                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 September 24, 2015
                   UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                         FOR THE TENTH CIRCUIT
                     _________________________________

RHONDA R. TRUJILLO,

      Plaintiff - Appellant,

v.                                                       No. 14-1458
                                               (D.C. No. 1:13-CV-03217-MJW)
CAROLYN W. COLVIN, Acting                               (D. Colorado)
Commissioner of the Social Security
Administration

      Defendant - Appellee.
                   _________________________________

                         ORDER AND JUDGMENT *
                     _________________________________

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
                _________________________________


      Ms. Rhonda R. Trujillo suffers from an affective disorder and seeks social

security disability benefits, claiming that she cannot work. This claim was

supported by a psychologist, Dr. Robert Pelc, who testified that Ms. Trujillo had a

marked limitation in her ability to complete a normal workweek without (1)



*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on
the briefs.

       Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P.
32.1(a); 10th Cir. R. 32.1(A).
interruption from psychologically based symptoms or (2) excessive rest breaks.

The administrative law judge rejected the claim, concluding that Ms. Trujillo

could perform certain work as long as it involved tasks that were simple, rote, and

repetitive. The district court affirmed. We reverse because the administrative law

judge failed to address Dr. Pelc’s assessment of a marked limitation.

1.    Standard of Review

      In this appeal, we engage in de novo review of the district court’s ruling.

Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). In conducting de novo

review, we must decide whether the Social Security Administration correctly

applied legal standards and made findings supported by substantial evidence.

Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014).

2.    The administrative law judge failed to consider Dr. Pelc’s opinion
      regarding a marked limitation in completing a normal workweek
      without excessive rest breaks.

      To decide whether the agency correctly applied legal standards, we begin

with an opinion stated by Dr. Pelc during his cross-examination. The cross-

examiner asked Dr. Pelc to comment about the assessment by another

psychologist, Dr. Richard Madsen. Dr. Madsen’s assessment included a marked

limitation in the ability

      !      to complete a normal workweek without interruption from
             psychologically based symptoms and

      !      to perform at a consistent pace without an unreasonable number or
             length of rest periods.

                                         2
R. at 544. When asked about Dr. Madsen’s assessment, Dr. Pelc agreed, stating

that he too would regard Ms. Trujillo as markedly limited. Id. at 290.

         The administrative law judge had to at least (1) consider Dr. Pelc’s

adoption of this assessment and (2) state whether he agreed with Dr. Pelc. See

Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (stating that the

administrative law judge must discuss significantly probative evidence that is

rejected and uncontroverted evidence that is not relied upon). The judge failed to

satisfy this requirement, for he never mentioned Dr. Pelc’s assessment of a

marked limitation in Ms. Trujillo’s ability to complete a normal workweek

without interruptions or excessive rest breaks. That failure constitutes reversible

error.

         According to the Defendant, the administrative law judge elsewhere dealt

with Dr. Pelc’s opinion, accounted for the limitation, and made other findings that

would have rendered any omission harmless. We disagree with each argument.

         The Defendant denies any omission, pointing to the administrative law

judge’s discussion of opinions elicited in Dr. Pelc’s direct-examination. For

example, the administrative law judge addressed Dr. Pelc’s opinions regarding (1)

a marked limitation in Ms. Trujillo’s ability to process information that is detailed

or complex and (2) her inability to deal with usual work routines and changes in

routine work environments. R. at 287. But these opinions did not address Ms.

Trujillo’s inability to complete a normal workweek without interruption from

                                            3
psychologically based symptoms or excessive rest breaks. The opinions expressed

in direct-examination and cross-examination were distinct.

      The Defendant also contends that the administrative law judge accounted

for this limitation by (1) discussing a broader limitation and (2) limiting Ms.

Trujillo to unskilled work involving only simple, rote, repetitive tasks. We

disagree.

      The Defendant contends that the administrative law judge broadly

discussed Dr. Pelc’s opinion (involving a marked limitation in the ability to

complete a normal workweek) by discussing another of Dr. Pelc’s opinions

(involving an inability to follow complex or detailed instructions). We reject this

contention, for the two opinions are distinct. The judge discussed Dr. Pelc’s

assessment of mental ability at a snapshot in time, considering whether Ms.

Trujillo could follow an instruction that is complex or detailed. But the judge

failed to discuss Dr. Pelc’s assessment regarding the duration (a normal

workweek) of Ms. Trujillo’s ability to satisfy the mental demands of work

assignments even when they lack detail or complexity.

      This distinction is reflected in the testimony of a vocational expert. The

expert was asked about the vocational effects of both limitations. The limitation

discussed by the judge (an inability to follow complex or detailed instructions)

would still allow Ms. Trujillo to work. R. at 294. But when asked about the

limitation omitted by the judge (a marked limitation in the ability to complete a

                                          4
normal workweek), the vocational expert stated that Ms. Trujillo would have been

unable to do any work. Id. at 296.

