                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  July 22, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    DONALD P. KILINSKI, on behalf of
    Rosemary A. Kilinski (Deceased),

                Plaintiff-Appellant,
                                                         No. 10-1540
    v.                                         (D.C. No. 1:09-CV-00716-CMA)
                                                          (D. Colo.)
    MICHAEL J. ASTRUE, Commissioner
    of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


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



         Rosemary A. Kilinski sought social security disability benefits commencing

December 1, 1999. 1 The Commissioner determined that she was disabled as of


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
       Ms. Kilinski died in 2009 and her husband Donald P. Kilinski was
substituted as plaintiff, pursuant to 42 U.S.C. § 404(d)(1). We nevertheless refer
to Ms. Kilinski because she was the claimant in the administrative proceedings.
October 1, 2003. She now appeals the district court’s judgment upholding the

Commissioner’s determination that her disability onset date was October 1, 2003,

rather than December 1, 1999. We exercise jurisdiction under 28 U.S.C. § 1291

and 42 U.S.C. § 405(g). Because we conclude that the Administrative Law Judge

(ALJ) erred in assessing Ms. Kilinski’s residual functional capacity (RFC), we

remand for further proceedings. 2

                                    I. Background

      Ms. Kilinski asserted disability beginning December 1, 1999, at the age of

57, due to ovarian and liver cancer, fatigue, inability to concentrate, thumb pain,

knee pain, and musculoskeletal pain. In late 1999, she had surgery for ovarian

cancer followed by chemotherapy from mid-January through mid-May, 2000.

Aplt. App. Vol. I at 118-19, 199, 205. During chemotherapy, Ms. Kilinski

suffered from fatigue, anemia, nausea, leg and arm pain, aching joints, depression,

and migraine headaches. Id. at 193, 200; id. Vol. II at 314, 318, 322, 329.

Following chemotherapy, Ms. Kilinski reported fatigue and joint aches, but had a

good energy level and had regained most of her strength. Id. Vol. II at 247, 306,

308, 312. In September 2000, she began reporting depressive symptoms, but

declined antidepressant medication at that time. Id. Vol. I at 193.



2
      Ms. Kilinski’s application was filed October 24, 2003. The Social Security
Act allows retroactive disability benefits for a period of up to one year prior to
the date of application. See 42 U.S.C. § 423(b).

                                         -2-
      In November 2000, Dr. Blevins examined Ms. Kilinski due to her

complaints of pain in her knees, elbow, and left thumb. Id. at 142-43. X-rays

revealed significant arthritis in the thumb and mild osteoarthritis in the knees. Id.

      From February to May 2001, Ms. Kilinski was walking regularly and

exercising at a gym. Id. at 182, 184. In late August 2001, she reported increased

fatigue, shortness of breath on exertion, increased left wrist pain, and depression.

Id. Vol. II at 288. In September 2001, her physician again recommended an

antidepressant. Id. Vol. I at 181. In April 2002, she began taking an

antidepressant, which improved her depressive symptoms. Id. at 165, 169. From

August to November 2002, she was examined for neck and shoulder pain. Id. at

160; id. Vol. II at 397-98. An appointment with her oncologist on February 21,

2003, showed a normal exam, id. Vol. II at 265-66, and on August 19, 2003, her

treating physician noted that her depression was well-controlled by the

antidepressant, id. Vol. I at 156. In October 2003, however, she was diagnosed

with recurrent ovarian cancer. Id. Vol. II at 260.

      In June 2001, Ms. Kilinski attempted to return to work. Her first work

attempt was a part-time job from June 2001 until April 2002, one to three days

per week, about fourteen hours per week. Although she was hired to do sales

work and promotions, due to her fatigue and inability to concentrate, she did only

copying and filing. She next worked in the fall of 2002 for less than one month

as a temporary secretary-receptionist. Her final work attempt was as a “demo

                                         -3-
lady” where she handed out products for four to six hours, twice a month for five

months in 2003.

