                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     June 29, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    LINDA J. DANIELL,

                Plaintiff-Appellant,

    v.                                                    No. 09-2310
                                                  (D.C. No. 1:08-CV-01088-CG)
    MICHAEL J. ASTRUE, Commissioner                         (D. N.M.)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH,
Circuit Judges.



         Linda J. Daniell appeals from an order of the district court affirming the

Commissioner’s decision denying her application for Social Security benefits.

This case involves a small administrative record with a limited amount of medical

evidence. Ms. Daniell submitted records from her two treating physicians,



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Dr. Julian Venegas and Dr. Michael Murphy. The remaining records are limited

to consultative examinations and an assessment form that was prepared by a

non-examining agency physician after he reviewed the records from one of the

consultative examinations. After reviewing the records and holding a hearing, the

Administrative Law Judge (ALJ) determined that Ms. Daniell had the residual

functional capacity (RFC) to return to her past work as a secretary.

         Ms. Daniell asserts that the ALJ’s RFC determination was flawed because

the ALJ did not properly consider the opinions of her treating physicians. We

agree.

         The ALJ’s RFC determination appears to be based on the opinion of the

agency’s non-examining medical consultant and conflicts with the opinions of

Ms. Daniell’s treating physicians. When an ALJ considers medical opinions, the

opinion of a non-examining physician is generally entitled to the least weight of

all and the opinion of a treating physician is generally entitled to the most weight.

The ALJ did not follow the sequential analysis for considering treating physician

opinions, did not seek to develop the record further before rejecting those

opinions, and did not offer any legally sufficient justification for favoring the

opinion of the non-examining agency physician over the opinions of the treating

physicians. Because of these legal errors, we must reverse and remand for further

proceedings.




                                          -2-
                                  I. Background

      Ms. Daniell filed an application for disability insurance benefits on

December 1, 2004, alleging that she became disabled on October 11, 2004, due to

an injury to her left ankle. Because Ms. Daniell had not received treatment for

her ankle injury since 2000, Ms. Daniell was examined by a consultative

examiner, Dr. John C. Lund, in January 2005. Dr. Lund confirmed that she had

suffered an injury to her left ankle. He noted that her ankle was swollen and

painful to the touch and her range of motion in that ankle was limited to about

five degrees of flexion and extension, but he did not provide an assessment of her

functional capacity. In February 2005, Dr. Edward Bocian, a state agency

medical consultant, reviewed Ms. Daniell’s medical records and completed a form

entitled “Physical Residual Functional Capacity Assessment.” Admin. R. at 93.

      Next, from March to October 2005, Dr. Venegas treated Ms. Daniell for

ankle osteoarthritis with pain. He prescribed anti-inflammatory medication and

pain medication. In September 2005, Dr. Venegas completed two forms that

reflected his assessment of Ms. Daniell’s physical and non-exertional limitations

due to her ankle impairment. In October and November 2005, Dr. Venegas

attempted to alleviate Ms. Daniell’s ankle pain by administering steroid injections

but he observed no significant improvement in Ms. Daniell’s condition after the

injections.




                                        -3-
      In March 2006, Dr. Murphy began treating Ms. Daniell. She saw him twice

in March and once for a follow-up in August. She also went to see Dr. Mark

Seibel in August 2006. He recommended surgery based on his opinion that she

had optimized all of her other treatment options. Ms. Daniell told Dr. Seibel that

she was concerned about not having health insurance and therefore she wanted to

wait until her disability and insurance issues were resolved before proceeding

with surgery. In May 2007, Ms. Daniell went back to Dr. Murphy complaining

again of ankle pain. At that visit, she also had him complete two forms where he

assessed her physical and non-exertional limitations.

      The agency denied Ms. Daniell’s application for benefits initially and on

reconsideration. At her request, Ms. Daniell received a de novo hearing before an

ALJ. After the hearing, the ALJ determined that Ms. Daniell suffered from the

following severe impairment: status-post left ankle fracture, with severe

degenerative posttraumatic arthrosis. The ALJ concluded, however, that

Ms. Daniell did not have any impairment or combination of impairments that

equaled any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 and

that she had the residual functional capacity to perform her past relevant work as

a secretary. As a result, the ALJ denied Ms. Daniell’s application for benefits,

concluding that she was not disabled at step four of the analysis. See Williams v.

Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step process for

evaluating claims for disability benefits).

                                          -4-
      The Appeals Council denied review, making the ALJ’s decision the

Commissioner’s final decision. Ms. Daniell appealed the ALJ’s decision to the

district court and that court affirmed the ALJ’s decision. This appeal followed.

