* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

*** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

.

UNITED STATES COURT OF APPEALS Filed 1/10/97 FOR THE TENTH CIRCUIT

VERL D. HAVICE,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5074 (D.C. No. CV-94-953-W) (N.D. Okla.)

ORDER AND JUDGMENT **

Before EBEL and HENRY, Circuit Judges, and DOWNES, *** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Verl D. Havice appeals the district court’ s affirmance of the decision by the Secretary of Health and Human Servi ces finding that claimant did not become totally disabled until October 5, 1992, five days after his insured status expired. Because the Secretary’s decision that claimant could perform a significant number of jobs before October 5, 1992, is not supported by substantial evidence, we reverse and remand for an immediate award of benefits. Claimant was born in January 1939, and attended sch ool through the eighth grade, taking several years of evening classes ther eafter. He did not graduate high school or obtain a GED. After military servic e, claimant worked full-time as an automobile assembler until 1969, then as a truckmechanic, driver, welder, and painter for a crane manufacturing company until 198 2. He worked as a diesel mechanic through 1984, and, after a year and a half interruption, worked for a temporary employment agency at a bottling plant and as a delivery driver. Claimant stopped working due to his physical condit ion in April, 1988, and has not worked since.-3-

In 1965, claimant broke his right patella in a car accident. His knee was repaired by open reduction and internal fixation, u sing two wires to maintain the reduction. Several months later, claimant fell and refractured the patella. In 1977, claimant was injured in an explosion at work, sustaining second and third degree burns to both legs which required skin graft s. In 1978, he was diagnosed with diabetes mellitus, controlled with insulin inj ections and limited diet. He was also diagnosed with hypertension, controlled with m edication. In 1979, claimant was examined by orthopedic surgeon Sisler for intermittent episodes of low back pain, stemming from the 1977 explosion. Dr. Sislerdiagnosed claimant with chronic strain, noting that the x-rays showed latent disc manifestations. In July 1985, claimant was diagnosed with right-sid ed Bell’s Palsy, which included paralysis of the face, tinnitus of the rig ht ear, reduced balance and right arm weakness. Most of these symptoms resolved afte r several months, except for persistent tinnitus in the right ear. In December 1985, claimant was diagnosed with left-sided Bell’s Palsy, which again took seve ral months to resolve. In December 1987, claimant slipped and fell on the ice, injuring his right knee and elbow. He was treated for several months by Dr. McCreight for right knee pain, occasional give-way weakness, and “poppi ng” with ambulation. Based on x-rays, Dr. McCreight diagnosed moderate osteoarthritis of the right knee, and referred claimant to orthopedic surgeon Sisler for further evaluation.-4-

In April 1988, Dr. Sisler’s examination revealed ri ght knee swelling, increased temperature, reduced range of motion, cre pitation, tenderness, and bony irregularity of the patella. R. II-A at 284. Upon reviewing claimant’s January 1988 x-rays, Dr. Sisler noted “degenerative changes . . . along the medial femoral and tibial condyles with slight narrowing of the me dial joint space . . . [and] slight irregularity on the articulating surface of the patella with a small osteophyte at the inferior pole.” Id. The wires from claimant’s earlier patellar surgery appeared intact. In April 1988, claimant’s x-rays showed osteophytes on the adjacent sides of the medial fem oral and tibial condyle and sharpening of the tibial spines . . . [ and] changes on the lateral tibial plateau []. On the tangential view there are spurs along the medial condyle of the femur at the patellofemor al joint. The AP view shows the larger wire appears to have broken i n the interval between the film taken on 1/18/88 . . . and the fil m taken today. Id. Based on claimant’s reports of catching and givin g way of the knee, Dr. Sisler opined that there was motion about the end of the w ire causing it to break. In May 1988, Dr. Sisler performed arthroscopic surgeryon claimant’s knee, removing the broken wire and debriding several cart ilagenous surfaces. The surgeon noted degenerative arthritic changes in the knee, including moderately advanced chrondomalacia (deterioration of weight-be aring cartilage) involving the patella and the medial and lateral femoral condyles, and thickening of the synovium in the patellar pouch. Id. at 270, 279, 283.-5-

