                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 8, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court

    D IA N A G. K ER WIN ,

                Plaintiff-Appellant,

    v.                                                    No. 06-6343
                                                   (D.C. No. CIV-05-1202-M )
    M ICH AEL J. ASTRU E, *                               (W .D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.


         Plaintiff Diana G. Kerwin appeals from the district court’s order affirming

the Commissioner’s denial of her application for disability benefits. “W e review

the C ommissioner’s decision to determine w hether the factual findings are



*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
supported by substantial evidence and whether the correct legal standards were

applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). M s. Kerw in

argues the Commissioner provided an improper discussion and evaluation of

consulting physicians’ findings and opinions concerning her mental and physical

limitations. W e reverse and remand for further proceedings because the correct

legal standards were not applied.

                                    Background

      M s. Kerwin asserts disability beginning on September 30, 2002, due to

multiple mental and physical impairments. The A dministrative Law Judge (ALJ)

found that M s. Kerwin’s ability to work was not affected by her mental

impairments of anxiety and depression, but was affected by the severe physical

impairments of chronic obstructive pulmonary disease, degenerative disc disease,

hypothyroidism, and hypertension. In spite of these physical limitations, the ALJ

concluded M s. Kerwin had the residual functional capacity (RFC) to perform light

work and that she w as capable of returning to her previous relevant work as a

fast-food manager, file clerk, cashier, receptionist, dry-cleaner clerk, and

newspaper carrier.

      The ALJ therefore denied benefits at step four of the five-step sequential

evaluation process. See 20 C.F.R. § 404.1520. His decision became the final

decision of the Commissioner when the A ppeals Council denied M s. Kerwin’s

request for review. The district court affirmed the Commissioner’s decision.

                                         -2-
                                    Discussion

      M s. Kerwin contends that the ALJ improperly rejected the opinions of M ax

M . Edgar, Ph.D, a psychologist who conducted a consultative mental examination,

and Aaron Cates, M .D., an internist who performed a consultative physical

examination. As a result, she contends, the ALJ formulated an incomplete RFC

assessment.

M ental im pairm ents

      After examining M s. Kerwin at the Commissioner’s request, Dr. Edgar

provided a detailed evaluation of his impressions of M s. Kerw in and her

responses to his inquiries. He described M s. Kerwin’s demeanor and affect as

suggestive of psychomotor retardation and severe depression. His diagnosis was

that M s. Kerwin likely had a bipolar or schizoaffective disorder with severe major

depression and some audio and visual hallucinations, an underlying personality

disorder with possible learning difficulties, and possibly had post-traumatic stress

disorder with panic related to childhood abuse, and extreme levels of

psychosocial stressors. Dr. Edgar estimated M s. Kerwin’s Global Assessment of

Functioning score at 30-40, opining that she “does not appear w ell enough to

handle any kind of gainful employment” and “would need help in managing any

funds.” Aplt. App. at 251. 1



1
      A global assessment of functioning (GAF) score “is a subjective
                                                                    (continued...)

                                        -3-
      Later, non-examining agency consultants conducted a mental RFC

assessment based only on medical records and completed a psychiatric review

technique (PRT) form. 2 The PRT noted a contrast between M s. Kerw in’s

behavior at the examination performed by consultative internist Dr. Cates, when

“[s]he was able to hear and understand conversation well,” and her “description

of hallucinations” during Dr. Edgar’s examination. Id. at 276. Although it noted

that M s. Kerwin regularly takes Paxil prescribed by her treating physician for

depression, the PRT observed that “[w]hile she complains of depression, anxiety

and depression, she has never received mental health treatment.” Id. The

consultants found it telling that M s. Kerwin was “able to fix sandwiches and visit

with her family.” Id.

      The consultants concluded that M s. Kerwin’s m ental functional capacity

was not significantly limited, except for marked limitations in her ability to



1
 (...continued)
determination based on a scale of 1 to 100 of the clinician’s judgment of the
individual’s overall level of functioning.” Salazar v. Barnhart, 468 F.3d 615, 624
n.4 (10th Cir. 2006) (quotation omitted). “A GAF of 31-40 is extremely low, and
indicates some impairment in reality testing or communication or major
impairment in reality testing or communication or major impairment in reality
testing or communication or major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood.” Id. (quotation and
alterations omitted).