      Ignoring this distinction, the Defendant argues that the administrative law

judge implicitly accounted for Ms. Trujillo’s marked limitation in her ability to

complete a normal workweek, pointing to the judge’s restriction to work tasks

that are simple, rote, and repetitive. We again disagree. Even when a job is

simple, rote, and repetitive, a person must be able to work normal workweeks

without excessive rest periods. Thus, as noted above, the vocational expert

testified that Ms. Trujillo could not keep a job if she had a marked impairment in

the ability to complete a normal workweek without interruptions or excessive rest

breaks. Id.

      In our view, the administrative law judge’s rationale breaks down with his

failure to consider Dr. Pelc’s assessment of a marked limitation in the ability to

complete a normal workweek. The Defendant predicts that the administrative law

judge would have rejected Dr. Pelc’s assessment, pointing out that the judge had

already rejected a similar assessment by Dr. Madsen. That is a possibility, but we

do not know what the administrative law judge would have decided if he had

actually evaluated Dr. Pelc’s opinion.

      To indulge in the Defendant’s prediction, we must be able to confidently

conclude that no reasonable administrative fact-finder could have credited Dr.




                                          5
Pelc’s assessment while rejecting Dr. Madsen’s. Allen v. Barnhart, 357 F.3d

1140, 1145 (10th Cir. 2004). That sort of confidence is missing here.

      The administrative law judge adopted some of Dr. Madsen’s opinions and

rejected others. In rejecting some of Dr. Madsen’s opinions, the judge explained

that Dr. Madsen had examined Ms. Trujillo only twice, failed to provide a

persuasive rationale or thorough discussion of the evidence, and given an

assessment that conflicted with exam findings and Ms. Trujillo’s treatment

history. R. at 270.

      That explanation might not have applied to Dr. Pelc’s assessment. The

administrative law judge referred to Dr. Pelc as a psychiatric expert and

acknowledged that Dr. Pelc had thoroughly reviewed the medical evidence. Id. at

271. And with corroboration by Dr. Pelc, the administrative law judge may have

been less dismissive of Dr. Madsen’s assessment.

      We simply do not know what the result would have been if the

administrative law judge had discussed Dr. Pelc’s opinion. In these

circumstances, the failure to discuss that opinion constitutes reversible error.

3.    The administrative law judge did not err in discussing Dr. Pelc’s other
      opinions.

      Because that failure constitutes reversible error, we must remand to the

district court with instructions to order a further remand to the Social Security

Administration. Because of the need for further administrative proceedings, we


                                          6
address Ms. Trujillo’s argument concerning another of Dr. Pelc’s opinions. In that

opinion, Dr. Pelc assessed Ms. Trujillo’s inability to deal with routine work

changes. Id. at 287-88. The administrative law judge rejected this assessment,

explaining that Ms. Trujillo’s mood swings and lability were not so severe that

they would prevent adaptation to usual work changes. Id. at 271.

      Ms. Trujillo questions this explanation, arguing that the administrative law

judge substituted his own opinion for Dr. Pelc’s. We disagree. It is true that

administrative law judges cannot substitute their own lay opinions for a

psychological expert’s. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir.

2002). But that is not what the administrative law judge did. He had an obligation

to determine what Ms. Trujillo could do in spite of her limitations (what the

regulations call her “residual functional capacity”). See Howard v. Barnhart, 379

F.3d 945, 949 (10th Cir. 2004) (stating that the administrative law judge, not a

physician, is charged with determining the claimant’s residual functional

capacity). The judge was simply carrying out that obligation when analyzing Dr.

Pelc’s assessment against the backdrop of the other psychological evidence

involving mood swings and lability.

      The judge had to give “good reasons” for his assessment, and he carried out

that obligation by relying on his earlier discussion of the examinations by others.

See 20 C.F.R. § 416.927(c)(2), (e). Through these references, the judge explained




                                          7
that even with mood swings and lability, Ms. Trujillo had normal content, normal

affect, and insight and judgment that were intact. R. at 268-69.

      Ms. Trujillo questions this rationale, arguing that the administrative law

judge misinterpreted the record and gave greater weight to his own lay opinion

than to the medical expert’s opinion. But the administrative law judge had a duty

to evaluate the opinions given by the medical expert. See 20 C.F.R.

§ 416.927(e)(2)(iii).

      In carrying out this duty, the judge reasonably evaluated the medical

evidence, for

      !      Dr. Madsen had assessed Ms. Trujillo’s “thought content” as
             “[l]ogical and relevant” (R. at 541) and

      !      a physician’s assistant and a nurse-practitioner had regarded Ms.
             Trujillo’s mood and affect as “appropriate” and her insight and
             judgment as “normal” (R. at 472, 476, 485, 499, 503, 641).

In light of these assessments by medical professionals, the judge had substantial

evidence for his evaluation of Dr. Pelc’s opinion regarding an inability to deal

with routine work changes. As a result, the judge did not err when he rejected Dr.

Pelc’s opinion involving routine work changes.

4.    Conclusion

      Because the administrative law judge failed to discuss a different opinion

by Dr. Pelc (involving a marked limitation in the ability to complete a normal

workweek), we reverse. The action is remanded to the district court with


                                          8
instructions to remand the action to the Social Security Administration for further

proceedings.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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