During the months after surgery, Dr. Sisler noted s welling, limited range of motion, moderate crepitation, continued instability , and giving way in the right knee. On July 22, 1988, the surgeon released claim ant to perform “work of [a] moderate nature which would include being on his fe et 50 percent of the time but minimal climbing and no squatting or kneeling.” Id

. at 279. In November 1988, claimant returned to Dr. Sisler w ith complaints of continued knee instability. A series of six x-ray views showed: moderately advanced arthritic changes in the joint noted particularly along the medial sides of the femur and tibia. Whe n the films are compared to the films of 4/14/88, there appears to be some progression of the size of the osteophytes particul arly on the medial side. Id. at 278. Dr. Sisler opined that claimant’s symptom s were those of traumatic arthritis, and that, although he still walked well, the symptoms were slowly progressing. The surgeon opined that claimant was unable to work at that time. In April 1989, claimant was examined by consulting physician Sullivan, who found deformity of the right knee with detectib le osteophytes, reduced range of motion, and mild subpatellar crepitation; bilate ral diffuse tenderness of the cervical spine, trapezius, and lumbar sacral spine; and distinctly decreased sensation in the feet bilaterally. Dr. Sullivan di agnosed traumatic arthritis to the right knee, mild osteoarthritis in the cervical and lumbosacral spines and in-6-

scattered joints, very mild peripheral neuropathy o f the feet due to diabetes, and the ongoing conditions of diabetes and hypertension . He opined that [Claimant] has chronic problems with traumatic arth ritis of the right knee which prevent him from pursuing work that invo lves a great deal of physical labor or being on his feet. He ca nnot . . . squat or climb stairs or ladders. He is none-the-less, able to walk perfectly adequately. He is thus fully capable of performing sedentary labor where he is sitting, most of the time. . . . He sho uld be considered disabled for any work involving hard, physical labo r, or work that requires standing for many hours at a time. Id. at 321. Dr. Sisler again examined claimant in late August 1 989, noting both physical and x-ray evidence of deterioration. The surgeon observed that claimant had difficulty arising from a seated position, had a considerable limp when bearing weight on the right leg, had considerable d ifficulty squatting and ascending a step, and had limited range of motion, audible and palpable crepitation, and tenderness in the right knee. The x-rays showed moderate osteophytes involving the medial and lateral joint compartments, and large osteophytes on the superior and inferior poles of the patella. Dr. Sisler concluded that “[t]he films are interpreted as showing panart hrosis of the right knee joint,” and that claimant was suffering from “[d]egenerativ e/traumatic arthritis involving all three compartments of the right knee.” Id. at 336-37. He opined that [Claimant] has advanced traumatic arthritis of the right knee. . . . With time and continued use, the traumatic arthriti s has progressed to the point he is no longer able to function. Sittin g for long periods of-7-

time while driving is very painful. Standing, walk ing and stair climbing are also very painful. Furthermore, there are medical problems of hypertension and diabetes which add add itional restraints to his well being, stamina and functiona l capacity. Id. at 337. In November 1989, claimant was examined by consulti ng physician McKenzie, who observed that claimant walked stiff-l egged and favored the right knee, that the knee was swollen and significantly t ender with a reduced range of motion and loss of strength, and that claimant’s ne ck had a limited range of motion with paraspinous muscle tenderness. Dr. Mc Kenzie’s review of claimant’s x-rays revealed “severe arthritis of the right knee, [and] irregularity of the right patella with osteophyte at the inferior p ole.” Id. at 366. Dr. McKenzie concluded that claimant had been totally disabled f rom April to July, 1988, and from August 1989 to the date of the current exam, a nd that he had a total permanent impairment to the right lower extremity o f 53.5%, and a 10% impairment based on claimant’s neck. In August 1990, Dr. Sisler again examined claimant and took x-rays of his cervical spine and right knee. The surgeon found c laimant’s cervical spine range of motion to be about fifty percent of normal, and noted obvious swelling and joint effusion in claimant’s knee, ambulation with a distinct limp, reduced range of motion, inability to squat, palpable osteophytes and tenderness, and audible and palpable crepitation during knee motion. Sisle r reaffirmed his diagnosis of-8-

