Andersen v. Astrue

FILED
United States Court of Appeals
Tenth Circuit

April 3, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

TERRY D. ANDERSEN,

Plaintiff-Appellant,

v. No. 05-4305
(D.C. No. 2:04-CV-960-DAK)
MICHAEL J. ASTRUE, Commissioner (D. Utah)
of Social Security, *

Defendant-Appellee.

ORDER AND JUDGMENT **

Before MURPHY, HARTZ, and HOLMES, Circuit Judges.

Claimant Terry D. Andersen appeals from the district court’s order

affirming the decision of the Social Security Commissioner to deny his

application for disability insurance benefits (“DIB”). Mr. Andersen argues on

appeal that the administrative law judge (“ALJ”) failed to properly evaluate the

opinions of his treating physicians, posed inadequate hypothetical questions to the

*
In accordance with Fed. R. App. P. 43(c)(2), Michael J. Astrue is
substituted for Jo Anne B. Barnhart as defendant in this appeal.
**
This Order and Judgment is not binding precedent, except under the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.
vocational expert, and erred in finding Mr. Andersen not totally credible. We

exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and conclude

that the ALJ erred by failing to follow the proper procedures for considering the

opinions of Mr. Andersen’s treating physicians. Accordingly, we REVERSE and

REMAND for further proceedings.

I. BACKGROUND

Mr. Andersen protectively filed for DIB under Title II of the Social

Security Act in August of 2000. He claimed he had been unable to work since

May 4, 1993, primarily due to fatigue and shortness of breath following three

open heart surgeries and related impairments that include aortic valve disease,

several mini-strokes, and blindness in his left eye. After his application was

denied both initially and upon reconsideration, he requested and received a

hearing before an ALJ.

The hearing focused on the evidence surrounding Mr. Andersen’s abilities

on December 31, 1998, which was the date on which Mr. Andersen’s insurance

for disability benefits expired, in determining Mr. Andersen’s residual functional

capacity (“RFC”) for purposes of steps four and five of the now-familiar

sequential evaluation process. See, e.g., Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988). Following the hearing, the ALJ agreed that Mr. Andersen had

severe impairments due to his history of mitral valve disease and rheumatic heart

disease, his chronic obstructive pulmonary disease, and left eye blindness.

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However, the ALJ concluded that Mr. Andersen could perform a significant range

of light work, and because there were jobs in the national economy that he could

perform, he was not under a disability as defined in the Social Security Act.

In reaching this conclusion, the ALJ embraced the opinion of the non-

examining, agency physician, who discounted “several disability forms” from

“the remote past” that indicated Mr. Andersen could perform no work or was

limited to sedentary work. Aplt. App. at 18. The agency physician also concluded

that these forms “were not substantiated by the objective evidence and were

entitled to little weight.” Id. The agency physician found Mr. Andersen to have

an RFC for light exertional work based solely on a review of his medical records.

The ALJ appeared to concur with all of these opinions of the agency physician.

The ALJ also reviewed reports from Mr. Andersen’s treating physicians,

although not accepting the conclusions of these physicians as the ALJ had done

with the agency physician’s opinion. The ALJ observed that the medical records

from Mr. Andersen’s treating physician for 1998 were “very vague, sparse, and

not suggestive of disability.” Aplt. App. at 20. The ALJ also described—and

apparently rejected—two treating physician opinions from June 1999 and

September 2000. In June 1999, Mr. Andersen’s primary care physician opined

that Mr. Andersen was disabled. However, the ALJ determined “there are no

clinical reports to show this,” noting as well that the form showed only mild or

moderate symptoms. Id. In September 2000, Mr. Andersen’s cardiologist

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completed a form indicating severe restrictions with respect to how much Mr.

Andersen could stand or walk in the workplace, but the ALJ described the

assessment as “very confusing” and “inconsistent.” Id.

In light of these assessments, the ALJ concluded, at the fifth step of the

applicable sequential process, that Mr. Andersen had an RFC for a limited range

of light work and was capable of performing jobs that are available in significant

numbers in the national economy. 1 The ALJ cited “the sparse and mild medical

reports” and Mr. Andersen’s lack of specific memory of his capabilities in 1998

during his testimony in 2002 in reaching the conclusion that Mr. Andersen had

failed to provide proof of total disability. Id.

The Appeals Council denied Mr. Andersen’s request for review, rendering

the ALJ’s decision the final decision of the Commissioner. Bowman v. Astrue,

511 F.3d 1270, 1272 (10th Cir. 2008). Mr. Andersen then filed this action in

federal court, and the district court affirmed the ALJ’s decision. In part, the

district court held that the ALJ sufficiently discussed the opinions of Mr.

Andersen’s treating physicians and provided specific, legitimate reasons for

rejecting them. The district court also concluded that there was no duty to

recontact Mr. Andersen’s cardiologist about inconsistencies in his opinion

1
In coming to this conclusion, the ALJ relied on the testimony of a
vocational expert who indicated that some of the jobs that might be available to
Mr. Andersen included an office helper, information clerk, parking lot attendant,
and housesitter. The vocational expert’s testimony was elicited through
hypothetical questions posed by the ALJ.

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because the record as a whole was adequate for a decision. The district court

found sufficient indication that the ALJ reviewed the numerous echocardiogram

and heart catheterization results, noting both that the ALJ appeared to rely on

these results at step two in the applicable process and that the ALJ found that Mr.

Andersen had severe impairments. This appeal followed.