      In the administrative proceedings, Ms. Kilinski’s application for disability

benefits was granted initially for disability beginning October 1, 2003. She

sought further agency review on her claim of disability since December 1, 1999,

and was granted a hearing before an ALJ. At the hearing, she and her husband

testified, as did a vocational expert (VE). The ALJ determined that Ms. Kilinski

was not disabled before October 1, 2003, finding at step four of the five-step

sequential evaluation process, see Fischer-Ross v. Barnhart, 431 F.3d 729, 731

(10th Cir. 2005) (describing five steps), that she had the RFC to return to her past

relevant work as a technical writer. The Appeals Council denied review, thus

making the ALJ’s determination the final decision of the Commissioner. The

district court affirmed.

      On appeal, Ms. Kilinski argues that the ALJ erred (1) in assessing her RFC,

(2) in rejecting the opinion of her treating physician, (3) and in failing to properly

evaluate her subjective complaints and credibility in determining her RFC.

                                     II. Analysis

                              A. Standards of Review

      We review the Commissioner’s decision to ascertain whether it is supported

by substantial evidence in the record and to evaluate whether he applied the

correct legal standards. Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007).

                                          -4-
“Substantial evidence is more than a mere scintilla and is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Flaherty

v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal quotation marks

omitted). To determine whether substantial evidence supports the

Commissioner’s decision, we examine the record as a whole, but we do not

reweigh the evidence. Id.

      In this context, “disability” requires both “an inability to engage in any

substantial gainful activity” and “a physical or mental impairment, which provides

reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002) (internal

quotation marks omitted). The impairment must be a “‘medically determinable

physical or mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12

months. . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C. § 423(d)(1)(A)).

                               B. RFC Determination

      At step four, the ALJ was required to evaluate Ms. Kilinski’s physical and

mental RFC. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). RFC

represents “the most [that the claimant] can still do despite [her] limitations,”

20 C.F.R. § 404.1545(a)(1), and must include “all of [the claimant’s] medically

determinable impairments,” id. § 404.1545(a)(2). The ALJ assigned Ms. Kilinski an

RFC within the sedentary exertional level, finding that she could lift up to ten




                                          -5-
pounds, frequently sit, occasionally stand and walk, and push and pull “within the

exertional range specified.” Aplt. App. Vol. I at 19.

(i) Left thumb pain

      For her first challenge to the ALJ’s RFC determination, Ms. Kilinski asserts

that the ALJ erred in evaluating her left thumb pain. She testified that she could use

a computer for only one hour before her thumb pain required her to stop. The VE

testified that Ms. Kilinski’s past jobs required “pretty extensive keyboarding,” so if

a person could use a computer only one hour a day, she could not do those jobs. Id.

Vol. II at 531.

      The ALJ stated that diagnostic studies of Ms. Kilinski’s thumb ordered by

Dr. Blevins in November of 2000 “were normal.” Id. Vol. I at 17. In fact, the x-ray

of the left thumb showed significant joint arthritis, examination demonstrated “fairly

significant tenderness,” and a hand-based splint was prescribed. Id. at 142-43.

Moreover, Ms. Kilinski’s medical records established that she experienced pain in

her thumb since approximately 1995. See id. at 144.

      The Commissioner argues that the ALJ’s error in evaluating Ms. Kilinski’s

thumb pain was harmless because she had worked at jobs requiring computer

keyboarding since 1995 and had reported to Dr. Blevins that her pain had increased

only slightly between 1995 and 2000. Therefore, according to the Commissioner,

Ms. Kilinski’s thumb pain would not have prevented her from working as a




                                          -6-
technical writer between December 1, 1999 and October 1, 2003. The district court

adopted this reasoning to hold that the ALJ’s error was harmless.

      “The [district court’s] (and appellee’s) post hoc rationale is improper because

it usurps the agency’s function of weighing and balancing the evidence in the first

instance.” Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008). “[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). We may apply harmless error “in the right exceptional

circumstance, i.e., where, based on material the ALJ did at least consider (just not

properly), we could confidently say that no reasonable administrative factfinder,

following the correct analysis, could have resolved the factual matter in any other

way.” Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

      The error is not harmless because if the ALJ had recognized the objective

medical evidence showing significant joint arthritis and the physician’s notation of

fairly significant tenderness and a prescription for a hand-based splint, he may have

found credible Ms. Kilinski’s testimony that she could not use a keyboard for more

than an hour a day. Indeed, if the ALJ had properly analyzed the evidence

concerning Ms. Kilinski’s thumb pain, he might have concluded that she was unable

to do her past work as a technical writer. Accordingly, we must remand this issue

for further findings.




