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

                           FOR THE TENTH CIRCUIT                        April 10, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ELOSIA R. CROWDER,

             Plaintiff - Appellant,

v.                                                         No. 13-1222
                                                 (D.C. No. 1:12-CV-00735-CMA)
CAROLYN W. COLVIN, Acting                                   (D. Colo.)
Commissioner of the Social Security
Administration,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.


      Elosia R. Crowder challenges the denial of her application for supplemental

security income benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g), we remand for reconsideration of certain opinion evidence.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                     Background

      Employing the five-step sequential evaluation process, see 20 C.F.R.

§ 416.920, at step one the administrative law judge (ALJ) found that Ms. Crowder

was not engaging in substantial gainful activity. At step two, he assessed her with

the severe impairments of asthma, anxiety disorder, and depression. He then found at

step three that her impairments did not meet or equal a listing because she had no

episodes of decompensation and only moderate difficulties in activities of daily

living; social functioning; and concentration, persistence, and pace. At step four, the

ALJ assessed Ms. Crowder’s residual functional capacity (RFC) as “a full range of

work at all exertional levels but with the following non-exertional limitations: the

claimant is limited to unskilled work in a low stress environment where there is not

frequent or prolonged contact with co-workers, supervisors, or the general public and

where there is no concentrated exposure to dust or fumes.” Aplt. App., Vol. 2 at 14.

Because she did not have any past relevant work to consider, the ALJ continued to

step five, concluding that there were jobs in the national economy that she could

perform. Accordingly, he found her to be not disabled and denied her application for

benefits. The Appeals Council denied review and the district court affirmed.

                                       Analysis

      “We independently review the Commissioner’s decision to determine whether

it is free from legal error and supported by substantial evidence.” Chapo v. Astrue,

682 F.3d 1285, 1287 (10th Cir. 2012) (internal quotation marks omitted). On appeal,


                                         -2-
Ms. Crowder focuses on the ALJ’s analysis of three medical-source opinions:

examining licensed psychologist Jose Vega, Ph.D.; treating licensed clinical social

worker Maria Cramer; and examining physician Charlene Borja, D.O. We conclude

that reversal is required because the ALJ did not properly evaluate the opinions of

Dr. Vega and Ms. Cramer.

                                       Dr. Vega

      Dr. Vega examined Ms. Crowder at her counsel’s request. He provided a

written report of his examination and a RFC form opining that Ms. Crowder has

moderate-to-marked limitations in seventeen of twenty evaluation areas, including, as

summarized by the ALJ, “adaptation, social interaction, concentration, persistence,

and pace, and understanding and memory.” Aplt. App., Vol. 2 at 17. The ALJ

effectively rejected Dr. Vega’s findings, giving them “very little weight because they

are internally inconsistent, the exam was undertaken at the request of the claimant’s

representative, and there is no treating relationship between the examiner and the

claimant.” Id.; see also Chapo, 682 F.3d at 1291 (equating “according little weight

to” with “effectively rejecting” a medical opinion). But none of the reasons given by

the ALJ support effectively rejecting Dr. Vega’s opinion.

      The ALJ’s first reason for rejecting Dr. Vega’s findings is that “they are

internally inconsistent.” Aplt. App., Vol. 2 at 17. The ALJ then further explained:

“With respect to the internal inconsistency of these results, the evaluation form

completed by the examiner assigns double values to each quality so that the claimant


                                         -3-
has numerous factors assessed as both moderate and marked at the same time, which

prevents an effective evaluation of the severity of the claimant’s limitations.” Id.

      Dr. Vega circled both “moderate” and “marked” and drew an arrow pointing

from “moderate” to “marked.” As Ms. Crowder asserts, this is easily interpreted as

an opinion of “moderate-to-marked” limitations. See Chapo, 682 F.3d at 1289-90

(noting that Dr. Vega opined that claimant had “[m]oderate to marked limitation” in

some areas and “[m]arked to extreme limitation” in others). At the very least, it is an

opinion that Ms. Crowder suffered from moderate limitations in these categories.

