dr. Rainey reviewed his former disability report, recommended evaluation to see

if surgical treatment is warranted, and again opined that Mr. Lawton’s “condition

is permanent.” Id. Mr. Lawton submitted these records to the Appeals Council.

E. Mr. Lawton’s testimony.

At the July 12, 2000, hearing, Mr. Lawton testified that he has lumbar back

pain all day, every day, with the severity depending upon his level of activity.

Aple. Supp. App. at 272-73. He stated that, if he stays in a recliner on a vibrating

heating pad, the pain is on a level of 1-2 on a scale of 1-10. The radicular left leg

pain is 1-2 all the time, and it increases to a 7 if he walks too long or too fast. If

he turns his torso the wrong way while walking, he loses strength in his legs and

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cannot walk; if he sits upright for more than one-half hour, he also has trouble

walking when he gets up because his legs and feet fall asleep and he gets stiff

when sitting upright. He testified that, if he did minimal activity, he had pain in

his thoracic area about 25% of the time, with level 9-10 pain about three or four

times a month if he increased his activity. He has spasms in his neck muscles,

and his neck pain increases if he has to “spend much time” turning his head to

either side, looking or reaching up, or tilting his head downward. Id. at 277-78.

When he was working as an electronics repairman, Mr. Lawton’s pain level

was 5-9, with the pain increasing as the day went on, even though he was

spending about $60/week on over-the-counter analgesics. Id. at 274. The more

he has to sit up straight, bend, lift, or carry, the more intense his pain becomes,

and he cannot take medications sufficient to relieve the pain because of his

former addiction and current stomach and colon problems.

Mr. Lawton testified that he could stand from one-half hour to an hour at a

time and that some walking actually helps reduce pain. He tries to walk about

one-and-one-half miles several days each week to help lower his high blood

pressure, but sometimes has leg pain and numbness ranging from a 3 to a 7 after

the walk. He has to lie down or sit sometimes when walking and never walks

more than an hour because the pain will be too great. He has difficulty picking

up and finger-tip controlling objects because of his carpal tunnel syndrome and

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torn left wrist muscles, especially with his left hand. He does not have the

strength to do repeat arm/hand operations for more than half an hour or an hour.

If he lifts and carries more than two pounds of groceries and walks home, his pain

levels increase. Carrying ten pounds of groceries causes his pain levels to go to

4-5. He testified that he has tried everything he could, and that his pain levels

had been better for the past year and one-half because he had “been able to

minimize [his] activity.” Id. at 284. Mr. Lawton’s hearing testimony is

consistent with his statements in his application.

F. The ALJ’s hypotheticals.

In his first hypothetical to the VE, the ALJ presented the following factors:

Mr. Lawton’s age, education, and experience; an RFC for sedentary work 2
with

lifting primarily with the right hand; ability to stand for an hour at a time up to

four hours in an eight-hour day; ability to walk for an hour two times in an eight-

hour day; ability to sit for 30 minutes at a time for four hours in an eight-hour

day; ability to only occasionally do prolonged (defined as up to five minutes)

2
“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 416.967(a). “Most unskilled sedentary
jobs require good use of both hands and the fingers; i.e., bilateral manual
dexterity. . . . Most unskilled sedentary jobs require good use of the hands and
fingers for repetitive hand-finger actions.” SSR 96-9p, 1996 WL 374185, *8.

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flexing, extension, and turning of the head/neck; avoid ladder and scaffold

climbing, crawling, concentrated exposure to extreme cold, walking on wet,

slippery, rough, or uneven surfaces and heights; ability to do occasional ramp and

stair climbing, stooping, kneeling, crouching, over-shoulder reaching, left-hand

handling or fingering, and ability to do frequent handling and fingering with the

right arm and hand. Aple. Supp. App. at 292-93. The VE testified that the limits

on neck flexion would totally preclude all sedentary jobs. Id.

In his second hypothetical, the ALJ asked the VE to assume an RFC for

light work 3 with the need to take breaks every two hours and the following

additional factors: primary use of the right hand for lifting; standing, walking,

and/or sitting for one hour at a time for up to four hours each; the same

“occasional” limitations on climbing, cold, walking surfaces, stooping, crouching,

crawling, left-hand handling and fingering and over-shoulder reaching; and an

ability to frequently handle and finger with the right hand and to kneel and

3
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To
be considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).