2
      The forms were completed initially by Sally Varghese, M .D. (a
psychiatrist) on October 18, 2002, and were reviewed by M argaret M cKinney
Ph.D. (a psychologist) on December 17, 2002.

                                         -4-
understand and carry out short and simple instructions. According to the

consultants, M s. Kerwin was “able to perform simple tasks with routine

supervision” and “relate to coworkers and supervisors for work[-]related matters.”

Id. at 262. In direct opposition to Dr. Edgar’s opinion, they stated that

M s. Kerw in had “independ[e]nt living skills” and “nothing suggest[ed] she could

not do other work.” Id. at 263.

      The A LJ conducted a hearing, at which M s. Kerw in and a vocational expert

testified. The ALJ then issued his decision. In evaluating the evidence, the ALJ

emphasized the notations in the medical record that M s. Kerwin tended to

overstate her symptoms. He repeated the consultants’ statement that she “has no

history of mental health treatment,” but mentioned that she took medication for

depression. Id. at 14. In addition, he cited to the treatment record of an

emergency room visit on October 18, 2000 (for foot pain of unexplained origin)

which lacked indications of “mood swings, anxiety, depression, tension or

memory changes.” Id. at 15. Also of significance to the ALJ was that, in the year

2000, M s. Kerwin was able to be a caregiver for her grandchildren during the

daytime and for her ill father at night. All of these observations factored into the

ALJ’s determination that M s. Kerwin’s “complaints at the mental[-]status

consultative exam were exaggerated, possibly in an attempt to generate evidence

for her appeal.” Id. at 14.




                                         -5-
      In the end, the ALJ implicitly rejected Dr. Edgar’s report. W ithout

mentioning Dr. Edgar’s GAF assessment and related opinions on M s. Kerw in’s

functional mental capacity, the ALJ found “only a moderate restriction of

activities of daily living, moderate difficulties in maintaining social functioning,

moderate difficulties in maintaining concentration, persistence or pace, and no

episodes of decompensation.” Id. at 15. According to the ALJ, “[h]er limitations

appear[ed] to be related to her physical condition, not due to a mental

impairment.” Id. at 14.

      On appeal, M s. Kerwin argues that the ALJ committed legal error by failing

to acknowledge and consider several significant aspects of Dr. Edgar’s

psychological evaluation: the GAF assessment, diagnosis of possible underlying

personality disorder, description of M s. Kerwin’s affect, levels of psychosocial

stressors, and conclusion that M s. Kerwin was incapable of any type of

em ploym ent or even handling any benefit payments. To address this issue, we

refer to basic precepts of social-security law.

      “[A]n ALJ is required to consider all of the claimant’s medically

determinable impairments, singly and in combination; the statute and regulations

require nothing less” and a failure to do so “is reversible error.” Salazar v.

Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). An ALJ “may not ignore evidence

that does not support his decision, especially when that evidence is significantly

probative.” Briggs ex rel. Briggs v. M assanari, 248 F.3d 1235, 1239 (10th Cir.

                                          -6-
2001) (quotation omitted); see also Clifton v. Chater, 79 F.3d 1007, 1010

(10th Cir. 1996) (“[I]n addition to discussing the evidence supporting his

decision, the ALJ also must discuss . . . significantly probative evidence he

rejects.”).

       Specifically applicable to M s. Kerwin’s case are our previous statements

that “psychological opinion may rest . . . on observed signs and symptoms,”

Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004), and that an ALJ may

not substitute his own judgment for that of a medical professional, see Winfrey v.

Chater, 92 F.3d 1017, 1022 (10th Cir. 1996). M oreover, an examining

physician’s opinion is normally entitled to more weight than a non-examining

physician’s opinion. See Robinson, 366 F.3d at 1084 (“The opinion of an

examining physician is generally entitled to less weight than that of a treating

physician, and the opinion of an agency physician who has never seen the

claimant is entitled to the least weight of all.”) (citing 20 C.F.R. § 404.1527(d)

and SSR 96-6p, 1996 W L 374180, at *2). Under these standards, the A LJ’s

determination is legally flawed. The ALJ essentially adopted most of the

non-examining consultants’ opinions without discussing the contrary opinions of

Dr. Edgar, the examining consultant. This situation is not fully remedied by the

ALJ’s determination that M s. Kerwin’s statements to Dr. Edgar were not credible,

based on indications in the medical record that M s. Kerwin may exaggerate her

physical symptoms, put forth less than maximal effort during testing, or provide

                                          -7-
conflicting information. W e must remand this matter for further consideration of

the medical evidence on M s. Kerwin’s mental impairments, using the proper legal

standards.

