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

                             FOR THE TENTH CIRCUIT                            April 4, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
PATRICIA L. RINGGOLD,

      Plaintiff - Appellant,

v.                                                          No. 15-6145
                                                    (D.C. No. 5:14-CV-00524-W)
CAROLYN W. COLVIN, Acting                                  (W.D. Okla.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
                  _________________________________

      Patricia L. Ringgold appeals from the district court’s order affirming the

Commissioner’s decision denying her applications for Social Security disability and

Supplemental Security Income (SSI) benefits. After the agency denied her

applications she received a de novo hearing before an administrative law judge

(ALJ). The ALJ determined that she was not disabled. The Appeals Council denied



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
review, making the ALJ’s decision the Commissioner’s final decision. The district

court affirmed, and she appealed.

      “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.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.

2010). “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

“If the ALJ failed to apply the proper legal test, reversal is appropriate apart from a

lack of substantial evidence.” Snyder v. Shalala, 44 F.3d 896, 898 (10th Cir. 1995).

      The Commissioner follows a five-step sequential evaluation process to

determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988) (describing process). The claimant bears the burden of

establishing a prima facie case of disability at steps one through four. See id. at 751

n.2. If the claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains a sufficient RFC to

perform work in the national economy, given her age, education and work

experience. See id. at 751.

      At step one of the analysis, the ALJ found Ms. Ringgold had not engaged in

substantial gainful activity since October 11, 2009, the alleged onset date. At step

two, she had severe mental impairments, including generalized anxiety disorder,

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major depressive disorder, bipolar disorder, PTSD [post-traumatic stress disorder]

(provisional), and ADHD [attention deficit hyperactivity disorder] (provisional). But

at step three, she did not have an impairment or combination of impairments that met

or medically equaled the severity of a listed impairment.

      At step four, the ALJ determined that Ms. Ringgold had the RFC

      to perform a full range of work at all exertional levels, but with the
      following nonexertional limitations: [she] can understand, remember, and
      carry out simple, routine, and repetitive tasks. [She] can respond
      appropriately to supervisors, co-workers, and usual work situations, but
      have [only] occasional contact with the general public.
Aplt. App., Vol. II at 18.

      Given this RFC, Ms. Ringgold was unable to perform any of her past relevant

work. But at step five, considering her age, education, work experience, and RFC,

there were jobs that existed in significant numbers in the national economy that she

could perform. Therefore, the ALJ concluded, she was not disabled.

      Ms. Ringgold raises a single issue for our review. She contends that the ALJ

failed to properly evaluate the opinion of Stephanie Crall, Ph.D., a consulting

psychologist who examined Ms. Ringgold and prepared an opinion concerning her

mental capacity to perform work-related activities. Because we agree that the ALJ

failed to adequately evaluate the opinion, and because the error was not harmless, we

reverse and remand for further proceedings.



                                           3
       1. ALJ’s Evaluation of Dr. Crall’s Opinion

       Dr. Crall conducted an in-person mental status examination of Ms. Ringgold.

Her opinion is therefore considered an “examining medical-source opinion.” Chapo

v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012); see also 20 C.F.R.

§§ 404.1527(c)(1); 416.927(c)(1). Such opinions are “given particular consideration”

in that they are “presumptively entitled to more weight than a doctor’s opinion

derived from a review of the medical record.” Chapo, 682 F.3d at 1291. An

examining medical-source opinion “may be dismissed or discounted, of course, but

that must be based on an evaluation of all of the factors set out in the . . . regulations

and the ALJ must provide specific, legitimate reasons for rejecting it.” Id. (internal

quotation marks omitted). The relevant factors include:

       (1) the length of the treatment relationship and the frequency of
       examination; (2) the nature and extent of the treatment relationship,
       including the treatment provided and the kind of examination or testing
       performed; (3) the degree to which the physician’s opinion is supported by
       relevant evidence; (4) consistency between the opinion and the record as a
       whole; (5) whether or not the physician is a specialist in the area upon
       which an opinion is rendered; and (6) other factors brought to the ALJ’s
       attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003); Chapo, 682 F.3d at 1291

(noting analysis under these factors applies to examining medical-source opinions);

see also 20 C.F.R. §§ 404.1527(c); 416.927(c).