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balance. With these abilities and limitations, the VE testified that a person could

perform the jobs of cashier at the light RFC level, and order clerk at the sedentary

RFC level, but he reduced the available numbers of jobs by 50% because of the

need to alternate sitting and standing or walking. He also testified that such a

person could perform a light job as an assembler of plastic hospital products and a

sedentary job as a lampshade assembler, but both jobs would have to be reduced

by 50% because of the need to alternate sitting and standing and by 75% because

of limits on handling and fingering with the left hand.

In his third hypothetical, the ALJ kept all the abilities and limitations of the

second hypothetical, except that he limited standing and walking to two hours out

of an eight-hour day, and sitting to no more than one hour at a time for up to six

hours. Aple. Supp. App. at 297. The VE testified that the change would

eliminate all light level jobs that he had previously listed in the second

hypothetical. Id.

In his fourth hypothetical, the ALJ kept all the abilities and limitations of

the second hypothetical, except to limit the use of the left arm to no reaching,

handling, fingering, or feeling. Id. at 298. The VE stated that all work would be

eliminated. Id.

As a general question, the ALJ then asked whether jobs were available for a

person who could not keep up a standard production pace on the jobs listed under

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his second hypothetical. Id. at 300. The VE stated that the only job available

using the second hypothetical with an added limitation of not being able to keep

up production pace is that as a surveillance system monitor, for which 138 jobs

exist in the Colorado economy. Id. at 300-01. In response to Mr. Lawton’s

questioning, the VE stated that even that job would be eliminated if there were

limitations on moving the neck and head. Id. at 303.

III. Analysis

A. Consideration of physicians’ medical opinions.

As discussed above, treating physician Dr. Rainey, who based his opinion

in part on objective medical evidence, including x-rays and MRI reports, see

Williams , 844 F.2d at 754-55 (“A medical finding itself is based upon more than

objective test results and includes a physician’s evaluation of observations and

reported patient history.”), issued a report concluding that Mr. Lawton is disabled.

Although an ALJ is not bound by a treating physician’s opinion on the ultimate

issue of disability, see § 416.927(e)(1), and that opinion is not entitled to

controlling weight on the ultimate issue, see SSR 96-5p, 1996 WL 374183, at *2,

that opinion still must be evaluated by applying the factors provided in

§ 416.927(d), id. at *3.

[O]pinions from any medical source on issues reserved to the
Commissioner must never be ignored. The adjudicator is required to
evaluate all evidence in the case record that may have a bearing on
the determination or decision of disability, including opinions from

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 medical sources about issues reserved to the Commissioner. If the
case record contains an opinion from a medical source on an issue
reserved to the Commissioner, the adjudicator must evaluate all the
evidence in the case record to determine the extent to which the
opinion is supported by the record.

Id.

Medical opinions not regarding the ultimate issue of disability, on the other

hand, are defined as statements from acceptable “medical sources that reflect

judgments about the nature and severity of [an individual’s] impairment(s),

including [his] symptoms, diagnosis and prognosis, what [he] can still do despite

impairment(s), and [his] physical or mental restrictions.” Id. A treating

physician’s medical opinion on issues that are not reserved to the Commissioner

is entitled to controlling weight if it is both “well-supported by medically

acceptable clinical and laboratory diagnostic techniques” and “consistent with

other substantial evidence in the record.” Watkins v. Barnhart, 350 F.3d 1297,

1300 (10th Cir. 2003) (quotation omitted). When reviewing the whole medical

record for inconsistencies,

[a] treating physician’s opinion must be given substantial weight
unless good cause is shown to disregard it. When a treating
physician’s opinion is inconsistent with other medical evidence, the
ALJ’s task is to examine the other physicians’ reports to see if they
‘outweigh’ the treating physician’s report, not the other way around.
The ALJ must give specific, legitimate reasons for disregarding the
treating physician’s opinion that a claimant is disabled. In addition,
the ALJ must consider the following specific factors to determine
what weight to give any medical opinion: (1) the length of the
treatment relationship and the frequency of examination; (2) the

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 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. 20 C.F.R. § 404.1527(d)(2)-(6).

Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289-90

(10th Cir. 1995) (quotations and alterations omitted); and see § 416.927(d)

(providing same factors as § 404.1527(d)).

The ALJ found that Mr. Lawton has the severe impairments of degenerative

disc disease and carpal tunnel syndrome, see Aple. Supp. App. at 41, and that “an

objective basis exists to support the symptoms alleged by [Mr. Lawton],” id. at

44. But he rejected Dr. Rainey’s opinion that Mr. Lawton is disabled, stating only

that “there are inconsistencies in the objective evidence” and that “the evidence,

when considered in its entirety, does not substantiate Dr. Rainey’s opinion

regarding the claimant’s back impairment.” Id. Except for mentioning that Mr.