      On remand, the ALJ may decide that the record regarding mental

impairments is insufficient and needs to be developed with additional evidence.

See Robinson, 366 F.3d at 1084; see also 20 C.F.R. § 404.1512(e)(1) (“W e will

seek additional evidence or clarification from your medical source when the

report from your medical source contains a conflict or ambiguity that must be

resolved, the report does not contain all the necessary information, or does not

appear to be based on medically acceptable clinical and laboratory diagnostic

techniques.”). In any event, the ALJ must discuss the probative aspects of

Dr. Edgar’s report and, if he again rejects its conclusions, give legally adequate

reasons for doing so.

Physical Im pairm ents

      M s. Kerwin argues that the ALJ incorrectly evaluated the report of

Dr. Cates’ consultative internist examination, particularly with regard to

limitations in her use of her right wrist and hand and lack of a safe and steady

gait. Dr. Cates’ report described his examination findings, including his opinion

that M s. Kerwin lacked a safe or stable gait without the use of a cane and had

range-of-motion limitations in her back, neck, hip, knee, ankle, and shoulder,

though some of “[t]his may be partially the patient’s playing up her limitations.”

                                         -8-
Aplt. App. at 238. As for her hands and wrists, M s. Kerwin had limited flexion

and hyperextension of all fingers on her right hand, reduced grip strength, and an

inability to manipulate objects or grasp tools with her right hand, but no

right-hand atrophy. Also, he noted that M s. Kerwin had great difficulty stepping

off a curb outside and problems walking in the examination room. Dr. Cates’

conclusion was that M s. Kerwin “has multiple medical problems and does appear

to be significantly limited in her ability to function normally on a daily basis.”

Id. at 240.

       The ALJ’s physical-impairment evaluation was similar to his

mental impairment analysis. The A LJ focused on indications of M s. Kerw in’s

inconsistent symptoms, shifting descriptions of activities, and exaggerated pain

behaviors w ithout mentioning the specific hand-and-wrist limitations or gait

problems found by Dr. Cates. Other than his thoughts on M s. Kerw in’s

credibility, the ALJ did not “provide specific, legitimate reasons for rejecting

[Dr. C ates’ opinion],” as required by the agency’s regulations. Doyal v. Barnhart

331 F.3d 758, 764 (10th Cir. 2003). In reaching the RFC determination that

M s. Kerwin was capable of performing light work, the ALJ did not include any

handling, fingering, or walking limitations.

       An ALJ is not entitled to pick and choose through a medical opinion, taking

only the parts that are favorable to a finding of nondisability. Robinson, 366 F.3d

at 1083. Although “an ALJ is not required to discuss every piece of evidence,” he

                                          -9-
must discuss the uncontroverted evidence he chooses not to rely upon, as well as

significantly probative evidence he rejects.” Clifton, 79 F.3d at 1009-10. And

the absence of a explanation is of significance in M s. Kerwin’s case: all of her

former relevant jobs involve frequent handling or fingering. See Dictionary of

Occupational Titles §§ 185.137.010 (manager, fast-food services); 206.387-034

(file clerk); 211.462-014 (cashier-checker); 237.367-038 (receptionist); 290.477-

014 (retail-sales clerk); 292.457-010 (newspaper carrier). Further, light-work

positions require that an individual be able to stand or walk up to six hours in an

eight-hour day. See SSR 83-10, 1983 W L 31251, *6 (1983).

      On the issue of physical impairments, we remand for further consideration

of Dr. Cates’ report and, if necessary, development of additional evidence

concerning M s. Kerwin’s hand and gait limitations. 3

                                     Conclusion

      The judgment of the district court is REVERSED, and this case is

REM ANDED to the district court with directions to REM AND to the

Commissioner for further proceedings.


                                                     Entered for the Court

                                                     Robert H. Henry
                                                     Circuit Judge


3
      M s. Kerwin also claims that the ALJ’s determination of her RFC is not
supported by substantial evidence. Because this issue is interwoven with the
ALJ’s evaluation of Dr. Cates’ report, we do not specifically address this
argument.

                                         -10-
