                                                                        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not binding precedent, except under the doctrines of law of the case, res judicata,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.

                                          -4-
      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.




                                           -5-
      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.




                                         -6-
      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




                                         -7-
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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