Lawton could successfully heel-toe walk and that the ALJ believed he had

improvement in pain symptoms with epidural injections and physical therapy,

however, the ALJ did not state what those inconsistencies are, or what objective

medical evidence does not substantiate Dr. Rainey’s conclusions. See SSR 96-5P,

1996 WL 374183, at *3 (requiring ALJ to evaluate opinion regarding disability

using factors found in §§ 404.1527(d) or 416.927(d) to determine extent to which

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opinion is supported by the record); Hamlin , 365 F.3d at 1217 (reversing because

“the ALJ failed to provide any sufficiently specific reasons as to why he was

rejecting [the treating physician’s] opinion” that the petitioner had been disabled

for several years).

The ALJ’s conclusion that the medical evidence indicated that Mr. Lawton

“has had improvement in his pain symptoms and lessening of his symptoms with

various treatment including epidural injections and physical therapy,” Aple. Supp.

App. at 44, was specifically contradicted by Dr. Rainey, see id. at 228. The ALJ

pointed to no medical evidence supporting his opinion, but he did mention a

single physical therapy report noting that Mr. Lawton had walked and carried

groceries and books one day without experiencing additional problems. Aple.

Supp. App. at 44. But that report was offset by a subsequent report noting that

Mr. Lawton continued to experience stabbing pain in his legs. Id. at 243. The

ALJ is simply “not free to substitute his own medical opinion for that of a

disability claimant’s treating doctors.” Hamlin, 365 F.3d at 1221; cf. Thompson

v. Sullivan , 987 F.2d 1482, 1490 (10th Cir. 1993) (“The sporadic performance [of

household tasks or work] does not establish that a person is capable of engaging

in substantial gainful activity.”) (further quotation omitted; alteration in original).

It appears that the ALJ must have credited Dr. Michener’s opinion about

capacity to sit, stand, walk, and lift because it was the only one remaining besides

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Dr. Reishus’s after he rejected the opinions of the state agency doctors. But the

record shows that Dr. Michener’s opinion was developed (1) without the benefit

of MRIs or cervical x-rays, (2) without knowing that Mr. Lawton had

degenerative disc disease and three bulging discs in his lumbar spine and a

previously-fractured L1 vertebrae, (3) without knowing that Mr. Lawton had

prominent osteophyte formations and high-grade neural foraminal narrowing at

C5-6, causing a pressure effect on the adjacent thecal sac and an indentation in

the cervical cord, (4) without knowing of the degenerative joint disease in Mr.

Lawton’s right great toe, (5) without knowing that subsequent medical treatment

with epidural steroids and physical therapy, in Dr. Rainey’s opinion, was

unsuccessful, and (6) without any treatment history of Mr. Lawton. If the ALJ

adopted Dr. Michener’s medical opinions regarding Mr. Lawton’s back and neck,

he did not satisfy the requirement that he explain why, under these circumstances,

Dr. Michener’s opinion outweighed Dr. Rainey’s or Dr. Reishus’s. See Goatcher ,

52 F.3d at 290 (if ALJ finds that “treating physician’s opinion is inconsistent with

other medical evidence, the ALJ’s task is to examine the other physicians’ reports

to see if they outweigh the treating physician’s report”) (quotations and

alterations omitted). We conclude that the ALJ did not apply the correct legal

standards in evaluating the medical opinions.

B. Substantial evidence.

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 At step five of the disability process, the burden shifts to the Commissioner

to produce evidence that the claimant can perform other work. Talbot v. Heckler ,

814 F.2d 1456, 1466 (10th Cir. 1987). If the Commissioner does not meet that

burden, reversal is appropriate, id. , and “the claimant is entitled to benefits,”

Williams , 844 F.2d at 751. In arriving at an RFC, agency rulings require an ALJ

to provide a narrative discussion describing how the evidence supports his

conclusion. See SSR 96-8p, 1996 WL 374184, at *7. The ALJ must

discuss the individual’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis . . . and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record.

Id. The ALJ “must also explain how any material inconsistencies or ambiguities

in the case record were considered and resolved.” Id. “The RFC assessment must

include a discussion of why reported symptom-related functional limitations and

restrictions can or cannot reasonably be accepted as consistent with the medical

and other evidence.” Id. A function-by-function evaluation is necessary in order

to arrive at an accurate RFC. Id. at *3-*4 (“[A] failure to first make a function-

by-function assessment of the [claimant’s] limitations or restrictions could result

in the adjudicator overlooking some of [the claimant’s] limitations or restrictions.”).