       The ALJ is not required to mechanically apply all of these factors in a given

case. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). It is sufficient if
                                        4
he “provide[s] good reasons in his decision for the weight he gave to the

[physician’s] opinions.” Id. But the duty to supply such reasons is the ALJ’s; neither

the Commissioner nor the courts may supply post-hoc reasons that the ALJ did not

provide. See Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

              A. Dr. Crall’s Opinion

       Upon examination, Dr. Crall found Ms. Ringgold to be alert, oriented, and

cooperative. Her speech was logical, goal-directed, and fully intelligible. Although

Ms. Ringgold stated that she was feeling some frustration, her affect was appropriate.

Dr. Crall found the information she provided valid and reliable.

       Ms. Ringgold told Dr. Crall that she experienced “a depressed mood on most

days, irritability, social withdrawal, loss of interest in previously enjoyed activities,

poor concentration, feelings of worthlessness, and suicidal ideation.” Aplt. App.,

Vol. III at 537. She experienced anxiety-related symptoms as well, including a

tendency to worry obsessively; an inability to control her worrying; nervousness;

vomiting; and picking at her skin when worried, which had resulted in the presence

of visible sores on her arms. She had been hyperactive as a child, and as an adult

continued to experience difficulty waiting her turn, talked excessively and loudly,

and had significant trouble sustaining attention. She took a number of medications

for these conditions, was not currently participating in outpatient counseling (though



                                             5
she had done so in the past), and had no history of inpatient psychiatric

hospitalizations. Ms. Ringgold also discussed her history of illegal drug use.

      Ms. Ringgold had performed many different jobs in the past. Her longest job

was for more than three years in a customer service position for Southwestern Bell.

“When asked to explain the reason for her current inability to obtain/maintain

employment, [she] cited the interference of emotional problems, verbal outbursts,

concentration impairments, and forgetfulness.” Id. at 538.

      Dr. Crall noted that Ms. Ringgold’s social isolation was “apparent.” Id.

Ms. Ringgold told Dr. Crall that “she was able to complete personal hygiene and

general housekeeping tasks independently, if not too depressed to do so.” Id.

(emphasis added).

      Turning to her diagnostic impressions, Dr. Crall noted that she had based them

on Ms. Ringgold’s clinical presentation and report of history and symptoms. She had

made no attempt to verify the history reported to her by Ms. Ringgold. Dr. Crall

diagnosed her with Major Depressive Order, Moderate; Bipolar Disorder (By

Report); Generalized Anxiety Disorder; Posttraumatic Stress Disorder (Provisional);

Attention-Deficit/Hyperactivity Disorder (Provisional); and Amphetamine Abuse (By

History).

      Dr. Crall stated that Ms. Ringgold’s “ability to engage in work-related mental

activities, such as understanding and remembering and to persist at such activities

                                           6
was likely adequate for simple and some complex tasks.” Id. at 540. But her mental

impairments and lack of education “likely interfered with her ability to obtain and

maintain competitive employment.” Id.

      Dr. Crall completed a “Medical Source Statement of Ability to do

Work-Related Activities (Mental).” Id. at 541. On this form she checked boxes

indicating that Ms. Ringgold would have “Mild” restrictions in understanding,

carrying out, and making judgments concerning simple instructions and decisions.

Id. But she would have “Marked” restrictions in her ability to understand, carry out,

and make judgments concerning complex instructions and decisions. Id.

      Turning to her social functioning, Dr. Crall opined that Ms. Ringgold would

have “Marked” restrictions in her ability to “Interact appropriately with the public,”

“Interact appropriately with supervisor(s),” “Interact appropriately with co-workers,”

and “Respond appropriately to usual work situations and to changes in a routine work

setting.” Id. at 542. She identified the factors supporting this assessment as

“Depression, anxiety, irritability, concentration problems, [and] history of verbal

outbursts.” Id.

             2. The ALJ’s Evaluation

      In his decision, the ALJ stated that he gave Dr. Crall’s opinion “little weight,”

thus effectively rejecting it. See Chapo, 682 F.3d at 1291 (noting that ALJ’s decision



                                           7
“according little weight to” physician’s opinion effectively rejected the opinion).