traumatic arthritis, and opined that claimant suffe red from chronic strain of the cervical spine. R. II-B at 412-13. Claimant was also treated from July 1985 to March 1 993 by the Veterans Administration. VA medical records indicate ongoin g treatment for diabetes and hypertension, as well as treatment for Bell’s Palsy , headaches, cervical pain, low back pain, dizziness, neuropathy, and various infec tions. In March 1989, claimant’s records began noting swelling of the low er extremities, and by September 1989, he was being advised to wear support socks and to elevate his legs. R. II-A at 353, 356. In January, 1989, dege nerative changes of the spine were noted. R. II-B at 505. Although such changes were not noted in his December 1989 x-rays, x-rays in March 1991 showed “ [d]egenerative change with L3-L4 disk space narrowing and prominent hyperstosi s anterior superior margin right side of L3 vertebral body.” Id. at 503-04. In November 1991, and again in January 1992, the VAobserved that claimant limped and had bilateral leg pain that wor sened when walking. Id. at 494-95. In May 1992, claimant developed cellulitis of the left leg, with redness, marked swelling, and impaired skin integrity. Afte r hospitalization, claimant continued to receive treatment for these symptoms t hrough October 1992, with frequent instructions to elevate his legs. Thereaf ter, claimant’s records show swelling and pain in both legs. In August 1992, cl aimant was seen for right knee-9-

pain, and x-rays were taken. The VA staff radiolog ist noted “moderately severe degenerative changes” in the femur and tibia, and p articularly in the medial tibial plateau. Id. at 472. Comparing the 1992 x-rays to one taken in 1986, the radiologist concluded that claimant’s degenerative changes were “fairly stable since 2-20-86.” Id. In October 1992, the VA discovered that claimant’ s neuropathy had reached his bladder, requiring frequ ent self-catheterization. In December 1992, the VA diagnosed a cochlear lesion, explaining claimant’s intermittent complaints of dizziness and tinnitus. In May 1993, claimant was examined by consulting physician Dandridge, who noted that he walked with an unsteady gait and a slight limp on the right, had restricted range of motion in the cervical spine, m oderate swelling and pitting edema in both legs, restricted motion in both knees , especially the right, restricted motion of the right hip, hypesthesia over both arms and legs, and limited ability to squat. Dr. Dandridge opined that claimant could on ly stand and walk one hour per day, could sit for six hours, could lift and ca rry 11-20 pounds occasionally, could bend and reach occasionally, but could not us e the right leg for pushing and pulling controls, and could not squat, crawl, or cl imb. Id. at 534-39. Claimant filed for disability insurance benefits an d supplemental security income (SSI) in February 1989, alleging an inability to work after April 1988. In May 1990, after two administrative hearings, an adm inistrative law judge (ALJ)-10-

issued a decision finding claimant capable of perfo rming light work. In December 1991, the district court remanded the case to the Secretary, holding that the record did not support the ALJ’s conclusion. Almost two years later, in October 1993, a suppleme ntal hearing was held on claimant’s application. After the hearing, at w hich a vocational expert testified, the ALJ again found claimant capable of performing light work, including the jobs of light tool maintenance worker , light template maker, and production checker/tester. The ALJ found that clai mant retained this ability until October 5, 1992, when his bladder condition rendere d him disabled. Because claimant’s insured status lapsed on September 30, 1 992, the ALJ found that claimant was not eligible for disability insurance benefits, but that he might be eligible for SSI payments after that date. The App eals Council denied review, making this the final decision of the Secretary. T he district court affirmed, finding that although the record did not support a conclusion that claimant could do light work, there was evidence that he remained capable of performing sedentary work such as production line assembly andstock and inventory work. This appeal followed. We review the Secretary’s decision to determine whe ther her factual findings are supported by substantial evidence and whether correct legal standards were applied. Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027,-11-