                                   II. Discussion

      “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.” Doyal v. Barnhart, 331 F.3d 758, 760

(10th Cir. 2003). On appeal, Ms. Daniell argues that the ALJ erred in assessing

her residual functional capacity (RFC), in finding that she could return to her past

relevant work as a secretary, and in assessing her pain and credibility.

      We agree that the ALJ erred in assessing Ms. Daniell’s RFC because she

did not properly consider the opinions of Ms. Daniell’s treating physicians. First,

the ALJ did not follow the sequential analysis for considering treating physician

opinions as outlined in Watkins v. Barnhart, 350 F.3d 1297 (10th Cir. 2003).

Second, the ALJ failed to seek further development of the record before rejecting

the opinions of the treating physicians. Third, the ALJ improperly favored the

opinion of the non-examining medical consultant over the opinions of

Ms. Daniell’s two treating physicians.

       The ALJ made the following RFC determination:

      [T]he claimant can lift and carry up to ten pounds, can sit for a total
      of no more than six hours, can stand and walk for a total of no more
      than two hours and continuously for 15 minutes, can push and pull

                                         -5-
      with the upper extremities in a manner consistent with the strength
      limitations just stated and with the lower extremities except just with
      her right foot. She should never climb ropes, ladders or scaffolds,
      but can occasionally climb ramps and stairs, and balance, stoop,
      kneel, crouch, and crawl occasionally. She must avoid concentrated
      exposure to unprotected heights and hazardous moving machinery.

Admin. R. at 17. As Ms. Daniell explains, the ALJ’s RFC determination conflicts

with the opinions of her treating physicians, Dr. Venegas and Dr. Murphy. Both

of these doctors limited Ms. Daniell’s lifting to less than five pounds and limited

her standing/walking to less than two hours in an eight-hour workday.

Dr. Murphy further limited Ms. Daniell to no kneeling, stooping, crawling, or

crouching. The ALJ’s RFC determination tracks the RFC assessment provided by

the non-examining medical consultant.

      Social Security Ruling 96-8p, which provides guidance for “Assessing

Residual Functional Capacity in Initial Claims,” explains:

      Medical opinions from treating sources about the nature and severity
      of an individual’s impairment(s) are entitled to special significance
      and may be entitled to controlling weight. If a treating source’s
      medical opinion on an issue of the nature and severity of an
      individual’s impairment(s) is well-supported by medically acceptable
      clinical and laboratory diagnostic techniques and is not inconsistent
      with the other substantial evidence in the case record, the adjudicator
      must give it controlling weight.

Social Security Ruling 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Ms. Daniell

contends that “the ALJ failed to show that the medical assessments by either

Dr. Venegas or Dr. Murphy were inconsistent with ‘other substantial evidence.’

As such, the opinions were entitled to controlling weight and their respective

                                         -6-
functional restrictions should have been included in the ALJ’s assessment of

Ms. Daniell’s RFC.” Aplt. Br. at 25.

      As we explained in Watkins, when considering a treating source opinion, an

ALJ must first determine if the opinion is entitled to controlling weight. 350 F.3d

at 1300. In making this determination, an ALJ must consider whether the opinion

is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and whether the opinion is consistent with other substantial evidence

in the record. See id. “A finding at this stage (as to whether the opinion is either

unsupported or inconsistent with other substantial evidence) is necessary so that

we can properly review the ALJ’s determination on appeal.” Id. at 1300. If the

ALJ determines that the opinion is deficient in both of these respects, then it is

not entitled to controlling weight. See id. The ALJ’s next step is to determine

what weight, if any, the opinion deserves, considering certain factors identified in

the regulations. See id. at 1300-01. Treating physician opinions are still entitled

to deference and the ALJ must give good reasons in his or her decision for the

weight he ultimately assigns those opinions. Id.

      In considering the opinions of Ms. Daniell’s treating physicians, the ALJ

first noted that Dr. Venegas had opined that Ms. Daniell was able to sit for at

least six hours out of an eight-hour work day, which supported sedentary work.

The ALJ presumably agreed with this portion of Dr. Venegas’s opinion. But the

ALJ went on to reject Dr. Venegas’s opinion that Ms. Daniell could lift no more

                                          -7-
than five pounds, explaining “[t]hat physician gave no particular reason why the

claimant’s ankle condition should prevent lifting of more than five pounds, or

why the claimant would not be able to lift up to ten pounds; and his opinion was

given by means of checked boxes, without any explanation.” Admin. R. at 20-21.

