FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2013
Elisabeth A. Shumaker
Clerk of Court
SHANAN E. WILSON,
Plaintiff-Appellant,
v. No. 13-5016
(D.C. No. 4:11-CV-00615-FHM)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of Social Security
Administration,*
Defendant-Appellee.
ORDER AND JUDGMENT**
Before PHILLIPS and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Shanan E. Wilson appeals from a district court order affirming the
Commissioner’s denial of her application for Supplemental Security Income (SSI)
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we
reverse and remand for further proceedings before the administrative law judge
(ALJ).
I.
Ms. Wilson applied for SSI benefits, alleging disability beginning in July
2005. At step two of the sequential evaluation process, see Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009), the ALJ found that she has the severe impairments of
major depressive disorder, generalized anxiety disorder, personality disorder, asthma,
obesity, and degenerative disc disease of the lumbar spine. At step three, he found
that she does not have impairments, alone or in combination, that meet or medically
equal the listings. The ALJ determined her residual function capacity (RFC) as
follows:
[T]he claimant has the residual functional capacity to perform light
work, which includes lifting and/or carrying 20 pounds occasionally and
10 pounds frequently; standing and/or walking (with normal breaks) for
a total of 6 hours in an 8-hour workday; and sitting (with normal breaks)
for a total of 6 hours in an 8-hour workday. She has been diagnosed
with an affective disorder and is limited to simple, unskilled work,
superficial contact with co-workers and supervisors, minimal contact
with the public, but is able to adapt to work situations. The claimant is
afflicted with symptoms from a variety of sources, to include mild to
moderate, chronic pain, that are sufficiently severe as to be noticeable to
her at all times; but, that nonetheless the claimant would be able to
remain attentive and responsive in a work setting, and could carry out
normal work assignments satisfactorily. The claimant takes medication
for relief of her symptoms; however, those medications do not preclude
her from functioning at her residual functional capacity and she would
remain reasonably alert to perform required functions in the work
setting.
-2-
Aplt. App., Vol. 2 at 15 (citation omitted). The ALJ found at step four that
Ms. Wilson could not perform her past relevant work with this RFC. But he
determined at step five that there are jobs in the national economy that she could
perform. Thus, the ALJ found that Ms. Wilson was not disabled. The Appeals
Council denied her request for review. Ms. Wilson filed an appeal in the district
court, and a magistrate judge affirmed the Commissioner’s decision.1
II.
Ms. Wilson raises three issues on appeal: (1) the ALJ failed to perform a
proper determination at step five; (2) the ALJ failed to properly consider the medical
source statements; and (3) the ALJ’s credibility determination is faulty. “We review
the Commissioner’s decision to determine whether the factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). Because we
conclude that the ALJ did not follow the correct legal standards in considering the
opinion of a consultative examiner, we reverse and remand for further proceedings.
A.
“It is the ALJ’s duty to give consideration to all the medical opinions in the
record. He must also discuss the weight he assigns to such opinions.”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citation omitted).
But an ALJ’s error in failing to weigh a medical opinion can be harmless. If the
1
The parties consented to proceed before a magistrate judge in the district court.
-3-
ALJ’s RFC is “generally consistent” with the findings in an opinion, or if the RFC is
“more favorable” to the claimant than the opinion’s findings, then “[t]here is no
reason to believe that a further analysis or weighing of [the] opinion could advance
[the claimant’s] claim of disability.” Id. at 1163. In such a case, the error is
harmless because the claimant cannot show that she was prejudiced by the ALJ’s
failure to give greater weight to the opinion. See id. at 1162–63.
Ms. Wilson does not contend that the ALJ failed to discuss the medical
opinions in the record. She asserts that the ALJ failed to explain what weight he
gave to each of them. The ALJ said the following:
As for the opinion evidence, the record does not contain any
opinions from treating or non-treating physicians indicating that the
claimant is disabled, or has medical or functional limitations greater
than those determined in this decision. Further, the residual functional
capacity conclusions reached by the physicians employed by the State
Disability Determinations Services are consistent with the medical
evidence of record. Although those physicians were non-examining,
and therefore their opinions do not as a general matter deserve as much
weight as those of examining or treating physicians, those opinions do
deserve some weight as they are experts in the Social Security program,
and their opinions were not contradicted.
Aplt. App., Vol. 2 at 20.