1028 (10th Cir. 1994). Substantial evidence is “‘s uch relevant evidence as a reasonable mind might accept as adequate to supporta conclusion.’” Richardson v. Perales , 402 U.S. 389, 401 (1971)(quoting Consolidated Edi son Co. v. NLRB , 305 U.S. 197, 229 (1938)). We may “neither reweighthe evidence nor substitute our judgment” for that of the Secretary. Casias v. Secretary of Health & Human
Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Claimant argues that substantial evidence does not support the Secretary’s decision that he could do light work before October5, 1992, or the district court’s conclusion that he could perform skilled sedentary work before that date, and that he is entitled to disability benefits as a matter o f law. We agree.

Claimant’s Ability to Perform Light Work
Light work generally requires “standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time.” Soc. Sec. Rul. 83-10. To find that claimant retained the ability to perform light work, the ALJ rejected the opinions of both Dr. Sisler and Dr. Sullivan that claimant could not stand and walk on a prolonged basis. The ALJ found that these opinions were inconsistentwith the doctors’ findings that claimant walked well, accepting instead the VAradiologist’s statement that claimant’s knee condition had remained stable since February 1986. Neither of-12-

these reasons provided a legitimate basis for rejec ting the opinions of Dr. Sisler or Dr. Sullivan. First, the observation that claimant still walked w ell was not inconsistent with the ultimate opinion that claimant could not p erform work requiring prolonged standing and walking. Claimant’s abilityto walk is a separate question from his ability to perform such activity on a sust ained basis. See, e.g. , Ragland v. Shalala , 992 F.2d 1056, 1059 (10th Cir. 1993)(holding “[t] he fact that plaintiff may intermit a tiring or painful upright task with periods of seated rest . . . does not entail any particular answer to the separate qu estion whether she can remain seated for a prolonged period of time”). Further, by August 1989, every medical source observed that claimant experienced difficulty walking. See, e.g. , R. IIA at 336 (8/22/89 - considerable limp); 350 (12/22/89 - acts uncomfortable when walk ing); 365 (11/14/89 - stifflegged gait favoring right knee); R. IIB at 413 (8/ 28/90 - ambulates with distinct limp); 494-95 (11/29/91 and 1/31/92 - noting claimant’s limp); 534 (5/28/93 - unsteady gait with a slight limp). Finally, the AL J mischaracterized Dr. Sisler’s office notes of April 1988, by stating that he foun d claimant’s knee to be asymptomatic. Dr. Sisler actually reported that cl aimant’s knee had been asymptomatic before he fell in December 1987, but t hat he became symptomatic after injuring the knee in the fall. The ALJ erred , therefore, in finding that the-13-

opinions of Dr. Sisler and Dr. Sullivan were intern ally inconsistent with their medical findings regarding claimant’s knee. It was also improper to reject Dr. Sisler’s finding s and opinions based on the VA radiologist’s statement that claimant’s knee had remained stable since February 1986. Dr. Sisler was claimant’s treating orthopedist. A treating physician's opinion about the nature and severity o f a claimant's impairment will be given controlling weight if it is well-supportedby clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. 20 C.F.R. 404.1527(d)(2); Castellano , 26 F.3d at 1029. If the treating physician’s opinion is inconsistent with o ther medical evidence, the ALJ must “examine the other physicians’ reports to see if they ‘outweigh[ ]’ the treating physician's report, not the other way arou nd.” Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 290 (10th 1995)(quotations omitted). In addition, the ALJ must consider the f ollowing specific factors to determine what weight to give a medical opinion: (1) the length of the treatment relationship and th e frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of ex amination or testing performed; (3) the degree to which the phy sician's opinion is supported by relevant evidence; (4) consistency be tween 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 ren dered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.-14-

