F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 24, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHERY L CONFERE,
Plaintiff-Appellant,
v. No. 06-4217
(D.C. No. 2:02-CV-673-DB)
M ICH AEL J. ASTRU E, * (D. Utah)
Commissioner, Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Sheryl Confere, proceeding pro se, appeals from an order of the district
court affirming the Commissioner’s decision denying her application for
disability insurance and supplemental security income benefits. The
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Commissioner denied her claim initially and upon reconsideration. After a
hearing, the Administrative Law Judge (ALJ) determined that M s. Confere was
not eligible for benefits, concluding that she was not disabled at step five of the
analysis because she could perform a significant number of jobs in the national
economy. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(explaining five-step process for evaluating claims for disability benefits). The
Appeals Council denied M s. Confere’s request for review, making the A LJ’s
decision the Commissioner’s final decision. See D oyal v. Barnhart, 331 F.3d
758, 759 (10th Cir. 2003). W e have jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g).
W e 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. Winfrey v. Chater, 92 F.3d 1017, 1019
(10th Cir. 1996). On appeal, M s. Confere argues that the district court incorrectly
decided the facts because “Social Security had evidence that went over multiple
points of condition, even stating severity.” A plt. Br. at 4. Because M s. Confere
is proceeding pro se, we must liberally construe her brief. See Hall v. Bellmon,
935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). W e construe this as an argument
that the ALJ ignored evidence indicating the severity of M s. Confere’s condition.
M s. Confere did not file a substantive brief in the district court. Instead,
she filed a series of letters suggesting the existence of additional evidence. In
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general, we consider an argument waived when it has not been presented to the
district court. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). If there
are “compelling reasons,” however, w e can excuse the waiver. Id. This case
presents such a circumstance. M s. Confere is pro se and suffers from significant
mental limitations. In addition, the ALJ’s error could impact the ultimate finding
that M s. Confere was not disabled.
M s. Confere was thirty-two years old with a high school education and
three years of higher education at the time of the alleged onset of her disability on
November 5, 1999. She alleges that she became disabled due to migraine
headaches, numbness, blackouts, periodic loss of use of parts of limbs, occasional
collapse of legs, and twitching. The ALJ found that M s. Confere had not engaged
in substantial gainful activity since the alleged onset date of her disability.
After reviewing the medical evidence, the A LJ determined that M s. Confere
had the following medically determinable severe impairments: “(1) headaches
(controlled with conservative medication); (2) Somatoform disorder, i.e.,
‘paralysis’ episodes–‘blackouts,’ ‘seizures,’ or dissassociative disorders,
(3) affective disorder– depressive type, and (4) borderline personality traits,
impairments that are severe within the meaning of the Regulations.” Aplee. App.
at 16. He concluded, however, that none of these impairments met any of the
relevant listings. The A LJ then made a determination regarding M s. Confere’s
residual functional capacity (RFC). The relevant portion of her RFC deals w ith
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her mental limitations and states: “Claimant’s ability to focus her attention and
concentrate, to understand, remember and carry out detailed instructions, and
to respond appropriately to changes in w ork setting is moderately impaired.”
Id. at 19 (emphasis added).
The evidence reflects that Dr. Peter Heinbecker performed a consultative
psychiatric evaluation of M s. Confere. He diagnosed M s. Confere with “M ajor
depression, recurrent, severe”; “Somatization disorder”; “Dissociative disorder”;
and “Borderline personality traits.” Id. at 238. He concluded that M s. Confere’s
“ability to understand and remember seems to be moderately impaired. Her
ability to concentrate and persist seems to be significantly impaired. Her ability
to socialize and adapt seems to be moderately impaired.” Id. at 238 (emphasis
added).
Consistent with Dr. Heinbecker’s assessment, Dr. M . Egan, a state agency
psychiatrist, determined based on her review of the medical records that
M s. Confere had marked difficulties in maintaining concentration, persistence, or
pace. Id. at 346. Dr. Egan also concluded that M s. Confere was “[m]arkedly
limited” in her “ability to understand and remember detailed instructions” and in
her “ability to carry out detailed instructions.” Id. at 327. In addition, Dr. Egan
determined that M s. Confere was moderately limited in nine other areas.
