                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       October 16, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
SHANAN E. WILSON,

             Plaintiff-Appellant,

v.                                                          No. 13-5016
                                                  (D.C. No. 4:11-CV-00615-FHM)
CAROLYN W. COLVIN, Acting                                   (N.D. Okla.)
Commissioner of Social Security
Administration,*

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before PHILLIPS and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Shanan E. Wilson appeals from a district court order affirming the

Commissioner’s denial of her application for Supplemental Security Income (SSI)


*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we

reverse and remand for further proceedings before the administrative law judge

(ALJ).

                                             I.

         Ms. Wilson applied for SSI benefits, alleging disability beginning in July

2005. At step two of the sequential evaluation process, see Wall v. Astrue, 561 F.3d

1048, 1052 (10th Cir. 2009), the ALJ found that she has the severe impairments of

major depressive disorder, generalized anxiety disorder, personality disorder, asthma,

obesity, and degenerative disc disease of the lumbar spine. At step three, he found

that she does not have impairments, alone or in combination, that meet or medically

equal the listings. The ALJ determined her residual function capacity (RFC) as

follows:

         [T]he claimant has the residual functional capacity to perform light
         work, which includes lifting and/or carrying 20 pounds occasionally and
         10 pounds frequently; standing and/or walking (with normal breaks) for
         a total of 6 hours in an 8-hour workday; and sitting (with normal breaks)
         for a total of 6 hours in an 8-hour workday. She has been diagnosed
         with an affective disorder and is limited to simple, unskilled work,
         superficial contact with co-workers and supervisors, minimal contact
         with the public, but is able to adapt to work situations. The claimant is
         afflicted with symptoms from a variety of sources, to include mild to
         moderate, chronic pain, that are sufficiently severe as to be noticeable to
         her at all times; but, that nonetheless the claimant would be able to
         remain attentive and responsive in a work setting, and could carry out
         normal work assignments satisfactorily. The claimant takes medication
         for relief of her symptoms; however, those medications do not preclude
         her from functioning at her residual functional capacity and she would
         remain reasonably alert to perform required functions in the work
         setting.


                                            -2-
Aplt. App., Vol. 2 at 15 (citation omitted). The ALJ found at step four that

Ms. Wilson could not perform her past relevant work with this RFC. But he

determined at step five that there are jobs in the national economy that she could

perform. Thus, the ALJ found that Ms. Wilson was not disabled. The Appeals

Council denied her request for review. Ms. Wilson filed an appeal in the district

court, and a magistrate judge affirmed the Commissioner’s decision.1

                                          II.

      Ms. Wilson raises three issues on appeal: (1) the ALJ failed to perform a

proper determination at step five; (2) the ALJ failed to properly consider the medical

source statements; and (3) the ALJ’s credibility determination is faulty. “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.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). Because we

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

opinion of a consultative examiner, we reverse and remand for further proceedings.

                                          A.

      “It is the ALJ’s duty to give consideration to all the medical opinions in the

record. He must also discuss the weight he assigns to such opinions.”

Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citation omitted).

But an ALJ’s error in failing to weigh a medical opinion can be harmless. If the
1
      The parties consented to proceed before a magistrate judge in the district court.


                                         -3-
ALJ’s RFC is “generally consistent” with the findings in an opinion, or if the RFC is

“more favorable” to the claimant than the opinion’s findings, then “[t]here is no

reason to believe that a further analysis or weighing of [the] opinion could advance

[the claimant’s] claim of disability.” Id. at 1163. In such a case, the error is

harmless because the claimant cannot show that she was prejudiced by the ALJ’s

failure to give greater weight to the opinion. See id. at 1162–63.

      Ms. Wilson does not contend that the ALJ failed to discuss the medical

opinions in the record. She asserts that the ALJ failed to explain what weight he

gave to each of them. The ALJ said the following:

             As for the opinion evidence, the record does not contain any
      opinions from treating or non-treating physicians indicating that the
      claimant is disabled, or has medical or functional limitations greater
      than those determined in this decision. Further, the residual functional
      capacity conclusions reached by the physicians employed by the State
      Disability Determinations Services are consistent with the medical
      evidence of record. Although those physicians were non-examining,
      and therefore their opinions do not as a general matter deserve as much
      weight as those of examining or treating physicians, those opinions do
      deserve some weight as they are experts in the Social Security program,
      and their opinions were not contradicted.

Aplt. App., Vol. 2 at 20.