Initially, it is clear that the ALJ assigned “some weight” to the opinions of the
non-examining state agency physicians. He did not, however, indicate what weight
he assigned to any other opinion in the record. The Commissioner contends it was
unnecessary for the ALJ to weigh the other opinions because the ALJ stated that “the
record does not contain any opinions from treating or non-treating physicians
-4-
indicating that the claimant is disabled, or has medical or functional limitations
greater than those determined in this decision.” Id. “When the ALJ does not need to
reject or weigh evidence unfavorably in order to determine a claimant’s RFC, the
need for express analysis is weakened.” Keyes-Zachary, 695 F.3d at 1162 (internal
quotation marks omitted). Ms. Wilson disagrees, asserting that the ALJ’s RFC is less
favorable to her than the findings of Dr. Denise LaGrand, a consultative examiner
who performed a psychological assessment of Ms. Wilson.
Dr. LaGrand completed a mental RFC form evaluating Ms. Wilson’s ability to
do work-related activities. As relevant here, she opined that Ms. Wilson has
moderate restrictions related to her ability to (1) interact appropriately with
supervisors; (2) respond appropriately to usual work situations; and (3) respond
appropriately to changes in a routine work setting. By comparison, the relevant part
of the ALJ’s RFC provides: “[Ms. Wilson] has been diagnosed with an affective
disorder and is limited to simple, unskilled work, superficial contact with co-workers
and supervisors, minimal contact with the public, but is able to adapt to work
situations.” Aplt. App., Vol. 2 at 15. Ms. Wilson notes that, rather than including
limitations in her RFC related to her ability to respond appropriately to usual work
situations and changes in a routine work setting, the ALJ instead affirmatively stated
that she “is able to adapt to work situations.” Id. Therefore, she contends that she
was prejudiced by the ALJ’s failure to weigh Dr. LaGrand’s opinion because it is not
-5-
clear that giving it greater weight “would not have helped her.” Keyes-Zachary,
695 F.3d at 1163.
Ms. Wilson also argues that the ALJ erred by failing to explain why he
appeared to adopt one moderate restriction from Dr. LaGrand’s opinion with regard
to her ability to interact appropriately with supervisors, while not including the
doctor’s other two moderate restrictions in her RFC.2 In Haga v. Astrue, we held that
“[a]n ALJ is not entitled to pick and choose through an uncontradicted medical
opinion, taking only the parts that are favorable to a finding of nondisability,”
without explaining his reasoning. 482 F.3d 1205, 1208 (10th Cir. 2007); see also
Frantz v. Astrue, 509 F.3d 1299, 1302–03 (10th Cir. 2007) (reversing and remanding
based on Haga where the ALJ accepted some of the moderate restrictions in a mental
RFC form but omitted other moderate restrictions from the RFC without discussion).
The Commissioner responds that the ALJ’s RFC is consistent with all of
Dr. LaGrand’s moderate restrictions in the mental RFC form. The Commissioner
first points to Dr. LaGrand’s statement in her report accompanying the form that
Ms. Wilson’s “‘ability to perform adequately in most job situations, handle the stress
of a work setting and deal with supervisors is estimated to be low average.’” Aplee.
Br. at 17 (quoting and adding emphasis to LaGrand report, Aplt. App., Vol. 3 at 480).
2
Ms. Wilson argued in her opening brief that the ALJ omitted all of
Dr. LaGrand’s moderate restrictions from Ms. Wilson’s RFC. But in her reply brief
she concedes that the RFC includes a limitation regarding her ability to relate to
supervisors that is generally consistent with Dr. LaGrand’s opinion. See Aplt. Reply
Br. at 9. We agree.
-6-
But the ALJ did not state in Ms. Wilson’s RFC that she has a “low average” ability to
respond appropriately to usual work situations and changes in a routine work setting.
Rather, he placed no qualification on her ability “to adapt to work situations.” Aplt.
App., Vol. 2 at 15.
The Commissioner also emphasizes the definition of “moderate” in the mental
RFC form, which provides that “moderate” means “[t]here is more than a slight
limitation in this area but the individual is still able to function satisfactorily.” Id.,
Vol. 3 at 483. The Commissioner asserts that, “[g]iven the definition[] of
‘moderate’. . . set forth on the form itself, the limitations the ALJ specified are
entirely consistent with the consultative examiner’s medical source statement form.”