Id. ; 20 C.F.R. § 404.1527(d)(2)-(6). Here, Dr. Sisler treated claimant’s knee comprehens ively for two and a half years. He physically examined the knee on eleven o ccasions, took x-rays on five occasions, compared a total of twenty-two views of claimant’s knee, and personally observed the degenerative changes during arthroscopic surgery. His opinion is consistent with that of every other phys ician who examined claimant, and is consistent with the signs and symptoms of de terioration noted over the years. In addition, he is a specialist in the areain which he rendered his opinion. In contrast, the VA records do not show treatment o f claimant’s knee before August 1992, and do not reflect that x-rays were taken in February 1986. The radiologist who opined that claimant’s knee rem ained stable during these years never physically examined claimant. Even ass uming the existence of the 1986 x-rays, there is no evidence that the radiolog ist, who only looked at two views of claimant’s knee in 1992, was looking at th e same areas as those identified by Dr. Sisler, who took as many as six x -ray views at a time. In addition, the radiologist’s opinion is inconsistentwith all the other medical evidence. On this record, it is impossible to conc lude that the radiologist’s opinion outweighs that of Dr. Sisler, and the ALJ e rred in rejecting the treating physician’s opinion. The record overwhelmingly sup ports Dr. Sisler’s opinion that claimant was incapable of prolonged standing a nd walking after July 22,-15-

1988. The Secretary’s conclusion that claimant cou ld perform light work, therefore, is unsupported by substantial evidence.

Claimant’s Ability to Perform Sedentary Work

There is no doubt that when claimant was released f or work on July 22, 1988, he remained capable of performing sedentary w ork, and was therefore not disabled. On January 26, 1989, however, plaintiff turned fifty years old, and moved into the category of persons “closely approac hing advanced age,” according to the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P. App. 2 (the grids). The grids are a collection of administratively noticed rules directing a conclusion of “disabled” or “not disabl ed,” based on a claimant’s age, education, residual functional capacity, and transf erable skills. After January 26, 1989, given claimant’s age, limited education, and capacity to do sedentary work, the grids directed a conclusion of “disabled” if he lacked transferable skills, but “not disabled” if he had such transferable skills. Id. , Rules 201.10, 201.11. The district court concluded, based on the vocation al expert’s testimony, that claimant was not disabled because he had skill s which would transfer to production assembly work and stock and inventory wo rk. R. I at 22. It is true that, at the hearing, the vocational expert testifi ed that claimant had such transferable skills. On cross-examination, however , she retracted both these-16-

statements, after being informed that claimant’s pa st assembly work occurred more than fifteen years earlier, and upon noting th at claimant lacked training in the computer technologies currently used in stock and inventory work. See R. II-B at 626-27, 633-34. There is no substantial ev idence, therefore, upon which to base a finding that claimant had transferable sk ills. In the absence of such skills, Rule 201.10 of the grids directs a conclusi on that claimant became disabled when he turned fifty years old. Claimant filed his application for disability benef its almost eight years ago. After three hearings, the Secretary still has not m et her burden of showing that claimant retained the ability to perform a signific ant number of jobs in the economy after January 26, 1989. “The Secretary is not entitled to adjudicate a case ‘ad infinitum until [she] correctly applies th e proper legal standard and gathers evidence to support [her] conclusion.’” Si sco v. United States Dep’t of Health & Human Servs , 10 F.3d 739, 746 (10th Cir. 1993)(quoting Thaete v. Shalala , 826 F. Supp. 1250, 1252 (D. Colo. 1993)). The c ase is remanded, therefore, for an immediate award of disability ben efits to claimant, commencing on January 26, 1989. The Social Security Administr ation is also directed to determine whether claimant met the nondisability cr iteria for an award of SSI payments after that date, and is to do so with all deliberate speed.-17-

The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and the case is REMANDED f or an immediate award of benefits and for such other proceedings as may be necessary.

Entered for the Court

William F. Downes District Judge