      Initially, it is clear that the ALJ assigned “some weight” to the opinions of the

non-examining state agency physicians. He did not, however, indicate what weight

he assigned to any other opinion in the record. The Commissioner contends it was

unnecessary for the ALJ to weigh the other opinions because the ALJ stated that “the

record does not contain any opinions from treating or non-treating physicians


                                          -4-
indicating that the claimant is disabled, or has medical or functional limitations

greater than those determined in this decision.” Id. “When the ALJ does not need to

reject or weigh evidence unfavorably in order to determine a claimant’s RFC, the

need for express analysis is weakened.” Keyes-Zachary, 695 F.3d at 1162 (internal

quotation marks omitted). Ms. Wilson disagrees, asserting that the ALJ’s RFC is less

favorable to her than the findings of Dr. Denise LaGrand, a consultative examiner

who performed a psychological assessment of Ms. Wilson.

      Dr. LaGrand completed a mental RFC form evaluating Ms. Wilson’s ability to

do work-related activities. As relevant here, she opined that Ms. Wilson has

moderate restrictions related to her ability to (1) interact appropriately with

supervisors; (2) respond appropriately to usual work situations; and (3) respond

appropriately to changes in a routine work setting. By comparison, the relevant part

of the ALJ’s RFC provides: “[Ms. Wilson] has been diagnosed with an affective

disorder and is limited to simple, unskilled work, superficial contact with co-workers

and supervisors, minimal contact with the public, but is able to adapt to work

situations.” Aplt. App., Vol. 2 at 15. Ms. Wilson notes that, rather than including

limitations in her RFC related to her ability to respond appropriately to usual work

situations and changes in a routine work setting, the ALJ instead affirmatively stated

that she “is able to adapt to work situations.” Id. Therefore, she contends that she

was prejudiced by the ALJ’s failure to weigh Dr. LaGrand’s opinion because it is not




                                          -5-
clear that giving it greater weight “would not have helped her.” Keyes-Zachary,

695 F.3d at 1163.

      Ms. Wilson also argues that the ALJ erred by failing to explain why he

appeared to adopt one moderate restriction from Dr. LaGrand’s opinion with regard

to her ability to interact appropriately with supervisors, while not including the

doctor’s other two moderate restrictions in her RFC.2 In Haga v. Astrue, we held that

“[a]n ALJ is not entitled to pick and choose through an uncontradicted medical

opinion, taking only the parts that are favorable to a finding of nondisability,”

without explaining his reasoning. 482 F.3d 1205, 1208 (10th Cir. 2007); see also

Frantz v. Astrue, 509 F.3d 1299, 1302–03 (10th Cir. 2007) (reversing and remanding

based on Haga where the ALJ accepted some of the moderate restrictions in a mental

RFC form but omitted other moderate restrictions from the RFC without discussion).

      The Commissioner responds that the ALJ’s RFC is consistent with all of

Dr. LaGrand’s moderate restrictions in the mental RFC form. The Commissioner

first points to Dr. LaGrand’s statement in her report accompanying the form that

Ms. Wilson’s “‘ability to perform adequately in most job situations, handle the stress

of a work setting and deal with supervisors is estimated to be low average.’” Aplee.

Br. at 17 (quoting and adding emphasis to LaGrand report, Aplt. App., Vol. 3 at 480).
2
       Ms. Wilson argued in her opening brief that the ALJ omitted all of
Dr. LaGrand’s moderate restrictions from Ms. Wilson’s RFC. But in her reply brief
she concedes that the RFC includes a limitation regarding her ability to relate to
supervisors that is generally consistent with Dr. LaGrand’s opinion. See Aplt. Reply
Br. at 9. We agree.


                                          -6-
But the ALJ did not state in Ms. Wilson’s RFC that she has a “low average” ability to

respond appropriately to usual work situations and changes in a routine work setting.

Rather, he placed no qualification on her ability “to adapt to work situations.” Aplt.

App., Vol. 2 at 15.

       The Commissioner also emphasizes the definition of “moderate” in the mental

RFC form, which provides that “moderate” means “[t]here is more than a slight

limitation in this area but the individual is still able to function satisfactorily.” Id.,

Vol. 3 at 483. The Commissioner asserts that, “[g]iven the definition[] of

‘moderate’. . . set forth on the form itself, the limitations the ALJ specified are

entirely consistent with the consultative examiner’s medical source statement form.”