II. DISCUSSION

In our review of the ALJ’s decision, we must determine if the ALJ has

“applied the correct legal standards” and also if the ALJ’s “factual findings are

supported by substantial evidence in the record viewed as a whole.” Frantz v.

Astrue, 509 F.3d 1299, 1300 (10th Cir. 2007) (internal quotation marks omitted).

“The agency’s failure to apply correct legal standards, or show us it has done so,

is [] grounds for reversal.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.

2004).

In reviewing the ALJ’s decision, we may “neither reweigh the evidence nor

substitute our judgment for that of the agency.” Frantz, 509 F.3d at 1300

(internal quotation marks omitted). We must avoid a “post hoc effort to salvage

the ALJ’s decision,” lest we “overstep our institutional role and usurp essential

functions committed in the first instance to the administrative process.” Robinson

v. Barnhart, 366 F.3d 1078, 1084-85 (10th Cir. 2004) (internal quotation marks

omitted). Indeed, we should evaluate an ALJ’s decision “based solely on the

reasons stated in the decision.” Id. at 1084.

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 Accordingly, when an ALJ is considering a treating physician’s opinion,

the ALJ is required to “give good reasons in the notice of determination or

decision for the weight assigned to a treating physician’s opinion.” Watkins v.

Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks and

alteration omitted). These reasons must be specific and legitimate. Byron v.

Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984). We require a level of specificity

that is sufficient “to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the reasons for that

weight.” Watkins, 350 F.3d at 1300 (internal quotation marks omitted). In the

absence of these reasons, we cannot determine if there is relevant evidence that

adequately supports the ALJ’s conclusion or if the ALJ even applied the proper

legal standard to arrive at that conclusion. Clifton v. Chater, 79 F.3d 1007, 1009

(10th Cir. 1996). Thus, where an ALJ has failed to articulate these reasons, we

must remand. See id.; Watkins, 350 F.3d at 1301. “We cannot simply presume

the ALJ applied the correct legal standards,” and “we cannot meaningfully review

the ALJ’s determination absent findings explaining the weight assigned to the

treating physician’s opinion.” Watkins, 350 F.3d at 1301.

On appeal, Mr. Andersen argues that the ALJ erred in three ways: (1)

failing to give his treating physicians’ opinions appropriate evidentiary weight;

(2) posing inadequate hypothetical questions to the vocational expert; and (3)

finding Mr. Andersen’s testimony regarding his limitations not totally credible.

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We conclude that the ALJ erred in failing to properly determine the weight

ultimately assigned to Mr. Andersen’s treating physicians’ opinions. See Watkins,

350 F.3d at 1301. Accordingly, we must remand. See id. Because we remand on

this first issue, we will not reach the remaining issues because they may be

affected by the ALJ’s treatment of the case on remand. See Robinson, 366 F.3d at

1085.

A. Evaluation of Treating Physician Opinions

“Treating source medical opinions are [] entitled to deference,” and must be

either given controlling weight or assigned some lesser weight “using all of the

factors provided in 20 C.F.R. 404.1527 and 416.927.” Social Security Ruling

(“SSR”) 96-2p, 1996 WL 374188, at *4. To ensure that these opinions receive

proper deference, an ALJ reviewing the opinions of treating sources must engage

in a sequential analysis. Watkins, 350 F.3d at 1300.

First, an ALJ must determine whether the opinion deserves controlling

weight. Id. Controlling weight must be given if the opinion is both supported by

medically acceptable clinical and laboratory diagnostic techniques and not

inconsistent with the other substantial evidence in the record. 20 C.F.R. §

404.1527(d)(2). If both of these conditions are met, no other factors need be

considered and the inquiry is at an end. See id.; Watkins, 350 F.3d at 1300.

However, if one or both of these conditions is lacking, an ALJ is not free to

simply disregard the opinion or pick and choose which portions to adopt. Instead,

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the ALJ must proceed to a second determination, where the ALJ must both (1)

weigh the opinion “using all of the factors provided in 20 C.F.R. § 404.1527 and

416.927” and (2) “give good reasons in the notice of determination or decision for

the weight [the ALJ] ultimately assigns the opinion.” Watkins, 350 F.3d at 1300-

01 (internal quotation marks and alteration omitted).

As summarized in Watkins, the regulatory 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
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.

350 F.3d at 1301 (internal quotation marks omitted).

Although the ALJ’s decision need not include an explicit discussion of each

factor, see Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), the record

must reflect that the ALJ considered every factor in the weight calculation. 2 See

2
In Oldham, we stated: “That the ALJ did not explicitly discuss all the
§ 404.1527(d) factors for each of the medical opinions before him does not
prevent this court from according his decision meaningful review.” 509 F.3d at
1258 (emphasis added). In a given case, of course, not all of the regulatory
factors may be relevant to the ALJ’s determination of the weight to assign to the
treating physician’s opinion. See id.; cf. SSR 06-03p, 2006 WL 2329939, at *5
(referring to regulatory factors generally applied in weighing opinion evidence in
the context of providing guidance as to non-medical sources; noting that “[n]ot
every factor for weighing opinion evidence will apply in every case”).
(continued...)