Aplee. Br. at 17. The Commissioner thus maintains that the ALJ incorporated
Dr. LaGrand’s moderate restrictions regarding Ms. Wilson’s ability to respond
appropriately to usual work situations and adapt to changes in work settings by
stating in her RFC that she “is able to adapt to work situations.” Aplt. App., Vol. 2 at
15. In other words, the doctor’s “moderate” restrictions mean that Ms. Wilson has no
limitation in her ability to perform in these areas.
We rejected the Commissioner’s argument in Haga. As in this case, the ALJ
in Haga did not expressly reject a medical opinion, but he did not include in the
claimant’s RFC all of the moderate restrictions stated in it. See 482 F.3d at 1208. In
an effort to explain this omission, the Commissioner pointed to the definition of
“moderate” in the mental RFC form, noting “that a ‘moderate’ impairment . . . means
-7-
that the ‘individual is still able to function satisfactorily.’” Id. We disagreed with
the Commissioner’s assertion that “a moderate impairment is . . . the same as no
impairment at all.” Id. We concluded that the doctor in Haga “clearly intended to
indicate impairments on [the mental RFC] form.” Id. And because the ALJ’s RFC
included limitations that were consistent with some of the moderate impairments in
the medical opinion, we also said it was clear that the ALJ did not equate a
“moderate” impairment with no impairment at all. Id. We therefore reversed and
remanded because “the ALJ should have explained why he rejected four of the
moderate restrictions on [the doctor’s] RFC assessment while appearing to adopt the
others.” Id.
The Commissioner does not address Haga other than to assert that it is
distinguishable because “[t]he impairments and limitations the ALJ found are entirely
consistent with, and account for and encompass, the limitations Dr. LaGrand noted.”
Aplee. Br. at 21 n.7. But the Commissioner’s consistency argument is based on the
definition of “moderate” in the mental RFC form—the same contention that we
rejected in Haga. We therefore agree with Ms. Wilson that the ALJ’s RFC, as stated
in the decision, is not generally consistent with Dr. LaGrand’s medical opinion, and
the ALJ’s failure to weigh that opinion and explain why he accepted some, but not
all, of its moderate restrictions, was not harmless error. See Haga, 482 F.3d at 1208;
Keyes-Zachary, 695 F.3d at 1162-63. We reverse and remand to the ALJ for further
consideration of Dr. LaGrand’s opinion. If the ALJ intended to omit from
-8-
Ms. Wilson’s RFC the doctor’s moderate restrictions regarding her ability to adapt to
a usual work setting and any changes in it, the ALJ should explain his reasons for
doing so, as well as the weight he assigns to the opinion. If the ALJ intended to
adopt these moderate restrictions from Dr. LaGrand’s opinion, he should revise
Ms. Wilson’s RFC to include them.
B.
We do not reach Ms. Wilson’s other claims at this time. She contends that the
ALJ erred at step five by posing a hypothetical question to the vocational expert that
did not include all of Dr. LaGrand’s moderate restrictions. See Hargis v. Sullivan,
945 F.2d 1482, 1492 (10th Cir. 1991) (holding that “testimony elicited by
hypothetical questions that do not relate with precision all of a claimant’s
impairments cannot constitute substantial evidence to support the [Commissioner’s]
decision” (internal quotation marks and alteration omitted)). It is premature for the
court to address this claim as its resolution may be affected by the ALJ’s further
evaluation of Dr. LaGrand’s opinion on remand.
Ms. Wilson also asserts error in the ALJ’s credibility determination. We note
that the parties disagree as to what the ALJ’s specific reasons were in support of his
finding that Ms. Wilson was not fully credible. We have said that “findings as to
credibility should be closely and affirmatively linked to substantial evidence,” so that
a reviewing court is not “left to speculate what specific evidence led [to the ALJ’s
credibility determination].” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
-9-
(internal quotation marks and brackets omitted). Although an ALJ need not do a
“formalistic factor-by-factor recitation of the evidence,” he should “set[] forth the
specific evidence he relies on in evaluating the claimant’s credibility.”
Keyes-Zachary, 695 F.3d at 1167. On remand, we invite the ALJ to clarify the
specific reasons supporting his credibility determination.
III.
The judgment of the district court is reversed. We remand this case to the
district court with instructions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
- 10 -