The ALJ further rejected Dr. Venegas’s opinion that Ms. Daniell “would have

severe problems working a full work day or work week because of her ankle pain”

because that part of the opinion “appears to have been based on [Ms. Daniell’s]

reports of symptoms to [Dr. Venegas], which are not fully credible.” Id. at 21.

Finally, the ALJ implicitly rejected the portion of Dr. Venegas’s opinion that

Ms. Daniell should be restricted to standing or walking less than two hours in an

eight-hour workday because the ALJ’s RFC assessment provided that Ms. Daniell

could stand and/or walk up to two hours per day.

      The ALJ next considered Dr. Murphy’s opinion, noting that Dr. Murphy

had also given his opinion “by filling in a form with checked boxes” and that he

had checked the boxes indicating that Ms. Daniell was unable to stand or walk

even two hours out of an eight-hour workday, she could not sit for even four

hours during the workday, and she could not lift even five pounds. Id. The ALJ

further noted that “[l]ike Dr. Venegas, [Dr. Murphy] provided no specific reason

for such severe work restrictions based on [Ms. Daniell’s] ankle condition.” Id.

The ALJ also rejected Dr. Murphy’s opinion that Ms. Daniell could do no




                                        -8-
kneeling, stopping, crouching, or crawling. The ALJ ultimately concluded that

Dr. Murphy’s opinion was entitled to “little weight.” Id.

      The ALJ’s consideration of the opinions of Dr. Venegas and Dr. Murphy is

deficient in several respects. First, the ALJ failed to follow the sequential

analysis we outlined in Watkins. See 350 F.3d at 1300-01. In the decision, the

ALJ did not give controlling weight to the opinion of Dr. Venegas or Dr. Murphy

and failed to provide sufficient reasons for this conclusion, and then failed to

explain what weight, if any, she was giving Dr. Venegas’s opinion. 1 See id.

Instead, her rejection of the treating physician opinions appears based on her own

speculation. “In choosing to reject the treating physician’s assessment, an ALJ

may not make speculative inferences from medical reports and may reject a

treating physician’s opinion outright only on the basis of contradictory medical

evidence and not due to his own or her own credibility judgments, speculation or

lay opinion.” Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004). The

ALJ did not identify any contradictory or substantial medical evidence that

outweighed the treating physician opinions.




1
       The ALJ appeared to give Dr. Venegas’s opinion some weight by relying
on it for the portion of the RFC that Ms. Daniell could sit for six hours a day and
in discounting Dr. Murphy’s opinion that Ms. Daniell could only sit for four
hours a day. But “[t]he ALJ is not entitled to pick and choose from a medical
opinion, using only those parts that are favorable to a finding of nondisability.”
Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

                                         -9-
      Second, the ALJ’s statement that Dr. Venegas and Dr. Murphy did not give

reasons for such severe functional limitations triggered the ALJ’s duty to seek

further development of the record before rejecting their opinions. The medical

evidence in this case is limited. When both treating physicians adopt similar

functional limitations, the ALJ should not reject those limitations out of hand.

Rather, the ALJ should give the treating physicians an opportunity to provide the

reasons for the limitations they assessed.

      In Robinson, we remanded the case under virtually identical circumstances

when the ALJ in that case stated that the treating physician’s records did not give

a reason for his opinion that the claimant in that case was unable to work. See

Robinson, 366 F.3d at 1084. “If evidence from the claimant’s treating doctor is

inadequate to determine if the claimant is disabled, an ALJ is required to

recontact a medical source, including a treating physician to determine if

additional needed information is readily available.” Id. (citing 20 C.F.R.

§§ 404.1512(e)(1) and 416.912(e)(1) (“We 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.”)). It is the ALJ’s

responsibility to seek additional evidence from a treating physician under these

circumstances. See Robinson, 366 F.3d at 1084.

                                        -10-
      Finally, the ALJ improperly discounted the opinions of the treating

physicians as to Ms. Daniell’s exertional and non-exertional limitations in favor

of the opinion of the medical consultant who did not examine Ms. Daniell.

Before discussing the treating physician opinions, the ALJ explained that her RFC

determination was “consistent with the opinions of the consultative examiner and

the medical consultant.” Admin. R. at 20. In making the RFC assessment, the

ALJ adopted the medical consultant’s opinion that Ms. Daniell could lift up to ten

pounds, could stand/walk for two hours, and could occasionally stoop, kneel,

crawl, and crouch, although those opinions were inconsistent with the opinions of

the treating physicians.

      “When a treating physician’s opinion is inconsistent with other medical

evidence, the ALJ’s task is to examine the other physicians’ reports to see if they

outweigh the treating physician’s report, not the other way around.” Hamlin v.

Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (internal quotation marks and

brackets omitted). The ALJ did not explain why the opinion of the consultative

examiner and the non-examining medical consultant should be given more weight

than the opinions of Dr. Venegas and Dr. Murphy. The ALJ was critical of the

treating physicians for checking boxes on forms without providing specific

reasons for why Ms. Daniell’s condition would limit her functional abilities in

certain areas, but the medical consultant provided his assessment in the same

format. Compare Admin. R. at 94-95 with id. at 103, 167. Although the medical

                                        -11-
consultant provided some narrative on his form, see id. at 94-95, he, like the

treating physicians, did not give specific reasons for the functional limitations he

assessed. Moreover, the medical consultant’s opinion was based solely on a

review of the medical records from Ms. Daniell’s consultative examination in

January 2005, and did not include a review of any of the medical records or

assessments provided by Dr. Venegas or Dr. Murphy.

      In general, treating source opinions should be given more weight than the

views of consulting physicians or those who only review the medical records and

never examine the claimant. See Robinson, 366 F.3d at 1084. As we explained in

Robinson,

      The treating physician’s opinion is given particular weight because
      of his unique perspective to the medical evidence that cannot be
      obtained from the objective medical findings alone or from reports of
      individual examinations, such as consultative examinations or brief
      hospitalizations. 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.

Id. (quotations and citations omitted, emphasis added). As in Robinson, the ALJ

in this case erred in rejecting the opinions of Ms. Daniell’s treating physicians in

favor of the opinion of the non-examining medical consultant without providing a

legally sufficient explanation for doing so. 2 See id.


2
      Although the ALJ stated that Ms. Daniell’s RFC assessment was consistent
with that of the consultative examiner, that doctor did not provide any assessment
                                                                      (continued...)

                                         -12-
      We note that in its response brief on appeal, the government attempts to

provide justification for the ALJ’s RFC determination by arguing that the treating

physician opinions were entitled to less weight because they conflicted with

Ms. Daniell’s own admissions that she could lift up to ten pounds and stand for

two to three hours. See Aplee. Br. at 29, 31. These alleged admissions are part of

a medical record from a consultative doctor’s examination that took place in June

2008—four months after the ALJ’s decision. 3 Although this new evidence is now

part of the record because Ms. Daniell submitted it to the appeals council, see

O’Dell v. Shalala, 44 F.3d 855, 858-59 (10th Cir. 1994), this new evidence cannot

be used to support the ALJ’s decision when it was not before the ALJ. See Haga

v. Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007) (“[T]his court may not create or

adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent

from the ALJ’s decision itself.”). This new evidence was considered by the

appeals council when it was reviewing the ALJ’s decision but the appeals council

did not discuss or rely on these alleged admissions. The appeals council

ultimately concluded that the new evidence did “not provide any new clinical or

2
 (...continued)
of Ms. Daniell’s functional capabilities. Accordingly, it appears as though the
ALJ relied exclusively on the medical consultant’s RFC assessment in making the
ultimate RFC determination. Compare Admin. R. at 17 with id. at 94-97.
3
       The alleged admissions are contained in the section of the medical record
titled “HISTORY OF FUNCTIONAL STATUS (as reported by claimant),” which
states that Ms. Daniell “can stand for 15 minutes at a time and a total of two to
three hours in an 8 hour period,” and “can lift 10 pounds.” Admin. R. at 185.

                                       -13-
laboratory findings which would warrant a change in the [ALJ’s] decision.”

See id. Because neither the ALJ nor the appeals council expressly relied on

Ms. Daniell’s alleged admissions or the rationale articulated by the government,

we cannot use this new evidence as a basis to affirm the ALJ’s decision. See

Haga, 482 F.3d at 1207-08; see also Robinson, 366 F.3d at 1084-85 (rejecting

district court’s attempt to supply possible reasons for giving less weight to or

rejecting the treating physician’s opinion, noting that “[t]he ALJ’s decision

should have been evaluated based solely on the reasons stated in the decision”).

On remand, the evidence may properly be considered.

      We conclude that the ALJ did not follow the correct legal standards in

considering the opinions of Ms. Daniell’s treating physicians and therefore the

ALJ erred in assessing Ms. Daniell’s RFC. We will not reach the remaining

issues raised by Ms. Daniell because they may be affected by the ALJ’s resolution

of this case on remand. We REVERSE the district court’s decision and

REMAND the case to the district court with instructions to remand the case to the

Commissioner for further proceedings in accordance with this decision.


                                                     Entered for the Court


                                                     Timothy M. Tymkovich
                                                     Circuit Judge




                                         -14-