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 2
(...continued)
Furthermore, in some cases, certain key factual circumstances may substantially
shape—if not definitively define the contours of—the lens through which the ALJ
considers the regulatory factors in the weight-assignment process. Indeed, the
regulations appear to contemplate this possibility in that they expressly include
along with the treatment-related and physician-related factors a component for
other “factors brought to the ALJ’s attention which tend to support or contradict
the opinion,” Watkins, 350 F.3d at 1301 (the sixth Watkins factor), and do not
purport to rank the factors in terms of importance. Offering an example, the
regulations note that these other factors may relate to “the extent to which an
acceptable medical source is familiar with the other information” in the
claimant’s record. 20 C.F.R. § 404.1527(d)(6) (emphasis added).

These principles animated our decision in Oldham, where “[t]he credibility
issue was critical to the determination of disability.” 509 F.3d at 1257. Powerful
evidence in the record—including videotapes that “showed her [Ms. Oldham]
engaging in physical activity far beyond the capacity that she had reported to her
various medical providers”—quite reasonably led the ALJ to seriously question
Ms. Oldham’s credibility. Id. Ms. Oldham did “no[t] contest the ALJ’s findings
that her ‘allegations, statements and presentations, including those made to
treating and examining doctors[,] [were] highly unreliable,’ . . . and that her
‘allegations regarding her limitations [were] not totally credible[.]’” Id.
(alterations in the original) (quoting Administrative Record, Vol. I, at 28, 44).
This overarching credibility issue led the ALJ to give “‘very little weight’ to
opinions from various treating physicians regarding her functional capacity,”
because those physicians did not have the benefit of the powerful contrary record
evidence that severely undercut Ms. Oldham’s disability assertions, but instead
had placed significant reliance upon Ms. Oldham’s unreliable statements. Id. at
1258. Coupled with the ALJ’s “citation to contrary, well-supported medical
evidence,” we concluded that the ALJ’s findings “satisfie[d] the requirement that
the ALJ’s decision be ‘sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.’” Id. (quoting Watkins, 350 F.3d at 1300).

In Oldham, on the record “in th[at] case,” id., we could be confident that
the ALJ considered all of the regulatory factors, although the ALJ “did not
explicitly discuss all” of them, id. (emphasis added), because we tacitly
(continued...)

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20 C.F.R. § 404.1527(d)(2) (“[W]e apply the factors listed in paragraphs (d)(2)(i)

and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through

(d)(6) of this section in determining the weight to give the opinion.”); SSR 96-2p,

1996 WL 374188, at *4 (“Treating source medical opinions . . . must be weighed

using all of the factors provided . . . .” (emphasis added)). The decision must

articulate the ALJ’s reasoning such that later reviewers can identify both the

weight that was actually assigned to the opinion and the reasons for that weight.

See SSR 96-2p, 1996 WL 374188, at *5. 3

B. Mr. Andersen’s Treating Source Opinions

2
(...continued)
recognized that the lens through which the ALJ considered the factors was
substantially shaped and severely constricted by the “critical” factor of Ms.
Oldham’s established mendacity. Id. at 1257. Looking through a lens thus
shaped, the ALJ could have reasonably determined that most of the explicit
treatment-related and physician-related regulatory factors (as enumerated in
Watkins, factors 1, 2, and 5) were largely irrelevant and not worthy of discussion,
because the treating physicians offered their opinions based upon Ms. Oldham’s
false premises. And, as for the factors that focused on the opinions’ record
support and congruence with other record evidence (respectively, Watkins factors
3 and 4), the ALJ quite reasonably could have viewed them as unequivocally
supporting the decision to assign “very little weight” to the treating physicians’
opinions. And, as evident by the passage quoted above, the ALJ’s consideration
of these factors was patent in the reasons that the ALJ offered for that weight
assignment. Therefore, our decision in Oldham is entirely consistent with the
proposition that, although the ALJ’s decision need not include an explicit
discussion of each factor, the record must permit us to reach the conclusion that
the ALJ considered all of the factors.
3
This applies at least where the decision is not fully favorable to
claimant. The regulations contemplate a briefer explanation if the decision is
fully favorable and the opinion in question is of marginal importance to that
decision. See SSR 96-2p, 1996 WL 374188, at *5.

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 Mr. Andersen was seen by at least four different physicians, including his

cardiologist, from 1993 to 2000. Over this period, these physicians uniformly

agreed that he was unable to work and provided largely consistent descriptions of

his physical limitations. However, the ALJ paid virtually no attention to these

congruous evaluations by Mr. Andersen’s treating physicians. Although the ALJ

may assign these opinions lesser weight or disregard them, this can only be done

when the ALJ has (1) made a ruling that the opinion is not entitled to controlling

weight and (2) after considering the pertinent factors, provided “good reasons”

for the weight ultimately assigned to the opinion. See Watkins, 350 F.3d at 1300-

01. We conclude that the ALJ’s analysis is insufficient for us to be satisfied that

the ALJ properly followed this process in giving the opinions so little weight. 4

1. Dr. Wren’s and Dr. Woods’s Opinions, 1993 to 1997

The administrative record in this case contains annual assessments of Mr.

Andersen’s condition for the years 1993 through 1997, which were apparently

completed at the request of his private disability insurer. Dr. Michael Wren, an

internist, completed an “attending physician statement” each year from 1993

through 1996, along with cardiovascular medical reports describing the results of

echocardiograms in 1993 and 1996. After 1996, two other physicians in the same

medical group succeeded Dr. Wren as Mr. Andersen’s primary care physician: Dr.

4
Although the ALJ never made a finding regarding whether the
opinions received controlling weight, it is clear that the ALJ did not give any of
the opinions of these four treating physicians controlling weight.