Under these circumstances, the fact that Dr. Vega did not choose either “moderate”

or “marked” is not an adequate ground to reject the opinion entirely.1

      The Commissioner suggests that we uphold the decision under a different

interpretation of “internally inconsistent,” pointing out variances between Dr. Vega’s

written report and his mental RFC findings. Any such inconsistencies, however, go

beyond the ALJ’s stated explanation, which focuses on Dr. Vega’s method of

completing the RFC form. “[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.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007).

      Next, the ALJ stated that “the exam was undertaken at the request of the

claimant’s representative.” Aplt. App., Vol. 2 at 17. This implies that a consulting
1
      This is not to say that we encourage Dr. Vega’s approach. A more precise
evaluation of a claimant’s RFC is likely to be of more value than a broader,
unspecific opinion.


                                          -4-
examiner’s opinion is necessarily less trustworthy when it is sought or obtained by

the claimant, a position that this court long ago rejected in the context of treating

physicians’ opinions. See McGoffin v. Barnhart, 288 F.3d 1248, 1253 (10th Cir.

2002); Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987). In Frey, for example, this

court held that an ALJ could not reject a treating physician’s opinion on the ground

that “a family doctor naturally advocates his patient’s cause” because “[i]t is a

conclusory statement that contradicts our established legal rule, without suggesting

some exceptional basis in the facts of this case.” 816 F.2d at 515 (internal quotation

marks omitted). By the same logic, rejecting Dr. Vega’s opinion on the ground that

the opinion was obtained by Ms. Crowder’s counsel fails to follow the established

legal rules for weighing medical opinions. See 20 C.F.R. § 416.927(c) (setting forth

factors for weighing medical opinions). And the record reveals no “exceptional basis

in the facts of this case” for ignoring the general rule. Frey, 816 F.2d at 515.

      Finally, the ALJ stated that there was no treating relationship between

Dr. Vega and Ms. Crowder. Although the lack of a treating relationship is relevant to

the weight to be afforded an opinion, it is not grounds for simply rejecting an

opinion. See Chapo, 682 F.3d at 1291. In Chapo, in which Dr. Vega offered an

opinion on behalf of a different claimant, “the ALJ’s justification for effectively

rejecting . . . Dr. Vega’s unopposed findings” was that “‘at the time of the hearing,

Dr. Vega had been in a professional relationship with [the claimant] for merely two

months.’” Id. (quoting the administrative record). This court held:


                                          -5-
      This may be a valid reason not to accord Dr. Vega’s findings the
      conclusive weight of a treating medical-source opinion, but that just
      effectively reduces them to the status of an examining-source opinion; it
      is not by itself a basis for rejecting them—otherwise the opinions of
      consultative examiners would essentially be worthless, when in fact
      they are often fully relied on as the dispositive basis for RFC findings.
      . . . An opinion found to be an examining rather than treating
      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. The ALJ did not do that here—the ALJ’s assessment
      simply ended with the recognition of Dr. Vega’s limited professional
      relationship with [the claimant].

Id. (footnote, citation, and internal quotation marks omitted). Accordingly, rather

than rejecting Dr. Vega’s opinion because he has not treated Ms. Crowder, the ALJ

must apply the regulations and weigh the opinion under the standards for considering

the opinion of a non-treating, but examining, medical source. See id. at 1291, 1292.2

                                     Ms. Cramer

      Ms. Cramer was one of Ms. Crowder’s therapists. She opined in a RFC form

that Ms. Crowder has marked limitations in two areas: “[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 or
2
       Chapo also noted that “Dr. Vega’s detailed findings are not opposed by those
of any other medical source, much less a treating source to whom they could be
presumptively subordinated.” 682 F.3d at 1291. Here, Dr. Vega’s findings are not
inconsistent with much of the medical evidence of record, including counseling and
treatment notes, the opinion of another consulting psychologist, and the RFC
assessments of licensed clinical social worker Maria Cramer. The only flatly
contradictory evidence is the opinion of an agency reviewer who “didn’t really see
many difficulties psych-wise,” Aplt. App., Vol. 2 at 236, a conclusion that is not
supported by the record.