Aplee. Br. at 17. The Commissioner thus maintains that the ALJ incorporated

Dr. LaGrand’s moderate restrictions regarding Ms. Wilson’s ability to respond

appropriately to usual work situations and adapt to changes in work settings by

stating in her RFC that she “is able to adapt to work situations.” Aplt. App., Vol. 2 at

15. In other words, the doctor’s “moderate” restrictions mean that Ms. Wilson has no

limitation in her ability to perform in these areas.

       We rejected the Commissioner’s argument in Haga. As in this case, the ALJ

in Haga did not expressly reject a medical opinion, but he did not include in the

claimant’s RFC all of the moderate restrictions stated in it. See 482 F.3d at 1208. In

an effort to explain this omission, the Commissioner pointed to the definition of

“moderate” in the mental RFC form, noting “that a ‘moderate’ impairment . . . means


                                            -7-
that the ‘individual is still able to function satisfactorily.’” Id. We disagreed with

the Commissioner’s assertion that “a moderate impairment is . . . the same as no

impairment at all.” Id. We concluded that the doctor in Haga “clearly intended to

indicate impairments on [the mental RFC] form.” Id. And because the ALJ’s RFC

included limitations that were consistent with some of the moderate impairments in

the medical opinion, we also said it was clear that the ALJ did not equate a

“moderate” impairment with no impairment at all. Id. We therefore reversed and

remanded because “the ALJ should have explained why he rejected four of the

moderate restrictions on [the doctor’s] RFC assessment while appearing to adopt the

others.” Id.

      The Commissioner does not address Haga other than to assert that it is

distinguishable because “[t]he impairments and limitations the ALJ found are entirely

consistent with, and account for and encompass, the limitations Dr. LaGrand noted.”

Aplee. Br. at 21 n.7. But the Commissioner’s consistency argument is based on the

definition of “moderate” in the mental RFC form—the same contention that we

rejected in Haga. We therefore agree with Ms. Wilson that the ALJ’s RFC, as stated

in the decision, is not generally consistent with Dr. LaGrand’s medical opinion, and

the ALJ’s failure to weigh that opinion and explain why he accepted some, but not

all, of its moderate restrictions, was not harmless error. See Haga, 482 F.3d at 1208;

Keyes-Zachary, 695 F.3d at 1162-63. We reverse and remand to the ALJ for further

consideration of Dr. LaGrand’s opinion. If the ALJ intended to omit from


                                          -8-
Ms. Wilson’s RFC the doctor’s moderate restrictions regarding her ability to adapt to

a usual work setting and any changes in it, the ALJ should explain his reasons for

doing so, as well as the weight he assigns to the opinion. If the ALJ intended to

adopt these moderate restrictions from Dr. LaGrand’s opinion, he should revise

Ms. Wilson’s RFC to include them.

                                           B.

      We do not reach Ms. Wilson’s other claims at this time. She contends that the

ALJ erred at step five by posing a hypothetical question to the vocational expert that

did not include all of Dr. LaGrand’s moderate restrictions. See Hargis v. Sullivan,

945 F.2d 1482, 1492 (10th Cir. 1991) (holding that “testimony elicited by

hypothetical questions that do not relate with precision all of a claimant’s

impairments cannot constitute substantial evidence to support the [Commissioner’s]

decision” (internal quotation marks and alteration omitted)). It is premature for the

court to address this claim as its resolution may be affected by the ALJ’s further

evaluation of Dr. LaGrand’s opinion on remand.

      Ms. Wilson also asserts error in the ALJ’s credibility determination. We note

that the parties disagree as to what the ALJ’s specific reasons were in support of his

finding that Ms. Wilson was not fully credible. We have said that “findings as to

credibility should be closely and affirmatively linked to substantial evidence,” so that

a reviewing court is not “left to speculate what specific evidence led [to the ALJ’s

credibility determination].” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)


                                          -9-
(internal quotation marks and brackets omitted). Although an ALJ need not do a

“formalistic factor-by-factor recitation of the evidence,” he should “set[] forth the

specific evidence he relies on in evaluating the claimant’s credibility.”

Keyes-Zachary, 695 F.3d at 1167. On remand, we invite the ALJ to clarify the

specific reasons supporting his credibility determination.

                                          III.

      The judgment of the district court is reversed. We remand this case to the

district court with instructions to remand to the Commissioner for further

proceedings consistent with this order and judgment.

                                                  Entered for the Court


                                                  Gregory A. Phillips
                                                  Circuit Judge




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