                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         June 1, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    GREG SITSLER,

             Plaintiff-Appellant,

    v.                                                    No. 05-5197
                                                     (D.C. No. 04-CV-429-J)
    JO A NN E B. BA RN HA RT,                              (N.D. Okla.)
    Commissioner, Social Security
    Administration,

             Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HENR Y, BRISCO E, and M U RPH Y, Circuit Judges.




         Plaintiff-appellant Greg Sitsler appeals from the order entered by the

district court affirming the Social Security Commissioner’s decision denying his

applications for disability insurance benefits and supplemental security income

benefits under the Social Security Act. Exercising jurisdiction under 42 U.S.C.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
§ 405(g) and 28 U.S.C. § 1291, we reverse and remand for further proceedings.

                                          I.

      In a decision issued in D ecember 2003, the administrative law judge (ALJ)

denied plaintiff’s applications for benefits at step five of the five-step sequential

evaluation process for determining disability, finding that: (1) plaintiff suffered

from severe physical impairments as a result of his “status post heat stroke,” A plt.

App., Vol. II at 21; (2) plaintiff suffered from a severe mental impairment in the

form of an “adjustment disorder,” id.; (3) plaintiff did not retain the residual

functional capacity (RFC) to perform the heavy physical exertion requirements of

his past relevant work as a concrete finisher; but (4) plaintiff retained the RFC to

perform the physical exertion requirements of some medium work; and (5) based

on the responses to interrogatories submitted by the vocational expert, there are a

significant number of jobs in the national economy that plaintiff can perform.

      In M arch 2004, the Appeals Council denied plaintiff’s request for review of

the A LJ’s decision. Plaintiff then filed a complaint in the district court. In

September 2005, the district court entered an order and a related judgment

affirming the denial of plaintiff’s applications for benefits. This appeal followed.

                                          II.

      Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. See Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,

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“we neither reweigh the evidence nor substitute our judgment for that of the

agency.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799, 800 (10th Cir.

1991). Instead, we review the ALJ’s decision only “to determine whether the

factual findings are supported by substantial evidence in the record and whether

the correct legal standards were applied.” Doyal, 331 F.3d at 760.

      In this appeal, plaintiff claims the ALJ committed reversible error by

failing to properly consider the medical opinions of Dr. M inor W . Gordon,

the psychologist who performed two consultative examinations and diagnosed

plaintiff as suffering from a mental impairment. W e agree with plaintiff that the

ALJ erred by failing to explain in his decision why he rejected Dr. Gordon’s

opinions regarding the work limitations caused by plaintiff’s mental impairment.

W e therefore reverse the district court and remand this matter to the

Commissioner for further proceedings.

      A. Dr. G ordon’s O pinions.

      At the hearing before the A LJ, the medical expert called by the A LJ

testified that, in his opinion, plaintiff did not suffer from a medically

determinable physical impairment. The expert suggested, however, that plaintiff

may have a mental impairment. Based on the expert’s testimony and the

arguments of plaintiff’s counsel, the ALJ determined that plaintiff should be

evaluated by a psychologist, with the evaluation to include a M innesota

M ultiphasic Personality Inventory test (M M PI).

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      The psychological evaluation was subsequently performed by Dr. Gordon,

and Dr. Gordon prepared a report dated M arch 10, 2003. In his report,

Dr. Gordon diagnosed plaintiff as suffering from an “[a]djustment disorder with

depressed mood, moderate, secondary to his general physical condition to include

chronic pain.” Aplt. App., Vol. II at 232. Dr. Gordon also completed a “M ental

M edical Source Statement” for plaintiff. In his statement, Dr. Gordon opined that

plaintiff’s mental impairment had resulted in a “M oderate Limitation” on

plaintiff’s “ability to maintain attention and concentration for extended periods.”

Id. at 235. According to Dr. Gordon’s statement, this meant that plaintiff’s

mental impairment would “[a]ffect[] but . . . not preclude [his] ability to perform

basic work functions.” Id. at 234.

      In a letter dated April 10, 2003 to vocational expert Cheryl M allon, the ALJ

subsequently asked M s. M allon to assume a hypothetical person with the same

general characteristics and limitations as plaintiff, which limitations included the

“need[] to avoid mandatory attention and concentration for extended periods.” Id.

at 100. In a letter dated M ay 1, 2003, M s. M allon responded to the ALJ’s

hypothetical question, stating that such a person could perform four different jobs

that exist in the national economy. Id. at 102.