                                         -6-
length of rest periods,” and “[t]he ability to interact appropriately with the general

public.” Aplt. App., Vol. 2 at 269. She also assessed Ms. Crowder with moderate

limitations in several areas, including “[t]he ability to understand and remember

detailed instructions,” “[t]he ability to carry out detailed instructions,” “[t]he ability

to maintain attention and concentration for extended periods,” and “[t]he ability to

accept instructions and respond appropriately to criticism from supervisors.” Id. at

268-69 (emphasis omitted).

       The ALJ stated that because a licensed clinical social worker is not an

acceptable medical source, he gave Ms. Cramer’s opinion either “little weight” or

“no weight.” Id. at 16. He then stated, “However, the undersigned considered this

information to help the undersigned understand how the individual’s impairments

affect the claimant’s ability to work.” Id. Although this evaluation is partially

consistent with the appropriate legal standards for evaluating “other source”

evidence, it does not entirely conform to those standards.

       A licensed clinical social worker is not an “acceptable medical source,” but

instead is an “other source.” 20 C.F.R. § 416.913(a), (d). But that does not mean an

ALJ can ignore a licensed clinical social worker’s opinion entirely. “[W]e may use

evidence from ‘other sources,’ . . . to show the severity of the individual’s

impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p,

2006 WL 2329939, at *2 (Aug. 9, 2006); see also 20 C.F.R. § 416.913(d).

       With the growth of managed health care in recent years and the
       emphasis on containing medical costs, medical sources who are not

                                           -7-
      “acceptable medical sources,” such as nurse practitioners, physician
      assistants, and licensed clinical social workers, have increasingly
      assumed a greater percentage of the treatment and evaluation functions
      previously handled primarily by physicians and psychologists.
      Opinions from these medical sources, who are not technically deemed
      “acceptable medical sources” under our rules, are important and should
      be evaluated on key issues such as impairment severity and functional
      effects, along with the other relevant evidence in the file.

Soc. Sec. Rul. 06-03p, 2006 WL 2329939 at *3 (emphasis added). The Social

Security Administration has directed ALJs to apply the same factors to opinion

evidence from “other sources” as they do to opinion evidence from “acceptable

medical sources,” including the length and frequency of the treatment relationship,

the opinion’s consistency with other evidence, the degree of support offered for the

opinion, how well the source explains the opinion, whether the source is a specialist,

and “[a]ny other factors that tend to support or refute the opinion.” Id. at *4-5.

      It appears that the ALJ recognized that Ms. Cramer could not offer a medical

diagnosis to establish an impairment because she is not an “acceptable medical

source.” See 20 C.F.R. § 416.913(a). And the ALJ also apparently recognized that

he should not entirely dismiss Ms. Cramer’s opinion, stating that he considered her

opinion to help him understand how Ms. Crowder’s impairments affect her ability to

work. But there is little in the decision other than a passing reference that “the

treatment notes do indicate that Ms. Cramer met with the claimant on several

occasions” Aplt. App., Vol. 2 at 16, to show that the ALJ considered the prescribed

factors in weighing this “other source” opinion. Rather, it appears that the primary



                                          -8-
(and perhaps overriding) factor for the ALJ was that she was not an “acceptable

medical source.”