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Daniel Woods, who saw Mr. Andersen on October 27, 1997, and Dr. Charles

Hodges, who cared for Mr. Andersen thereafter. 5

In 1993, Dr. Wren concluded that Mr. Andersen likely could not return to

his former occupation. However, he determined that in a job that required less

vigorous activity, Mr. Andersen could work eight hours per day; walk for three or

four of those hours; and sit, stand, or bend without limitation. One year later, in

1994, Dr. Wren changed his assessment, concluding that Mr. Andersen could only

do sedentary work, that he could work only “perhaps one” hour per day, and that

he could only walk or stand for half an hour during that time. Dr. Wren’s 1995

and 1996 assessments matched his 1994 conclusions. Dr. Wren’s notes for his

1995 assessment state that “APS confirms current limits - shortness of breath with

minimal exertion” and that his last echocardiogram in 1993 “confirms valve

disease.” Aplt. App. at 102. 6

Dr. Daniel Woods saw Mr. Andersen on October 27, 1997, which is

memorialized by both his examination notes and a work assessment contained in

5
Dr. Hodges’s opinion will be addressed separately. See infra Section
II.B.2.
6
The ALJ may not have associated this note with Dr. Wren’s
assessment. By its placement in the record, it appears that the date was
determined to be “6/1/99,” the date of Dr. Hodges’s assessment, which cannot be
correct. Numerous indicia confirm its timing as either 1994 or 1995: (1) Mr.
Andersen, who was born in 1948, is listed as “age 46”; (2) the last test is listed as
taking place in December of 1993, indicating the visit must have occurred before
the June 1996 echocardiogram; and (3) the handwritten date also could be read as
“8/11/95,” the date of the 1995 assessment.

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the administrative record. Dr. Woods concluded that Mr. Andersen could sit for

one hour and walk or stand for half an hour. He also marked Mr. Andersen’s

limitations as “Class 4 - Moderate limitation of functional capacity: incapable of

minimal (sedentary) activity[] (75-100%).” Aplt. App. at 116.

The ALJ largely disregarded the opinions of Dr. Wren and Dr. Woods. 7

Accepting the non-examining agency physician’s view that these opinions “were

not substantiated by the objective evidence and were entitled to little weight,” the

ALJ further added that “[t]here are forms in the record with check off boxes but

there is no rational[e] or little reasoning for the limitations assessed.” Id. at 18.

Additionally, the ALJ concluded that these opinions were temporally distant and

of little utility.

It is apparent that the ALJ concluded that these opinions were not entitled

to controlling weight. Although ordinarily the ALJ should have made explicit

findings to this effect, see Watkins, 350 F.3d at 1300 (noting that “[a] finding at

this stage (as to whether the opinion is either unsupported or inconsistent with

7
We note that the record only provides one instance in which Dr.
Woods examined Mr. Andersen. However, neither the ALJ nor the Commissioner
raised any question about whether Dr. Woods should be deemed a treating
physician. Thus, for purposes of this appeal, we assume that Dr. Woods was one
of Mr. Andersen’s treating physicians, and we will not apply our general principle
that “the opinion of an examining physician who only saw the claimant once is
not entitled to the sort of deferential treatment accorded to a treating physician’s
opinion.” Doyal v. Barnhart, 331 F.3d 758, 763 (10th Cir. 2003). However, we
do not purport to usurp the ALJ’s role to make this determination in the first
instance, nor do we foreclose further consideration of this issue on remand.

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other substantial evidence) is necessary so that we can properly review the ALJ’s

determination on appeal”), we are not troubled by the substance of the ALJ’s

determination. Mr. Andersen’s medical tests do not conclusively show the

alleged limitations and there was contrary evidence in the record. Accordingly,

the ALJ was entitled to give the opinions less than controlling weight. See

Langley v. Barnhart, 373 F.3d 1116, 1120 (10th Cir. 2004).

Our conclusion that the ALJ could properly give the opinions less than

controlling weight does not end our analysis, however. An ALJ is not entitled to

completely reject altogether a treating physician’s opinion, without further

analysis, when the ALJ does not give it controlling weight. See id. Rather, the

treating physician’s opinion is “still entitled to deference and must be weighed

using all of the relevant factors.” Id. (internal quotation marks and alteration

omitted). It is not clear whether the ALJ undertook this distinct responsibility.

Indeed, we are not even certain if the “little weight” the ALJ purported to give

these opinions was actually some minimal consideration or no weight at all.

Regardless, we are not satisfied with the ALJ’s proffered reasons.

Although we may not reweigh the evidence, see Frantz, 509 F.3d at 1300,

we must assure ourselves that the ALJ gave the relevant material due

consideration. See Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d

288, 290 (10th Cir. 1995). As we have explained, the ALJ must provide

sufficient indication of what weight is assigned and “good reasons” for that

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weight. See Watkins, 350 F.3d at 1300-01. Here, the ALJ has failed to offer

“good reasons” for giving these opinions “little weight.” The ALJ has failed to

satisfy us that all of the § 404.1527(d) factors were properly considered and that

the apparent rationale for largely disregarding these opinions is sufficient.