Dr. Egan’s assessment was affirmed by another state agency physician.
Id. at 334, 336.
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The ALJ’s RFC determination reflects some of the limitations identified by
Dr. Heinbecker and Dr. Egan, but does not include their assessment that
M s. Confere has marked difficulties in maintaining concentration, persistence, or
pace and Dr. Egan’s conclusion that M s. Confere was markedly limited in her
ability to understand, remember and carry out detailed instructions. The A LJ’s
RFC also omits the nine other areas in which Dr. Egan found M s. Confere to be
moderately impaired.
The ALJ mentions Dr. Heinbecker’s assessment during his discussion of the
evidence, id. at 16, but he does not state that he is rejecting any part of it and
gives no indication as to why he would disregard Dr. Heinbecker’s conclusion
that M s. Confere was significantly impaired in her ability to concentrate and
persist. After making the RFC determination, the ALJ also stated:
This conclusion is supported by the findings and opinions of the
Stage Agency physicians who previously examined the record and
reported their opinions at exhibits 15F-17F. Such opinions by
program physicians are afforded the weight of expert medical
opinions by non-examining physicians in accordance with Social
Security Ruling 96-6p. The undersigned accepts the opinions of the
State Agency physicians and has incorporated them into his
assessment of the claimant’s residual functional capacity.
Id. at 20 (emphasis added). This statement is not accurate. The ALJ could not
have accepted and incorporated the opinions of the state agency physicians into
his RFC because his RFC directly conflicts with Dr. Egan’s assessment.
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At the hearing, the ALJ elicited testimony from a Vocational Expert (VE)
regarding M s. C onfere’s ability to work. The ALJ presented the VE with two
hypotheticals. The first hypothetical tracks the RFC that the ALJ ultimately
selected. See id. at 19, 51-52. The second hypothetical contains additional
limitations that were included in the RFC assessment completed by Dr. Egan. See
id. at 54-55, 327-28. For example, with the second hypothetical the ALJ included
that “the individual would be markedly limited in the ability to understand,
remember and carry out detailed instructions,” as well as a number of other areas
of moderate impairment not discussed in the first hypothetical. See id. at 54.
The VE concluded that with the restrictions in the first hypothetical,
M s. Confere could perform several sedentary jobs. After the second hypothetical,
however, the VE concluded that no sedentary jobs could be performed with the
included restrictions. Id. at 55 (emphasis added). The ALJ selected the RFC that
he used for the first hypothetical, which includes some, but not all of the
limitations identified by Dr. Heinbecker or Dr. Egan. In addition, the ALJ does
not reference the VE’s testimony, which was highly probative because it could
lead to a finding of disability. The ALJ’s decision does not reflect that there was
any evidence that he rejected, other than M s. Confere’s testimony about her
limitations. See id. at 19.
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Under our case law, the ALJ “‘must discuss the uncontroverted evidence he
chooses not to rely on, as well as significantly probative evidence he rejects.’”
See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003) (quoting Clifton v.
Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)). The situation presented in this
case is very similar to the situation discussed in one of our recent decisions, Haga
v. Astrue, ___F.3d ___, No. 06-5107, 2007 W L 970157 (10th Cir. Apr. 3, 2007).
In Haga, the ALJ adopted some of the restrictions identified by the treating
physician, but disregarded other restrictions without any explanation. Id. at *1.
W e concluded that:
the ALJ should have explained why he rejected four of the moderate
restrictions . . . while appearing to adopt others. An ALJ is not
entitled to pick through an uncontradicted medical opinion, taking
only the parts that are favorable to a finding of nondisability.
Although . . . the ALJ is entitled to resolve any conflicts in the
record, the ALJ did not state that any evidence conflicted with [the
treating physician’s] opinion or mental RFC assessment. So it is
simply unexplained why the ALJ adopted some of [the] restrictions
but not others. W e therefore remand so that the ALJ can explain the
evidentiary support for his RFC determination.
Id. at *2 (citations omitted).
As we did in Haga, we must remand here so that the ALJ can explain
the evidentiary basis for his RFC determination and his reasons for rejecting
portions of the uncontroverted evidence. The judgment of the district court is
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REVERSED and the case is REM ANDED with instructions to remand to the
agency for additional proceedings.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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