      The Commissioner asserts that the ALJ effectively incorporated Ms. Cramer’s

opinion into the RFC. The ALJ did limit Ms. Crowder to simple work in a low stress

environment with no frequent or prolonged contact with co-workers, supervisors, or

the general public. These restrictions, however, account for only one of the two areas

that Ms. Cramer assessed with “marked” limitations and only some of the areas that

she assessed with “moderate” limitations. The RFC did not address the “marked”

limitation in concentration, persistence, and pace or the “moderate” limitation in

maintaining attention and concentration for extended periods. And there is no

explanation why the ALJ would accept one of the “marked” limitations identified by

Ms. Cramer, but not the other. We have discouraged ALJs from picking and

choosing, without explanation, among portions of an uncontradicted opinion.3

See Chapo, 682 F.3d at 1291-92; Haga, 482 F.3d at 1208.




3
        Citing two medical opinions in the record, the Commissioner asserts that
Ms. Cramer did not offer an uncontradicted opinion on concentration, persistence,
and pace. One of those opinions is from a consultative examining psychologist, who
stated that “[p]ersistence and pace were adequate,” but who ultimately opined that
Ms. Crowder “has difficulty maintaining focus and concentration, energy level. . . .
She will have difficulty maintaining a regular work schedule, focusing and
concentrating to work.” Aplt. App., Vol. 2 at 165, 166. Thus, it is not apparent that
this opinion contradicts Ms. Cramer’s opinion. The other cited evidence is the
opinion of an agency reviewer who “didn’t really see many difficulties psych-wise,”
id. at 236, a conclusion that is not supported by the record.


                                         -9-
      Further, the ALJ’s failure to address concentration, persistence, and pace in his

RFC analysis is puzzling given that at step three, he assessed Ms. Crowder with

moderate limitations in this area. Although he said at step three that he would later

discuss how he arrived at this conclusion, see Aplt. App., Vol. 2 at 13, his later

analysis does not address concentration, persistence, and pace. Nor does the decision

otherwise explain why he did not include in the RFC any limitations in concentration,

persistence, and pace.4

                                       Dr. Borja

      Dr. Borja opined that, during a normal 8-hour workday, Ms. Crowder could

stand or walk “8 hours with frequent breaks” and sit “8 hours with frequent breaks.”

Aplt. App., Vol. 2 at 173. Ms. Crowder contends that the ALJ did not account for

Dr. Borja’s specification of “frequent breaks” and did not explain why he was not

including that limitation. It appears that Dr. Borja’s opinion was given in the context

of assessing physical limitations, however, and once the ALJ determined that

Ms. Crowder had no severe physical impairments other than asthma, there may have


4
       It is the Commissioner’s burden at step five to show that Ms. Crowder can
perform work in the national economy. See Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005). The VE testified that a person with Ms. Crowder’s RFC and
marked limitations in (1) “the ability to complete a normal work day and work week
without interruption from psychologically based symptoms,” and (2) “the ability to
perform at a consistent pace without an unreasonable number or length of rest
periods” could not perform the jobs he identified, or any other jobs. Aplt. App.,
Vol. 2 at 33. Nothing in the record indicates whether a person with moderate
limitations in concentration, persistence, and pace could perform the jobs that the VE
identified and the ALJ relied upon.


                                         - 10 -
been no need for the ALJ to consider the frequent-breaks restriction. But given that

this case must be remanded for proper consideration of the other opinions, we need

not decide this issue.

                                      Conclusion

      Because the ALJ did not weigh the opinions of Dr. Vega and Ms. Cramer

under the proper legal standards, we must remand for the ALJ to reweigh these

opinions. If the ALJ again chooses to assess moderate impairments in concentration,

persistence, and pace at step three, but not to include any limitation on concentration,

persistence, and pace in the RFC at step four, he should explain the basis for his

decision. We express no opinion on the weight to be given any opinions or on the

ultimate determination as to whether Ms. Crowder is disabled and entitled to benefits.

      The judgment of the district court is reversed and the case is remanded with

directions to remand the matter, in turn, to the agency for further proceedings

consistent with this decision.


                                                  Entered for the Court


                                                  Bobby R. Baldock
                                                  Circuit Judge




                                         - 11 -