With regard to the ALJ’s apparent rationales, the ALJ’s rejection of these

opinions based on their timing is insufficient because the ALJ narrowly construed

the relevant evidentiary period. To qualify for benefits, Mr. Andersen must be

found to have become disabled before his insured status expired at the end of

1998. See 42 U.S.C. § 423(a)(1)(A). Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any medically determinable

physical [] impairment . . . which has lasted or can be expected to last for a

continuous period of not less than 12 months.” Id. § 423(d)(1)(A). In light of

this criteria, the ALJ should not have treated only the few months surrounding

December 1998 as relevant. Indeed, because Mr. Andersen’s underlying medical

condition was undisputed and permanent, the ALJ could make inferences about

the progression of Mr. Andersen’s impairment, relying on earlier medical

evidence. See SSR 83-20, 1983 WL 31249, at *3 (“The available medical

evidence should be considered in view of the nature of the impairment (i.e., what

medical presumptions can reasonably be made about the course of the condition).

The onset date should be set on the date when it is most reasonable to conclude

from the evidence that the impairment was sufficiently severe to prevent the

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individual from engaging in SGA [substantial gainful activity] . . . for a

continuous period of at least 12 months . . . .”). 8 Therefore, to the extent that the

attending physician statements were discounted for being from the “remote past,”

we find this reason insufficient.

We also find that the ALJ’s apparent failure to consider any factor other

than supportability makes the ALJ’s reasoning insufficient. It is certainly correct

to consider the amount of objective support for the conclusions expressed in

treating physicians opinions and the reasoning the physicians provide. See 20

C.F.R. § 404.1527(d)(3) (noting that the more a medical source is supported by

other findings, the more weight the source is given). In this case, however, we

cannot uphold the ALJ’s decision based solely on supportability. There is no

indication that the ALJ considered any relevant factor under § 404.1527(d) other

than supportability before assigning these opinions so little weight. Although

supportability might prove determinative, that can only be decided after

consideration of the other factors. These include the fact of examination, the

length of the treatment relationship and frequency of examination, and the nature

8
Furthermore, Dr. Woods’s October 1997 opinion cannot be
considered “remote” from December 1998. The ALJ may have relied upon
factual error on this point. The state agency physician read the handwritten date
of this opinion as “1992,” but other indicia on the form confirm that it must have
been later (such as references to treatment in 1993 and a catheterization in 1996).
The record also contains Dr. Woods’s examination notes for the same date in
1997, lending further support to the conclusion that the agency physician misread
the date as being 1992.

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and extent of the treatment relationship. See 20 C.F.R. § 404.1527(d)(1)-(2).

These factors may not uniformly weigh in favor of Dr. Wren’s and Dr. Woods’s

opinions, but they would not be insignificant here. Regardless, they must be

considered. It is true that the ALJ is under no obligation to explicitly discuss each

factor in the decision. See Oldham, 509 F.3d at 1258. However, the ALJ’s

cursory treatment of the physicians’ opinions in this case does not satisfy us that

the ALJ considered all the relevant factors.

Even if we were persuaded that the ALJ had considered these other factors,

the ALJ also applied an incorrect legal standard in assessing supportability. The

ALJ appears to have discounted the opinions of Dr. Wren and Dr. Woods because

they used forms with check off boxes and little reasoning was articulated on those

forms. The Commissioner offers two arguments to support the proposition that

doing so was proper. However, we cannot agree.

The Commissioner first argues for a categorical position: the opinions

cannot be substantial evidence because these forms were completed without

examination findings or treatment notes. Some of these forms do lack such direct

explication. Explanatory material is certainly relevant in deciding the weight a

treating physician’s opinion should receive. See White v. Barnhart, 287 F.3d 903,

907-08 (10th Cir. 2001). However, we are unwilling to categorically reject forms

completed by treating physicians that lack such material. Although the

Commissioner suggests that this categorical rule is required by precedent, we

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cannot agree that our prior cases dictate such an extensive rule.

The Commissioner would broadly apply our statement in Frey v. Bowen,

that “evaluation forms, standing alone, unaccompanied by thorough written

reports or persuasive testimony, are not substantial evidence.” 816 F.2d 508, 515

(10th Cir. 1987). However, this holding is not as broad as the Commissioner

wishes. In Frey, the report “appear[ed] to be based on the most limited sort of

contact and examination” with “no indication of careful study of Frey’s history or

prior examinations.” Id. In contrast with other doctors’ objective tests and

measurements, the report at issue in Frey “consist[ed] solely of boxes checked on

the Secretary’s form to indicate his conclusion of no limitation on right arm use.”

Id. In that context, we observed that “findings of a nontreating physician based

upon limited contact and examination are of suspect reliability.” Id. (emphasis

added).

The Commissioner would have us construe Frey’s holding to include any

report primarily consisting of check boxes. However, to do so here would expand

Frey’s exclusion of check-box forms beyond those completed by nontreating

physicians. No controlling precedent obliges us to take this path. See Carpenter

v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (distinguishing Frey in part

because there we “dealt with a nontreating physician’s checkmarks on the

agency’s RFC form” (emphasis added)); cf. Hamlin, 365 F.3d at 1223 (applying

Frey’s rule to an “agency disability determination which listed a non-treating

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physician’s assessment of [claimant’s] RFC”); Drapeau v. Massanari, 255 F.3d

1211, 1213-14 (10th Cir. 2001) (applying Frey’s rule to a “consultative

physician” and other “nontreating physicians who opined that plaintiff’s

impairments did not meet any listing” without “any supporting explanation

whatsoever for their conclusions”). On the facts of this case, we decline to adopt

such an expansive interpretation of Frey.