He discussed the opinion as follows:

      On February 7, 2013, the claimant underwent a consultative mental status
      examination by Stephanie Crall, Ph.D. The claimant reported that she was
      able to complete personal hygiene and general housekeeping tasks
      independently, if not too depressed. The claimant reported that she used
      methamphetamine in 2008 for six months (Exhibit 13F, p. 2). She was
      diagnosed with major depressive disorder, moderate; bipolar disorder (by
      report); generalized anxiety disorder; posttraumatic stress disorder
      (provisional); attention-deficit/hyperactivity disorder (provisional); and
      amphetamine abuse (by history).
      The claimant reported to Dr. Crall in February 2013 that she used
      methamphetamine in 2008 for six months. There was no mention of
      marijuana usage (Exhibit 13F, p. 2). However, the claimant reported to Dr.
      Repanshek in September 2010 that she used methamphetamine for the last
      three years and smoked marijuana daily (Exhibit 3F, p. 2). The claimant’s
      inconsistent statements diminish her credibility.
      ...
      On February 7, 2013, Dr. Crall provided that the claimant’s ability to
      engage in work-related activities, such as understanding and remembering
      and to persist at such activities was likely adequate for simple and some
      complex tasks. She has marked limitations in understand[ing],
      remembering and carrying out complex instructions; the ability to make
      judgments on complex work-related decisions; interacting appropriately
      with the public, supervisors, and with coworkers; and responding
      appropriately to usual work situations and to changes in routine work
      setting. She has mild limitations in understanding, remembering, and
      carrying out simple instructions; and the ability to make judgments on
      simple work-related decisions (Exhibit 13F). The Administrative Law
      Judge provides little weight to this opinion; however, the claimant would
      not be able to perform semi-skilled work. She would be able to sustain
      unskilled work based on consideration of the medical evidence of record
      and the claimant’s reported activities of daily living.
Aplt. App., Vol. II at 21, 23 (emphasis added).

                                           8
      In the last two sentences quoted above, the ALJ stated that Ms. Ringgold could

do unskilled work based on the medical evidence and her daily activities. We are

uncertain whether this statement was intended to provide a reason for assigning

Dr. Crall’s opinion little weight. If it was, this conclusory reasoning, which did not

explain how or why the specific limitations in Dr. Crall’s opinion are inconsistent

with the medical evidence or with Ms. Ringgold’s daily activities, was inadequate to

explain the ALJ’s rejection of the opinion.

      As noted, Dr. Crall opined that Ms. Ringgold had “marked” restrictions on

dealing with the public, co-workers, and supervisors, and in her ability to respond

appropriately to usual work settings and to changes in a routine work setting. The

ALJ’s RFC assessment limited Ms. Ringgold’s interaction with the public but

otherwise did not reflect these “marked” limitations.

      3. The Commissioner’s Arguments

      The Commissioner attempts to rescue the ALJ’s decision by reading into it

reasons for assigning Dr. Crall’s opinion little weight. We find the Commissioner’s

arguments, most of which rely on post-hoc reasoning, unpersuasive. First, she notes

the ALJ’s general statement “that he considered all the medical opinions under

20 C.F.R. § 404.1527, SSR 96-2p, 96-5p, and 96-6p.” Aplee Br. at 22. This, of

course, is mere boilerplate and cannot by itself satisfy the ALJ’s burden.



                                           9
      The Commissioner next relies on the ALJ’s recitation that Dr. Crall reported

that Ms. Ringgold could “complete personal hygiene and general housekeeping tasks

independently.” Aplt. App., Vol. II at 21. But the Commissioner leaves off

Dr. Crall’s qualification, “if not too depressed.” Id. More importantly, contrary to

the Commissioner’s argument, the ALJ did not make a further specific finding that

“Dr. Crall’s extreme limitations were not consistent with Ms. Ringgold’s activities.”

Aplee. Br. at 25. He just concluded that she would be able to sustain unskilled work.

      The Commissioner then cites Ms. Ringgold’s inconsistent statements to

Dr. Crall and to other providers about her drug use. Id. at 22. The ALJ noted these

inconsistent statements in his decision. Aplt. App., Vol. II at 21. But he did not

identify them as a reason for assigning little weight to Dr. Crall’s opinion. Instead,

he concluded that “[t]he claimant’s inconsistent statements diminish her credibility.”

Id. (emphasis added).

      The Commissioner next argues that Dr. Crall’s opinion is entitled to little

weight because “her impression of Ms. Ringgold was based on [Ms. Ringgold’s]

clinical presentation as well as her reported history and symptoms [and] she believed

Ms. Ringgold was being honest with her [but] she had made no attempt to verify the

history as described by Ms. Ringgold.” Aplee. Br. at 23-24 (internal quotation marks

omitted). The Commissioner may have a good point about the basis for Dr. Crall’s

opinion. But it is not a point that the ALJ made in assessing the opinion.