      After receiving copies of M s. M allon’s letter and Dr. Gordon’s

psychological evaluation, plaintiff’s counsel sent a letter to the ALJ in which he

objected to the limited scope of D r. Gordon’s evaluation. Specifically, plaintiff’s

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counsel pointed out that Dr. Gordon had not administered an M M PI test as part of

his evaluation. Id. at 108. Although there is no correspondence in the record

setting forth the ALJ’s response to plaintiff’s counsel’s objection, the ALJ

apparently agreed w ith plaintiff’s counsel’s assertion that Dr. Gordon’s first

evaluation was deficient, because arrangements were subsequently made for

Dr. G ordon to perform a second psychological evaluation.

      As part of his second psychological evaluation, Dr. Gordon administered an

M M PI test, and he also prepared a w ritten report dated September 15, 2003. In

his report, Dr. Gordon once again diagnosed plaintiff as suffering from an

“[a]djustment disorder with depressed mood.” Id. at 282. However, while

Dr. G ordon assessed this disorder as being “moderate” in his first report, id. at

232, he assessed the disorder as being “moderate to severe” in his second report,

id. at 282. In addition, as part of the second evaluation, Dr. Gordon also prepared

another “M ental M edical Source Statement.” In his statement, Dr. Gordon

reiterated his prior opinion that plaintiff’s mental impairment had resulted in a

“M oderate Limitation” on plaintiff’s “ability to maintain attention and

concentration for extended periods.” Id. at 284. Dr. Gordon also added

additional limitations that were not included in his first report, however, and the

new limitations included a “M oderate Limitation” rating for: (1) “[t]he ability to

perform activities within a schedule, maintain regular attendance, and be punctual

within customary tolerances,” id.; (2) “[t]he ability to make simple work related

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decisions,” id.; and (3) “[t]he ability to complete a normal workday and

workweek without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest

periods,” id. 1

       After Dr. Gordon performed his second evaluation and issued his second

report, the ALJ did not submit a new hypothetical question to a vocational expert.

Instead, in December 2003, the A LJ issued his written decision denying plaintiff’s

applications for benefits, and the ALJ addressed both of Dr. Gordon’s reports in

his decision. The ALJ discussed the reports as follow s:

       The claimant underwent consultative psychological evaluation on
       M arch 3, 2003, by M inor Gordon, Ph.D. Dr. Gordon noted after
       mental status examination that the claimant appeared to have an
       adjustment disorder secondary to his general physical condition to
       include chronic pain. . . . Dr. Gordon also completed a medical
       course statement indicating virtually no limitations in mental
       functioning, with the exception of a moderate limitation in the
       claimant’s ability to maintain attention and concentration for
       extended periods of time . . . .

       The claimant underwent another evaluation by Dr. Gordon on
       September 15, 2003, specifically to undergo personality testing. The
       claimant was administered the [M M PI] and produced a valid
       protocol. Dr. Gordon noted that the claimant’s profile revealed
       preoccupation with bodily function and did not feel the claimant was
       suffering from a true conversion disorder, but most likely had a fear
       of being misunderstood. Dr. Gordon stated that the claimant was



1
       Dr. Gordon also added a “M oderate Limitation” rating for “[t]he ability to
set realistic goals or make plans independently of others.” A plt. App., Vol. II
at 285. Plaintiff has not asserted any error with regard to the ALJ’s treatment of
this limitation, however, and we therefore do not address it.

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       preoccupied and quite concerned about being perceived by others as
       malingering or out for some type of secondary gain. . . .

                 ....

       . . . In both of Dr. Gordon’s reports, the claimant stated that he had
       never sought treatment from a mental health professional. Dr.
       Gordon noted that the claimant had been prescribed Prozac in the
       past, but did not take it on any type of consistent basis . . . .

Id. at 22, 23.

       W e note two things about the A LJ’s discussion of D r. Gordon’s

evaluations. First, the ALJ failed to mention that Dr. Gordon stated in his second

report that it did not appear to him that plaintiff was malingering or out for some

type of secondary gain. Id. at 281. Second, and more importantly for purposes of

this appeal, while the ALJ noted the limitation that Dr. Gordon included in his

first medical source statement regarding plaintiff’s ability to maintain attention

and concentration, the ALJ did not discuss the additional limitations that

Dr. Gordon set forth in his second medical source statement. M oreover, the latter

omission was also carried over to the ALJ’s RFC assessment, as the ALJ only

limited plaintiff from performing jobs that require “mandatory attention and

concentration for extended periods.” Id. at 23.