                                          -7-
(ii) Findings and evidence to support RFC

      Ms. Kilinski also finds fault with the RFC assessment because (1) the ALJ

failed to include an evaluation of manipulative functions; (2) the record does not

support the RFC findings for sitting, walking, or pushing and pulling; and (3) the

RFC assessment is not supported by substantial evidence.

      We agree that the ALJ erred in failing to assess Ms. Kilinski’s manipulative

functioning in light of the objective medical evidence showing arthritis in the left

thumb, Ms. Kilinski’s testimony that she could work at a keyboard only one hour a

day, and the VE’s testimony that her past jobs, except the job as trainer, required

extensive keyboarding. See 20 C.F.R. §404.1545(b) (including manipulative ability

in types of physical demands that may reduce a claimant’s ability to do past work).

On remand, the ALJ should include in his RFC assessment Ms. Kilinski’s

manipulative functioning.

      The ALJ determined that Ms. Kilinski could do sedentary work, including its

sitting, walking, and pushing/pulling demands. The ALJ stated that these

assessments were based on “the entire clinical record,” Aplt. App. Vol. I at 19, but

did not indicate which part of the record supported his assessment. The ALJ

incorporated in the RFC assessment Ms. Kilinski’s testimony of her abilities to

stand and lift. Although the ALJ discussed the medical evidence earlier in his

decision, he did not point to any evidence of Ms. Kilinski’s abilities to sit, walk, or

push/pull. “It is well settled that administrative agencies must give reasons for their

                                          -8-
decisions.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation

marks and brackets omitted). Therefore, on remand, the ALJ should also clarify his

reasons for the RFC findings regarding Ms. Kilinski’s abilities to sit, walk, and

push/pull.

      The ALJ’s conclusion that Ms. Kilinski could do sedentary work was based

on the following findings: her 1999-2000 cancer treatment “restored significant

function in a short period of time”; she was able to exercise and walk her large dog;

she was “known to be . . . high functioning, intelligent and competent” and quickly

overcame the adverse effects of her cancer treatment; “she did not consider herself

precluded from all work activity,” as evidenced by her attempts to work; and the

fact that she could not sustain her work attempts at the light level did not preclude a

finding that she could do sedentary work. Aplt. App. Vol. I at 19.

      The record contains substantial evidence to support the ALJ’s finding that

Ms. Kilinski’s cancer treatment restored significant function. However, at step two,

the ALJ also found “it reasonable that the claimant had a loss of exertional strength

and some fatigue flowing from her treatment [from] December 1999 through

September 2003.” Id. at 18. The ALJ failed to evaluate the effects of fatigue and

loss of exertional strength on Ms. Kilinski’s RFC. On remand, the ALJ should

perform this evaluation. See Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)

(stating ALJ must consider limiting effects of all impairments, even those found not

disabling at step two).

                                           -9-
      Furthermore, the ALJ’s finding that Ms. Kilinski did not sustain her attempts

at light work is not evidence that she could do sedentary work, particularly because

the ALJ did not discuss her work attempts. See 20 C.F.R. §404.1574(a)(1) (stating

work that a claimant was “forced to stop or to reduce below the substantial gainful

activity level after a short time because of [her] impairment” is considered “an

unsuccessful work attempt”); Social Security Ruling 96-8p, 1996 WL 374184, at *5

(stating RFC assessment must be based on all relevant evidence, including

“[e]vidence from attempts to work”). 3 Ms. Kilinski testified that she had been

required to abandon her work attempts due to fatigue, inability to concentrate, and

pain. As noted above, the ALJ failed to incorporate in his RFC assessment his

finding that Ms. Kilinski had a loss of exertional strength and some fatigue. In

addition, the ALJ made no findings on whether she would be able to sustain

work-like activities for eight hours a day, five days a week, or an equivalent work

schedule. See Haga, 482 F.3d at 1208 (reversing because evidence did not show

that claimant had the RFC to work “8 hours a day, for 5 days a week, or an

equivalent work schedule”) (quoting SSR 96-8p, 1996 WL 374184, at *2)). He also

did not decide if she could hold a job for a significant period of time in light of her

impairments. See Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994) (“A

finding that a claimant is able to engage in substantial gainful activity requires more


3
      “Social Security Rulings are binding on the ALJ.” Hayden v. Barnhart,
374 F.3d 986, 992 n.9 (10th Cir. 2004) (citing 20 C.F.R. § 402.35(b)).

