                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 RITA ROBINSON,

       Plaintiff - Appellant,

 v.                                               No. 03-2170

 JO ANNE B. BARNHART,
 Commissioner of the Social Security
 Administration,

 Defendant - Appellee.


                                      ORDER
                                Filed May 10, 2004


Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
HENRY, Circuit Judge.


      Appellant’s motion to publish the order and judgment filed April 6, 2004, is

granted. The published opinion is attached to this order.


                                            Entered for the Court
                                            Patrick Fisher, Clerk of Court

                                            By:
                                                   Amy Frazier
                                                   Deputy Clerk
                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                    PUBLISH
                                                                        APR 6 2004
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 RITA ROBINSON,

             Plaintiff-Appellant,

 v.                                                   No. 03-2170

 JO ANNE B. BARNHART,
 Commissioner of the Social Security
 Administration,

             Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. CIV-02-644)


Submitted on the briefs:

Michael D. Armstrong, Albuquerque, New Mexico, for Plaintiff-Appellant.

David C. Iglesias, United States Attorney; Tina M. Waddell, Chief Counsel,
Region VI; Michael McGaughran, Deputy Chief Counsel; and Cicely S. Jefferson,
Assistant Regional Counsel, Social Security Administration, Office of the General
Counsel, Dallas, Texas, for Defendant-Appellee.


Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.


PER CURIAM .
      Claimant Rita D. Robinson appeals from the magistrate judge’s order

affirming the Commissioner’s denial of her applications for disability benefits and

supplemental security income benefits.   1
                                             Claimant contends the Commissioner

erred in (1) not giving controlling weight to the opinion of her treating physician,

(2) failing to apply correct legal standard in assessing her ability to perform her

past relevant work, (3) ignoring favorable testimony of the vocational expert, and

(4) finding her noncompliant with medication without applying the correct legal

standard. “We review the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence and whether the correct

legal standards were applied.”    Angel v. Barnhart , 329 F.3d 1208, 1209 (10th Cir.

2003). Because the ALJ failed to apply correct legal standards in evaluating the

treating physician’s opinion, we reverse and remand for further proceedings.   2



      The magistrate judge’s order provides a detailed and chronological

recitation of claimant’s medical record; thus, we only briefly repeat the facts here.

Claimant asserts disability beginning June 1, 1998 due to bipolar type II disorder;

post-traumatic stress disorder, type II; high blood pressure; and chronic facial

1
      The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c)(1).
2
       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.

                                             -2-
pain. Her application was denied initially and on reconsideration. Following a

hearing, the administrative law judge (ALJ) determined that claimant was not

disabled at step four of the five-step sequential evaluation process,    see Williams

v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), because she had the residual

functional capacity (RFC) to return to her past relevant work as a      data entry clerk.

The Appeals Council denied review, and the ALJ’s decision became the final

decision of the Commissioner. Claimant then appealed to the district court, and

the magistrate judge affirmed.

       Claimant contends that the ALJ failed to give controlling weight to the

opinion of her treating psychiatrist, Dr. George Baca, concerning the severity of

her mental impairments and her ability to perform work-related activities.

Although we do not conclude the ALJ was required to give Dr. Baca’s opinion

controlling weight, we do agree the ALJ failed to give sufficient explanation for

rejecting Dr. Baca’s opinion and that the case must, therefore, be remanded for

further proceedings.

       Dr. Baca began treating claimant for her mental illnesses in April 1998,

more than three years prior to the administrative hearing. He saw her on

approximately a monthly basis, and it is undisputed that he is claimant’s treating

physician with respect to her mental impairments. Dr. Baca diagnosed claimant

with bipolar type II disorder, characterized by high anxiety, decreased motor


                                             -3-
activity, high depression, history of mania, vegetative symptoms and suicidal

ideation or intent.

      Dr. Baca began claimant on medication, and noted throughout his treatment

that claimant’s condition improved and was stable while on medication. There

were limited periods during which claimant did not take her medications, and

Dr. Baca reported that her symptoms were worse as a result. He consistently

reported that claimant was unable to work as a result of her mental condition.

During his treatment, claimant was twice hospitalized due to severe suicidal

ideation.

      Dr. Baca completed an assessment of claimant’s mental ability to do

work-related activities in April 2001. As to claimant’s understanding and

memory, he reported that she was limited in her ability to remember locations and

work-like procedures and to understand and remember detailed instructions, and

that these limitations were severe enough to preclude any employment. With

respect to her concentration and pace, he reported that claimant was limited in her

abilities to carry out detailed instructions; maintain attention and concentration

for extended periods; perform activities within a schedule; maintain regular

attendance and be punctual within customary tolerance; work in coordination with

or proximity to others without being distracted by them; complete a normal

workday and workweek without interruptions from psychologically based


                                         -4-
symptoms; and perform at a consistent pace without an unreasonable number

and length of rest periods. He concluded that these limitations were severe

enough to preclude any employment. As to claimant’s social interaction, he

reported that claimant was limited in her abilities to interact appropriately with

the general public; accept instructions and respond appropriately to criticism from

supervisors; get along with coworkers or peers without distracting them or

exhibiting behavioral extremes; maintain socially appropriate behavior; and

adhere to basic standards of neatness and cleanliness. He concluded that these

limitations were severe enough to preclude any employment. Finally, as to

claimant’s ability to adapt, he reported that claimant was limited in her abilities to

respond appropriately to changes in the work setting; be aware of normal hazards

and take appropriate precautions; travel in unfamiliar places or use public

transportation; and set realistic goals or make plans independently of others.

Again, he concluded that these limitations were severe enough to preclude any

employment. Based on this assessment, Dr. Baca opined that claimant’s level of

symptoms due to her mental impairments met the criteria for Listing § 12.04 of

the social security regulations for an affective disorder.   See 20 C.F.R. Subpart P.,

App. 1 § 12.04.