                                           10
      The same is true of several of the other observations in the Commissioner’s

brief: that “Dr. Crall’s mental status examination yielded mostly normal results,”

id. at 24; that “only a portion of Dr. Crall’s opinion was supported by the medical

evidence of record,” id.; and that “the more restrictive portions of Dr. Crall’s opinion

were inconsistent with the record as a whole,” id. These were points that the ALJ

perhaps could have made, but did not.

      The Commissioner also argues that Dr. Crall’s opinion was entitled to little

weight because “every other medical source opinion in the record, aside from

Dr. Crall, found that Ms. Ringgold was capable of functioning at a level greater than

the ALJ’s [RFC] assessment.” Id. at 25. Again, the ALJ did not expressly compare

Dr. Crall’s opinion concerning Ms. Ringgold’s social functioning to those of the

other physicians, so this also is a post hoc argument. Also, the reviewing physicians

who provided these opinions did not examine Ms. Ringgold, and Dr. Crall did, so the

ALJ needed to provide good reasons sufficient to overcome the presumption that

their opinions were entitled to less weight than Dr. Crall’s, see Chapo, 682 F.3d at

1291, which he did not.

      Finally, the Commissioner argues that because (1) the ALJ found that

Ms. Ringgold could perform unskilled work, (2) there are enough unskilled jobs in

the national economy, and (3) unskilled jobs involve working with “things” rather

than “people,” any failure to discuss her social limitations was essentially harmless.

                                           11
But although a limitation to unskilled work sometimes may account for a claimant’s

mental limitations, it typically does not. See id. at 1290 n.3 (noting that “[w]hile the

jobs cited by the VE happen to be unskilled, that just accounted for issues of skill

transfer, not impairment of mental functions—which are not skills but, rather, general

prerequisites for most work at any skill level” (internal quotation marks omitted)).

Here, the fact that Ms. Ringgold would be working with “things” does not clearly and

obviously eliminate the problem caused by her alleged marked inability to get along

with supervisors or co-workers. Nor did the ALJ make a finding to that effect.

      4. Context of the Error

      Finally, we find it helpful to mention three features that underline the

significance of the ALJ’s error and demonstrate why it was not harmless in the

particular context of this case. First, the ALJ sought Dr. Crall’s opinion only after a

prior remand from the Appeals Council. The Appeals Council ordered the ALJ to

obtain additional evidence concerning Ms. Ringgold’s medically determinable

impairments, including, “if warranted and available, appropriate consultative

examinations with psychological testing and medical source statements about what

the claimant can still do despite the impairments.” Aplt. App., Vol. II at 125. The

ALJ was also specifically instructed to “explain the weight given to [the] opinion

evidence.” Id. The Appeals Council thus expressed particular concern about the

need for an adequate development of the record in this case, with proper discussion

                                           12
of the medical opinion evidence, including opinion evidence concerning

Ms. Ringgold’s mental impairments.

      Second, at the hearing, the ALJ asked the vocational expert (VE) “[i]f

someone had marked limitations in the ability to interact appropriately with the

public/supervisors/coworkers, and to respond appropriately to usual work situations

and to . . . changes in the routine work setting, would there be any jobs available?”

Id. at 59-60. The VE responded that there would not. Id. But the ALJ did not

include these marked limitations in his RFC assessment, leading him to conclude that

Ms. Ringgold could perform work that existed in sufficient numbers in the national

economy.

      Finally, the record contains a significant amount of evidence of

Ms. Ringgold’s longstanding history of difficulties in remaining employed due to

conflicts with supervisors, co-workers, and the public. This evidence details

significant episodes where rage or other inappropriate emotional responses affected

her ability to perform job duties or to maintain employment. The ALJ found that

Ms. Ringgold’s statements concerning the limiting effects of her symptoms were not

entirely credible. But he did not discount the objective evidence of her work history,

or the reasons that she gave for leaving multiple jobs that she seems to have been

physically capable of performing. Although we may not reweigh this evidence, see,



                                          13
e.g., Hendron v. Colvin, 767 F.3d 951, 956 (10th Cir. 2014), it does help illustrate

why the ALJ’s error was not harmless in the context of this case.

      5. Conclusion

      The ALJ failed to properly evaluate Dr. Crall’s medical opinion. The error

was not harmless. The district court’s judgment in favor of the Commissioner is

therefore reversed, and this case is remanded to the district court with instructions to

remand to the Commissioner for further proceedings, including a proper evaluation of

Dr. Crall’s opinion, in accordance with this order and judgment.


                                            Entered for the Court


                                            John C. Porfilio
                                            Circuit Judge




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