                                          -10-
than a simple determination that the claimant can find employment and that [she]

can physically perform certain jobs; it also requires a determination that the

claimant can hold whatever job [she] finds for a significant period of time.”

(internal quotation marks omitted)). And the ALJ’s view that Ms. Kilinski did not

consider herself disabled because she made three brief work attempts is belied by

the evidence, including her testimony, that she was unable to sustain work.

      Moreover, Ms. Kilinski’s ability to exercise and walk her large dog does not

establish her ability to perform substantial gainful activity. Cf. Krauser v. Astrue,

638 F.3d 1324, 1333 (10th Cir. 2011) (“[S]poradic performance of household tasks

or work does not establish that a person is capable of engaging in substantial gainful

activity.”); Haga, 482 F.3d at 1208 (claimant’s ability to work two to six hours per

day as caretaker for her mother did not show she could hold a job). Accordingly, on

remand the ALJ should address these deficiencies in the RFC assessment. 4

(iii) Failure to compare RFC to requirements of past work

      Ms. Kilinski further argues that substantial evidence does not support the

ALJ’s conclusion that she could perform her past work as a technical writer. After


4
       The ALJ’s remark that Ms. Kilinski was “known to be . . . high functioning,
intelligent and competent,” Aplt. App. Vol. I at 19, is not evidence of her ability
to work. The remark was drawn from Dr. Davidson’s report, id. Vol. II at 424,
which the ALJ afforded no weight. Moreover, the ALJ lifted this comment out of
context; Dr. Davidson said that Ms. Kilinski was “known to be a very intelligent,
competent, and high functioning person normally.” Id. (emphasis added).
Dr. Davidson went on to say that following her treatment for cancer in 2000,
Ms. Kilinski’s concentration was impaired and she was easily fatigued. Id.

                                          -11-
determining a claimant’s physical and mental RFC, an ALJ must determine the

physical and mental demands of the claimant’s past relevant work, followed by an

assessment of whether the claimant has the ability to meet the job demands

notwithstanding her physical and mental limitations. Winfrey v. Chater, 92 F.3d

1017, 1023 (10th Cir. 1996). “We have long recognized the Commissioner’s ‘basic

obligation’ to fully investigate the physical and mental demands of a claimant’s past

work and compare them to her current capabilities.” Hayden v. Barnhart, 374 F.3d

986, 991 (10th Cir. 2004). Although the burden remains on the claimant to establish

that she is unable to perform her past work, “if the ALJ fails to make the requisite

inquiry regarding the exertional demands of a claimant’s prior work and the record

is devoid of evidence on that issue, a case must be remanded to develop an adequate

record.” Id.

      The VE submitted an exhibit describing Ms. Kilinski’s past jobs, which

identified the technical writer job in the Department of Labor’s Dictionary of

Occupational Titles (DOT). Aplt. App. Vol. I at 109. Pursuant to that listing, DOT

131.267-026, the job requires, among other skills: a reasoning level of 5 (“Apply

principles of logical or scientific thinking to define problems, collect data, establish

facts, and draw valid conclusions. Interpret an extensive variety of technical

instructions in mathematical or diagrammatic form. Deal with several abstract and

concrete variables.”), a specific vocational preparation of 8 (“Over 4 years up to and

including 10 years”), a math level of 3 (“Compute discount, interest, profit, and

                                          -12-
loss; commission, markup, and selling price; ratio and proportion; and percentage.

Calculate surfaces, volumes, weights, and measures.”). In addition, the job requires

frequent handling and fingering.

      Neither Ms. Kilinski nor the VE discussed the job demands of a technical

writer at the administrative hearing except, as noted above, the VE testified that

Ms. Kilinski’s past jobs required “pretty extensive keyboarding,” Aplt. App. Vol. II

at 521. The ALJ made no inquiry or findings about the job or Ms. Kilinski’s ability

to perform this job between December 1, 1999, and October 1, 2003. Accordingly,

because the ALJ’s decision contains “no comparison of her prior work with her

capabilities,” a remand is required to permit the ALJ to conduct this comparison.

Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993).

                          C. Treating Physician’s Opinion

      Ms. Kilinski next contends that the ALJ improperly disregarded the opinion

of her treating physician, Dr. Davidson, who provided a report dated August 31,

2004, opining that Ms. Kilinski’s cancer and treatment rendered her unable to work

from December 1999 through August 2004. Aplt. App. Vol. II at 423-24. The ALJ

determined that Dr. Davidson’s opinion was entitled to no weight “because it [was]

not well supported by underlying clinical evidence accumulated by Dr. Davidson or

others. More precisely, it is inconsistent and actually refuted by the clinical record

accumulated prior to October 2003.” Id. Vol. I at 18.




                                          -13-
      When evaluating a treating physician’s medical opinion, the ALJ must

conduct a two-part inquiry: (1) whether the opinion is to be accorded controlling

weight, and (2) even if it is not entitled to controlling weight, the opinion is still

entitled to deference and “the ALJ must make clear how much weight the opinion is

being given (including whether it is being rejected outright).” Krauser, 638 F.3d at

1330. At the second step, the ALJ must “give good reasons, tied to the factors

specified in the cited regulations for this particular purpose, for the weight

assigned.” Id.; see also Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004)

(stating factors for evaluating treating physician’s opinion).

      Ms. Kilinski complains that the ALJ did not address all of the relevant

factors. But as she recognizes, the ALJ is not required to discuss each factor.

Oldham, 509 F.3d at 1258. She also argues that the ALJ ignored evidence of her

complaints of fatigue and shortness of breath, thus picking and choosing evidence to

support his conclusion. But while Ms. Kilinski did report fatigue, depression, and

shortness of breath during the relevant period, she also reported that she had good

energy and was feeling well. Moreover, she declined medication to treat her

depression until April 2002; thereafter, she reported that the medication relieved her

depression. See Kelley v. Chater, 62 F.3d 335, 337-38 (10th Cir. 1995) (affirming

ALJ’s determination that claimant could perform work based in part on the fact that

his condition was well-controlled by medication). The ALJ recognized that

Ms. Kilinski had reported both bad and good days and also noted that the objective

                                            -14-
medical evidence generated during the relevant period did not support

Dr. Davidson’s opinion that Ms. Kilinski was unable to work between

December 1999 and October 2003.

      The ALJ completed the required two-step process for evaluating a treating

physician’s opinion. First, he determined that the opinion was not entitled to

controlling weight because it was not supported by objective medical evidence and

was inconsistent with the medical evidence. Cf. Krauser, 638 F.3d at 1330 (stating

the treating physician’s medical opinion is entitled to controlling weight “if it is

well-supported by medically acceptable clinical or laboratory diagnostic techniques

and is not inconsistent with other substantial evidence in the record”). Second, he

made clear how much weight the opinion was being given, see id., by stating it was

entitled to no weight, explaining that the medical evidence did not support

Dr. Davidson’s opinion that Ms. Kilinski suffered from debilitating fatigue and

depression during the relevant period. He determined that the clinical records,

including those of Dr. Davidson, showed normal strength and findings, and that

Ms. Kilinski was clinically stable. He noted additionally that Ms. Kilinski was

exercising and that medication relieved her depression. Accordingly, we cannot say

that the ALJ’s treatment of Dr. Davidson’s opinion was error.

                     D. Credibility and Subjective Complaints

      Finally, Ms. Kilinski argues that the ALJ failed to properly evaluate her

credibility and subjective complaints in assessing her RFC. She claims that the ALJ

                                           -15-
erred in his RFC assessment and in concluding that she could perform her past job

as a technical writer. As discussed above, on remand the ALJ should reassess

Ms. Kilinski’s RFC and reevaluate her credibility, in particular, concerning her

thumb pain.

                                  III. Conclusion

      The judgment of the district court is REVERSED and the cause is

REMANDED to the district court with instructions to remand to the Commissioner

for further proceedings consistent with this order and judgment.


                                                    Entered for the Court



                                                    Jerome A. Holmes
                                                    Circuit Judge




                                         -16-