Assuming that the ALJ relied on Dr. Michener’s medical evaluations, the

medical record does not support the Commissioner’s conclusion that Mr. Lawton

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is able to sit while performing light work that exists in substantial numbers in the

national economy. The ALJ concluded that Mr. Lawton retained a light RFC

(ability to lift no more than 20 pounds occasionally and 10 pounds frequently),

with the following limitations: standing/walking for up to two hours; sitting no

more than one hour at a time for up to six hours; frequent balancing, kneeling,

and handling and fingering with his right upper extremity; occasional climbing,

stooping, crouching, crawling, and handling and fingering with his left upper

extremity and occasional bilateral over-the-shoulder reaching; avoiding climbing

ladders, ropes, and scaffolds, avoiding heights, and avoiding walking on rocky or

uneven surfaces; and avoiding exposure to extreme heat and cold temperatures.

Aple. Supp. App. at 45.

But Dr. Michener opined that Mr. Lawton could not use his left extremity

at all for lifting; that he should not push or pull with his left hand; and that he

cannot handle, finger, or feel with his left hand. Id. at 171. Her conclusions were

supported in the medical record and are consistent with Dr. Reishus’s previous

diagnosis of carpal tunnel syndrome (which was accepted by the ALJ), with

Dr. Michener’s own objective medical findings, and with the 2001 cervical x-ray

and report. Dr. Michener’s conclusions about Mr. Lawton’s left extremity are

also consistent with treating physician Dr. Rainey’s confirmation of disability

after noting that Mr. Lawton had pain radiating from his neck down his arms. But

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the ALJ did not explain why he apparently rejected Dr. Michener’s opinion about

Mr. Lawton’s arm and hand limitations while apparently accepting her opinion

about his ability to perform light work. See Hardman v. Barnhart , 362 F.3d 676,

681 (10th Cir. 2004) (“It is improper for the ALJ to pick and choose among

medical reports, using portions of evidence favorable to his position while

ignoring other evidence. ”). The ALJ was not free to substitute his own opinion

for Dr. Michener’s. See Hamlin, 365 F.3d at 1221. No medical evidence

supported the ALJ’s conclusion that Mr. Lawton could push and pull and

occasionally use his left hand for fingering and handling for an eight-hour work

day. Cf. Thompson , 987 F.2d at 1491 (“The absence of evidence is not

evidence.”).

Further, Dr. Reishus opined that Mr. Lawton cannot sit for long periods,

see Aple. Supp. App. at 165, which is consistent with the MRI reports showing

bulging disks at three lumbar levels and the objective evidence of radiculopathy,

but the ALJ did not state why he apparently rejected that opinion. Only

Dr. Michener’s statements made before the MRIs were taken support a finding

that Mr. Lawton can sit for six out of eight hours, and the ALJ erred by failing to

resolve the disparity between the treating and consulting physicians’ opinions.

See Goatcher , 52 F.3d at 290. The ALJ’s RFC conclusions are not supported by

substantial evidence; he did not specify the evidence he relied upon to support his

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conclusions; and he did not explain why he did not accept the limitations reported

by Mr. Lawton and his physicians. The Commissioner’s decision must therefore

be reversed.

C. Credibility determination.

The ALJ made two statements concerning Mr. Lawton’s pain that are not

supported in the record. First, he stated that Mr. Lawton “testified that he has

severe and excruciating pain in his back all the time.” Aple. Supp. App. at 42.

But Mr. Lawton testified that the severity of his back pain depends upon his level

of activity. Id. at 272-73. He testified that, if he spends much of the time in a

recliner on a vibrating heating pad or lying down, the pain is only a level of 1-2;

if he tries to work, lift, sit upright or stand, it gets worse and becomes disabling.

Id. at 273-76, 119-20. If the ALJ believed that Mr. Lawton exaggerated his pain

because the ALJ did not correctly remember the testimony, his credibility analysis

is flawed.

Second, the ALJ stated that the earliest medical evidence of Mr. Lawton’s

pain is March 1999. Id. at 43. But the medical record contains an ER report

dated December 24, 1998 in which the attending doctor diagnosed

“musculoskeletal back pain,” noted a history of sciatica, and prescribed pain

relievers. Id. at 224. The x-rays also show an old compression fracture at T12-

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L1. Id. at 217, 231. And Dr. Reishus, who had apparently treated Mr. Lawton in

the early 1990s, diagnosed “chronic low back pain” in his report. Id. at 165.