“In contrast” to the physician in Frey, Dr. Wren and Dr. Woods actually

examined the patient (i.e., Mr. Andersen) and recorded their clinical

assessments—not on “the agency’s checklist RFC form,” Carpenter, 537 F.3d at

1267—but rather on forms that apparently were designed by Mr. Andersen’s

disability insurer. These forms did not ask for extensive rationales, or provide

significant space for them. Thus, it is not surprising that the two physicians

recorded somewhat limited clinical comments. That they did so, however, does

not provide a sound foundation for the inference—which the ALJ apparently

adopted—that their assessments were of limited reliability, nor does it support the

notion that the results that they reported were based upon something less than “a

thorough physical examination.” Cf. id. (noting that “[i]n contrast” to Frey,

which “dealt with a nontreating physician’s checkmarks on the agency’s RFC

form,” the treating physician at issue “made notes or circled the medical terms for

her findings on her own medical form clearly set up to record the results of a

thorough physical examination; it was not the agency’s checklist RFC form”).

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Furthermore, we note that expanding the Frey rule in this case would be

particularly ill-advised because, in contrast to Frey, there were other materials

that could lend support to the conclusions in the forms. 9 Accordingly, we are not

persuaded by the Commissioner’s first argument.

The Commissioner’s second argument for why these opinions could

properly be rejected relies on the non-examining state agency physicians’ review

of the medical record. 10 Because the agency’s physician reached a conclusion that

was inconsistent with Dr. Wren’s assessments after a review of numerous other

reports in the record, the Commissioner suggests that Dr. Wren’s report could be

discounted. Although the non-examining state agency physician may have

reviewed Dr. Wren’s opinion in the context of other medical evidence and

treatment notes, 11 problematically, it is not clear what weight the ALJ gave to the

9
This supporting material includes: the cardiovascular medical reports
Dr. Wren completed in June 1993 and December 1995, the medical evidence to
which Dr. Wren was privy (including echocardiograms in May 1993, December
1993, June 1996, and July 1996), and Dr. Wren’s and Dr. Woods’s examination
notes. It is not clear whether the ALJ considered this material before rejecting
these opinions.
10
The Commissioner also argues that Dr. Wren’s assessments are
internally inconsistent. However, we are not free to supply reasons not relied
upon by the ALJ. See Robinson, 366 F.3d at 1084. Because the ALJ never
indicated that Dr. Wren’s assessments were internally inconsistent, this argument
must be disregarded.
11
The first agency physician review occurred on November 10, 2000.
Contrary to the treating physicians, this review assessed Mr. Andersen’s
exertional limits at light work: standing, walking, or sitting six hours in a
(continued...)

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agency physician’s assessment. “If an ALJ intends to rely on a nontreating

physician or examiner’s opinion, he must explain the weight he is giving to it.”

Hamlin, 365 F.3d at 1223 (citing 20 C.F.R. § 416.927(f)(2)(ii)). The ALJ did not

do so here. The ALJ’s only remark about the agency physician’s opinion was that

the ALJ “concurs with the DDS physician’s opinion.” Aplt. App. at 18. At

bottom, we conclude that the agency physician’s assessment is not enough to

demonstrate that the ALJ properly discounted Dr. Wren’s opinion. Even if we

were to reach a contrary conclusion, that would not ameliorate the basic problem

addressed above—the failure to consider, or to demonstrate consideration of, the

other factors under § 404.1527(d).

Therefore, we conclude that the ALJ did not apply the correct legal

standards to these treating physicians’ opinions, and further did not provide “good

reasons” for giving such “little weight” to these treating physicians’ opinions.

11
(...continued)
workday; occasional lifting up to twenty pounds; and frequent lifting up to ten
pounds. The medical consultant noted that from alleged onset to expiration of
insurance “claimant had stable valvular heart disease with minimal objective
findings and only sought care for disability form completion.” Aplt. App. at 212.
The consultant disagreed with the “alleged degree of limitations,” stating it was
“not supported” because “[t]he EF, physical exams lacking edema or signs of
failure and so forth indicate better than alleged function.” Id. at 216. After
compiling one page of notes regarding Mr. Andersen’s tests and doctor visits over
the years, the consultant dismissed the treating physicians’ opinions on the
grounds that “[t]hese are simply not substantiated by the objective evidence and
are given little weight in this RFC.” Id. at 217. A second review in March 2001
was more ambivalent, noting that “allegations [are] at least partially credible” but
concluding that “[u]nfortunately for this gentleman, we are dealing with a 12/98
DLI” and thus “will have to reaffirm prior decision.” Id. at 220-21.

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 2. Dr. Hodges’s 1999 Assessment

Dr. Charles Hodges apparently became Mr. Andersen’s physician in

December 1997. See Aplt. App. at 120 (noting that Mr. Andersen “is a new

patient to me” on Dec. 11, 1997). He saw Mr. Andersen at least three times in

1998 for sinusitis and an embolus in his left eye in addition to ordering or

reviewing various heart tests. No assessment is in evidence for 1998, but Dr.

Hodges provided one on June 1, 1999. After reviewing an echocardiogram

completed on May 24, 1999, Dr. Hodges concluded that Mr. Andersen could work

zero hours per day and that he would “never” be able to resume work.

The ALJ characterized Dr. Hodges’s assessment as an “attempt[] to

retroactively say he is ‘disabled,’” and concluded that “there are no clinical

reports to show this.” Aplt. App. at 20. The ALJ found information on the June

1999 form to be contrary to Dr. Hodges’s conclusions because the form indicated

that the most recent echocardiogram “shows only mild or moderate symptoms”

and Mr. Andersen “is rated as ‘ambulatory.’” Id.