       As noted above, in assessing plaintiff’s RFC, the ALJ did not submit a new

hypothetical question to a vocational expert. Instead, the ALJ relied on the

response that he had previously received from vocational expert Cheryl M allon,

id. at 24-25, and that response was based on a hypothetical question that did not

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include any of the mental impairment limitations that are set forth in D r.

Gordon’s second report, id. at 100, 102. Indeed, M s. M allon’s response was

prepared several months before Dr. Gordon performed his second psychological

evaluation.

      W e agree with plaintiff that the ALJ committed reversible error by failing

to explain in his decision why he rejected the additional limitations that

Dr. Gordon included in his second medical source statement. Soc. Sec. R. 96-8p

specifically provides that “[t]he RFC assessment must always consider and

address medical source opinions. If the RFC assessment conflicts with an opinion

from a medical source, the adjudicator must explain why the opinion was not

adopted.” 1996 W L 374184, at *7 (emphasis added); see also Conrad v.

Barnhart, 434 F.3d 987, 991 (7th Cir. 2006) (“SSR 96-8p requires that medical

source opinions must always be considered and addressed by the ALJ in the RFC

assessment, and if it conflicts with the ALJ’s conclusions then the A LJ must

explain why it was not adopted.”). W e also note that Soc. Sec. R. 96-5p is on

point for purposes of this case, as it provides as follow s:

      A medical source’s statement about what an individual can still do is
      medical opinion evidence that an adjudicator must consider . . . when
      assessing an individual’s RFC. . . . Adjudicators must weigh medical
      source statements under the rules set out in 20 CFR 404.1527 and
      416.927, providing appropriate explanations for accepting or
      rejecting such opinions.

1996 W L 374183, at *5 (emphasis added).



                                           -8-
      Here, there is no question that Dr. Gordon’s second medical source

statement constitutes an opinion from a medical source. See 20 C.F.R.

§ 404.1513(a)(2) (stating that “[a]cceptable medical sources [include] . . .

[l]icensed or certified psychologists”); id., § 404.1527(a)(2) (stating that

“[m]edical opinions are statements from physicians and psychologists or other

acceptable medical sources that reflect judgments about the nature and severity of

your impairment(s), including your . . . mental restrictions”); Soc. Sec. R.

96-5p, 1996 W L 374183, at *4 (“M edical source statements are medical opinions

submitted by acceptable medical sources, including . . . consultative examiners,

about what an individual can still do despite a severe impairment(s), in particular

about an individual’s physical or mental abilities to perform work-related

activities on a sustained basis.”) (footnote omitted).

      Because the ALJ’s RFC assessment did not include the additional

limitations imposed by Dr. Gordon in his second report, it is also clear that the

A LJ’s RFC assessment conflicted with Dr. Gordon’s opinions. As a result, we

conclude that the ALJ committed reversible error by failing to explain in his

decision why he did not adopt Dr. Gordon’s opinions. The ALJ’s error in this

regard is especially significant given that Dr. Gordon’s opinions were

uncontroverted. See Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[I]n

addition to discussing the evidence supporting his decision, the A LJ also must

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

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significantly probative evidence he rejects.”); Ham lin v. Barnhart, 365 F.3d 1208,

1215, 1219 (10th Cir. 2004) (“An ALJ must evaluate every medical opinion in the

record,” and an “ALJ may not pick and choose which aspects of an uncontradicted

medical opinion to believe, relying on only those parts favorable to a finding of

nondisability”); see also Drapeau v. M assanari, 255 F.3d 1211, 1214 (10th Cir.

2001) (“[W]hen . . . an ALJ does not provide any explanation for rejecting

medical evidence, we cannot meaningfully review the ALJ’s determination.”).

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

REM ANDED to the district court with instructions to remand the case to the

Commissioner for further proceedings before the ALJ. Specifically, the ALJ shall

explain in writing why he did not adopt the additional limitations that Dr. Gordon

included in his second medical source statement. Alternatively, the ALJ may

reassess plaintiff’s RFC and, if necessary, submit a new hypothetical question to a

vocational expert. W e emphasize that no particular result is dictated by our

remand.


                                                    Entered for the Court


                                                    M ichael R. M urphy
                                                    Circuit Judge




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