We note that the medical evidence supports Mr. Lawton’s complaints of

severe pain that moderates if he limits his activity, and the record shows that he

has continuously pursued relief for pain, without any doctor disbelieving his

claims of pain or questioning his credibility. See SSR 96-7p, 1996 WL 374186 at

*7 (“In general, a longitudinal medical record demonstrating an individual’s

attempts to seek medical treatment for pain or other symptoms and to follow that

treatment once it is prescribed lends support to an individual’s allegations of

intense or persistent pain or other symptoms for the purposes of judging the

credibility of the individual’s statements.”); cf. Aple. Supp. App. at 169

(Dr. Michener’s report stating that “[h]e appears to put forth good effort”). The

ALJ concluded that “an objective basis exists to support the symptoms alleged by

[Mr. Lawton] and to this extent the undersigned finds him credible.” Id. at 44.

And the ALJ believed that Mr. Lawton’s pain and limitations are so severe that he

can not perform his past relevant work. But the ALJ generally rejected

Mr. Lawton’s complaints of disabling pain, stating that “[his] testimony is

inconsistent and conflicts with other evidence of record, including his own

previous statements to others.” Id. Again, however, the ALJ did not state what

those alleged inconsistencies or conflicts are, and we will not speculate or attempt

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to supply an analysis for the Commissioner. See Robinson v. Barnhart , 366 F.3d

1078, 1084-85 (10th Cir. 2004) (holding that “ALJ’s decision should have been

evaluated based solely on the reasons stated in the [ALJ’s] decision.”); Williams ,

844 F.2d at 755 (holding that, in the absence of clearly articulated reasoning

discussing claimant’s credibility, the record did not support a finding that

claimant was not credible).

The ALJ also did not discuss why he did not believe Mr. Lawton’s

statements that he could only occasionally do prolonged (defined as up to five

minutes) flexing, extension, and turning of his head and neck, which were

consistent with the cervical x-rays, Dr. Spann’s report, and Dr. Michener’s

findings of a decreased range of cervical motion. And the ALJ did not discuss

why he did not believe Mr. Lawton’s testimony about (1) not being able to pick

up and control objects because of his carpal tunnel syndrome and torn left wrist

muscles, especially with his left hand, and (2) not having the strength to do

repeated arm/hand operations for more than half an hour or an hour. Again, these

complaints are consistent with objective findings in the medical record, with

Dr. Michener’s limitations, and with the ALJ’s finding that Mr. Lawton has the

severe limitation of carpal tunnel syndrome.

“Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

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evidence. However, [f]indings as to credibility should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise

of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation and

citation omitted). The ALJ must “explain why the specific evidence relevant to

each factor led him to conclude claimant’s subjective complaints were not

credible.” Id. In the case before us, the ALJ’s decision “fails to inform us in a

meaningful, reviewable way of the specific evidence the ALJ considered in

determining that claimant’s complaints were not credible,” so his decision must

be reversed on this additional basis. Hardman , 362 F.3d at 679.

D. Appeals Council’s refusal to re-evaluate decision in light of new

medical evidence.

The 2001 cervical x-ray evidence is relevant to an evaluation of whether

objective medical evidence supports Mr. Lawton’s allegations of pain and

limitation in flexing, extending, and turning his head, and to Dr. Michener’s

limitations on the use of the left arm. We cannot agree with the Appeals

Council’s statement that the additional medical evidence does not provide a basis

for changing the ALJ’s decision, since it is related to the period of disability in

question. See Hardman, 362 F.3d at 681 (reversing decision and remanding for

further proceedings where it did not appear the Appeals Council properly

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evaluated the entire record, including material and relevant new evidence); Threet

v. Barnhart, 353 F.3d 1185, 1191-92 (10th Cir. 2003) (same).

III. Conclusion

The Commissioner failed to meet her burden of demonstrating that

Mr. Lawton retains the RFC to perform jobs that exist in significant numbers in

the national economy. Indeed, the VE testified that no jobs are available to a

person with the limitations found by Mr. Lawton’s treating and consulting

physicians. In addition, the Commissioner did not give legitimate reasons for

rejecting Dr. Rainey’s opinion that Mr. Lawton is disabled, Dr. Reishus’s opinion

that he cannot sit for long periods, and Dr. Michener’s opinion that he can not use

his left arm and hand for work activities. He also did not give specific reasons

for finding Mr. Lawton to be only partially credible. On remand, the ALJ must

consider the 2001 cervical MRI and Dr. Spann’s reports in evaluating both the

doctors’ opinions and Mr. Lawton’s credibility about not being able to repeatedly

or fully turn, bend, and extend his head and neck.

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

REMANDED with instructions to remand the case to the Commissioner for

further proceedings in accordance with this decision.

Entered for the Court

Clarence A. Brimmer
District Judge

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