The ALJ provided no guidance as to what weight was actually assigned to

Dr. Hodges’s opinion. It can perhaps be inferred that the ALJ entirely rejected it.

However, because the ALJ (a) failed to indicate why Dr. Hodges’s opinion did not

receive controlling weight, (b) failed to specify what weight, if any, was given to

Dr. Hodges’s opinion, and (c) failed to explain the reasons for either assigning the

opinion little weight or rejecting it altogether, “we cannot simply presume the

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ALJ applied the correct legal standards.” Robinson, 366 F.3d at 1083 (internal

quotation marks and alteration omitted). We require the ALJ “to make clear to

any subsequent reviewers the weight the adjudicator gave to the treating source’s

medical opinion.” Watkins, 350 F.3d at 1300 (internal quotation marks omitted).

And “we cannot meaningfully review the ALJ’s determination absent findings

explaining the weight assigned to the treating physician’s opinion.” Id. at 1301.

Thus, we must remand. See id.

On the other hand, it is possible to interpret the ALJ’s comments as

offering reasons for giving the opinion less than controlling weight. Indeed, the

ALJ’s statements regarding Dr. Hodges’s opinion could be seen as pertaining to

supportability, one of the six factors that must be considered when assigning a

treating physician’s opinion less than controlling weight. See id. at 1300-01.

However, even if we were to look past the ALJ’s failure to indicate what weight

was given to Dr. Hodges’s opinion, we still would have to remand; we could not

consider the ALJ’s statements to be “legitimate reasons” for discounting the

opinion. See id. at 1301.

The ALJ appears to have given far too little weight to Dr. Hodges’s

interpretation of the medical tests. Dr. Hodges noted the results of Mr.

Andersen’s echocardiogram to be “mild LV [left ventricular] dilatation,” “mild

LVH [left ventricular hypertrophy],” “moderate global hypokinesis,” and

“moderate calcific aortic stenosis.” Aplt. App. at 100. However, these “mild”

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and “moderate” modifiers do not necessarily mean that Mr. Andersen’s overall

condition is “mild” or “moderate.” Nor do they inherently contradict Dr.

Hodges’s assessment. Similarly, the ALJ was not correct in discounting the

opinion because Mr. Andersen was rated “ambulatory.” Rating Mr. Andersen as

“ambulatory” appears only to confirm that he could walk and was not “House

confined,” “Bed confined,” or “Hosp[ital] confined.” See Aplt. App. at 100. It

does not necessarily indicate that an individual with that rating can work.

Furthermore, the ALJ’s perfunctory dismissal of Dr. Hodge’s opinion does

not convince us that the ALJ even considered any of the other relevant factors.

Indeed, although the ALJ parenthetically noted that Dr. Hodges was a treating

physician, this notation does not convince us that the ALJ considered the length

or extent of the treatment relationship or the frequency of examination, which are

two of the relevant factors the ALJ was bound to at least consider. See 20 C.F.R.

§ 404.1527(d)(1)-(2). There is nothing to even suggest that Dr. Hodges’s

treatment history with Mr. Andersen—spanning more than a year, and including

multiple office visits covering the very period that the ALJ considered most

relevant—played any role in the ALJ’s decision.

Likewise we do not view the ALJ’s belief that Dr. Hodges’s opinion was an

“attempt[] to retroactively say he is ‘disabled’” to be a legitimate reason, on these

facts, for discounting the opinion. Aplt. App. at 20. Dr. Hodges’s assessment is

different in kind from situations presenting a “retrospective diagnosis without

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evidence of actual disability” that we have previously deemed insufficient. See

Potter v. Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir.

1990) (per curiam). In Potter, there was not a single medical report that

identified a disability until nearly four years after the expiration of the claimant’s

insured status. Id. at 1347-49. At that time, a treating physician first provided a

diagnosis of a progressive disease and then noted that it was “conceivable” that

the earlier symptoms were part of this later diagnosis. Id. at 1348. In contrast,

Mr. Andersen’s underlying condition had been diagnosed during the period in

which he was insured, and Dr. Hodges’s 1999 form offered no attempt to

retroactively apply his current assessment to Mr. Andersen’s earlier infirmities.

Thus, in addition to being unable to conclude that the ALJ applied the

correct legal standards, we also are unable to conclude that any reasons that the

ALJ offered were “good,” “legitimate” reasons that could support giving Dr.

Hodges’s opinion little weight.

3. Dr. Mackie’s 2000 Assessment

In June 1996, Dr. R. William Mackie became Mr. Andersen’s cardiologist.

Dr. Mackie performed a physical exam and referred Mr. Andersen for an

echocardiogram that month. In 1998, Dr. Mackie worked with Dr. Hodges to

address Mr. Andersen’s left eye embolism that resulted in blindness in that eye.

Dr. Mackie also performed eleven more physical exams over a three-year period

from 1999 through 2001.

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 On September 18, 2000, Dr. Mackie completed a RFC assessment. Some of

the limitations he marked appear to be somewhat inconsistent. He first indicated

that Mr. Andersen could continuously sit for four hours, stand for one hour, and

walk for fifteen minutes. He then indicated that during an eight hour workday,

Mr. Andersen could only sit for two hours and stand or walk for fifteen minutes.

Dr. Mackie marked fatigue and shortness of breath as symptoms that would be

“continually” present, and identified all of these limitations as present since May

1993. His explanatory notes are very brief: “Has Heart failure, severe Aortic

stenosis and Atrial fib[rillation] s/p embolism [in the left] eye.” Aplt. App. at

152.

The ALJ disposed of this opinion very briefly, stating only that it “is very

confusing and does not lend much to assist the undersigned in determining

claimant’s true residual functional capacity” with reference to the contrasting

sit/stand/walk time periods. Id. at 20. It can perhaps be inferred that Dr.

Mackie’s opinion also was discounted for completion “well after the date last

insured,” as the ALJ had noted with regard to Dr. Hodges’s 1999 assessment

earlier in the same paragraph. Id. Again, the ALJ failed to indicate what weight,

if any, was given to Dr. Mackie’s assessment. Furthermore, focusing on the

adequacy of the reasons for giving this assessment less weight, the ALJ neither

provided a sufficient explanation for a subsequent reviewer to understand the

weight actually assigned, nor provided “good reasons” for rejecting the opinion.

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Thus, we must remand. See Watkins, 350 F.3d at 1301.

The ALJ’s cursory discussion of Dr. Mackie’s assessment does not

convince us that the ALJ considered the multiple factors that would support

giving Dr. Mackie’s assessment some weight. First, as a cardiologist, he is a

specialist in this area, and “[w]e generally give more weight to the opinion of a

specialist about medical issues related to his or her area of specialty . . . .” 20

C.F.R. § 404.1527(d)(5). Furthermore, he had examined Mr. Andersen numerous

times, treated Mr. Andersen since 1996, and was familiar with Mr. Andersen’s

cardiological impairments from physical examination and tests. See id. §

404.1527(d)(1)-(2). It is possible that these factors are outweighed by weak

support or contrary evidence in the objective medical data, see id. §

404.1527(d)(3), but the ALJ does not rely on those grounds.

The confusing nature of Dr. Mackie’s responses to some questions on the

form also is not grounds for entirely disregarding his opinion. First, the disparity

between responses has little effect here—whether the broader or narrower sitting

and standing limitations are used, Mr. Andersen would still be limited to

sedentary work. Compare SSR 83-10, 1983 WL 31251, at *6 (explaining that

“the full range of light work requires standing or walking, off and on, for a total

of approximately 6 hours of an 8-hour workday”) with id. at *5 (explaining that at

the sedentary work level, “periods of standing or walking should generally total

no more than about 2 hours of an 8-hour workday”). Second, the differences may

- 27 -
be easily reconcilable upon a closer review of the form Dr. Mackie used. 12 Third,

the ALJ could have contacted Dr. Mackie for clarification, and indeed, the ALJ

may have had a duty to do so. See White, 287 F.3d at 908 (noting that the ALJ

has a duty to “recontact a treating physician when the information the doctor

provides is ‘inadequate to . . . determine whether you [the claimant] are

disabled’” (quoting 20 C.F.R. § 416.912(e)) (alteration in original)). White

clarifies that it is the inadequacy of the “evidence” received from the physician

rather than the inadequacy of the record as a whole, or the rejection of the

physician’s opinion, that gives rise to the duty to recontact a treating physician.

See id. at 905, 908. 13 Arguably, the evidence provided in this instance may not

have been adequate, or alternatively the ALJ may have had sufficient grounds to

reject the opinion. But when, as here, the sole reason provided for disregarding

12
For example, Dr. Mackie indicated that Mr. Andersen could—on a
continuous basis—stand for one hour and walk for fifteen minutes. In the next
question, he indicated that—during an 8-hour competitive workday—Mr.
Andersen would be able to “stand or walk” for fifteen minutes. Aplt. App. at 149.
One reasonable explanation for this difference is that, unlike the first question,
the second question lumps together standing and walking, allowing Dr. Mackie to
select only one time frame for both activities. Thus, Dr. Mackie’s selection of
fifteen minutes arguably would still be consistent with his previous answer that
Mr. Andersen could only walk for fifteen minutes on a continuous basis.
13
The district court erred in relying on White v. Massanari, 271 F.3d
1256, 1260-61 (10th Cir. 2001), in stating that the inadequacy of the record
triggers a duty to recontact. White was altered on precisely this point upon
consideration of the petition for rehearing. See 287 F.3d at 904-05. As the panel
clarified, it is not relevant to the recontact question whether “the record as a
whole is inadequate.” Id. at 905.

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the opinion is its confusing nature, we cannot find that reason adequate absent an

attempt to recontact the physician.

4. Summary

Although the ALJ’s conclusion that Mr. Andersen is capable of a limited

range of light work ultimately may be correct, the ALJ’s failure to indicate the

weight that these treating physicians’ opinions received, which is itself a failure

to apply the correct legal standard, requires us to remand. Furthermore, even if

we were to examine the apparent reasons that the ALJ had for giving these

opinions less than controlling weight, the analysis in the ALJ’s opinion is

insufficient for us to be satisfied that “good reasons” have been provided for

giving these opinions so little weight. Thus, it is clear that we must remand.

III. CONCLUSION

For the foregoing reasons, the district court’s judgment affirming the ALJ’s

decision is REVERSED and the case is REMANDED with instructions to

remand to the Commissioner for additional proceedings in accordance with this

decision.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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05-4305 - Anderson v. Astrue

HARTZ, Circuit Judge, concurring:

Although I am basically in agreement with the analysis of the district court,

I concur in reversal because of the ALJ’s failure to explain the apparent decision

that medical evidence before 1998 was not relevant. See ALJ Op. at 5 (“The

medical record during this relevant time period, the latter part of 1998 . . . .”).