       The ALJ stated that Dr. Baca’s assessment of claimant’s mental ability to

do work-related activities was “vague and conclusive,” and that it did not


                                             -5-
establish that claimant met Listing § 12.04 because it did not identify specific

vegetative symptoms and did not indicate the relative severity of each limitation.

Aplt. App., Vol. I at 19. This latter statement is clearly in error, as Dr. Baca did

explicitly identify the relative severity of each limitation he identified.

      The ALJ then implicitly rejected Dr. Baca’s assessment of claimant’s

nonexertional mental limitations. Apparently based on the assessment of

a consulting psychiatrist, the ALJ stated that nonexertional factors did not

significantly erode claimant’s work capacity. This finding is directly contrary to

Dr. Baca’s opinion. The ALJ acknowledged Dr. Baca’s opinion about claimant’s

nonexertional limitations, but stated that Dr. Baca had noted claimant’s

noncompliance with prescribed medication and had not reported that her condition

was difficult to treat or that it could not be treated successfully if she complied

with medication. The ALJ stated that Dr. Baca gave no other reason for his

conclusion that claimant could not work and speculated that his reason “appears

to be based on that fact that [claimant] refuses to comply with treatments which

otherwise provide improvement.”      Id. at 20.

      We recently discussed the sequential analysis the ALJ should pursue in

evaluating a treating physician’s opinion:

      An ALJ must first consider whether the opinion is “well-supported
      by medically acceptable clinical and laboratory diagnostic
      techniques.” SSR 96-2p, 1996 WL 374188, at *2 (quotations
      omitted). If the answer to this question is “no,” then the inquiry

                                           -6-
      at this stage is complete. If the ALJ finds that the opinion is
      well-supported, he must then confirm that the opinion is consistent
      with other substantial evidence in the record. Id. In other words, if
      the opinion is deficient in either of these respects, then it is not
      entitled to controlling weight. Id.

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

      Even if a treating physician’s opinion is not entitled to controlling weight,

“‘[t]reating source medical opinions are still entitled to deference and must be

weighed using all of the factors provided in 20 C.F.R. [§§] 404.1527 and

416.927.’” Id. (quoting Soc. Sec. R. 96-2p, 1996 WL 374188, at *4).     Those

factors are:

      (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.

Id. at 1301 (quotation omitted).

      Further, “[u]nder the regulations, the agency rulings, and our case law, an

ALJ must give good reasons . . . for the weight assigned to a treating physician’s

opinion,” that are “sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating source’s medical opinions and the

reason for that weight.” Id. at 1300 (quotations omitted). “[I]f the ALJ rejects


                                         -7-
the opinion completely, he must then give specific, legitimate reasons for doing

so.” Id. at 1301 (quotations omitted). “In choosing to reject the treating

physician’s assessment, an ALJ may not make speculative inferences from

medical reports and may reject a treating physician’s opinion outright only on the

basis of contradictory medical evidence   and not due to his or her own credibility

judgments, speculation or lay opinion.” McGoffin v. Barnhart, 288 F.3d 1248,

1252 (10th Cir. 2002) (quotation and emphasis omitted).

      The ALJ’s analysis of Dr. Baca’s opinion is deficient in several respects.

First, the ALJ “failed to articulate the weight, if any, he gave Dr. [Baca’s]

opinion, and he failed also to explain the reasons for assigning that weight or

for rejecting the opinion altogether.” Watkins, 350 F.3d at 1301. Although it

is obvious from the ALJ’s decision that he did not give Dr. Baca’s opinion

controlling weight, the ALJ never expressly stated that he was not affording it

controlling weight, nor did he articulate a legitimate reason for not doing so.

See Soc. Sec. R. 96-2p, 1996 WL 374188, at *2. In the context of deciding

whether Dr. Baca’s report was sufficient to demonstrate that claimant met Listing

§ 12.04, the ALJ did state that Dr. Baca’s assessment of claimant’s mental ability

to perform work-related activities was “vague and conclusive.” Aplt. App., Vol. I

at 19. He did not say, however, that Dr. Baca’s opinion was not well-supported,

nor is this court able to ascertain how or why the ALJ found Dr. Baca’s opinion


                                          -8-
“vague and conclusive.” If the ALJ meant that Dr. Baca’s opinion about

claimant’s nonexertional mental limitations was somehow inadequately supported,

we note that a psychological opinion may rest either on observed signs and

symptoms or on psychological tests, see 20 C.F.R. Subpart P, App. 1 § 12.00(B);

thus, Dr. Baca’s observations about claimant’s limitations do constitute specific

medical findings, see Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir.

1994).

         After failing to articulate why he did not give Dr. Baca’s opinion

controlling weight, the ALJ then failed to specify what lesser weight he assigned

to Dr. Baca’s opinion. See Watkins, 350 F.3d at 1301. Contrary to the

requirements of Soc. Sec. R. 96-2p, the ALJ did not discuss any of the relevant

factors set forth in 20 C.F.R. §§ 404.1527 and 416.927. The ALJ clearly gave

Dr. Baca’s opinion some weight, because he relied on it for his opinion that

claimant was stable on medication. The ALJ is not entitled to pick and choose

from a medical opinion, using only those parts that are favorable to a finding of

nondisability. See Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984).

Because the ALJ failed to provide any explanation of how he assessed the weight

of the treating physician’s opinion, as required by Soc. Sec. R. 96-2p, “[w]e

cannot simply presume the ALJ applied the correct legal standards in considering

[Dr. Baca’s] opinion.” Watkins, 350 F.3d at 1301.


                                           -9-
       Second, the ALJ appears to have rejected Dr. Baca’s opinion based upon

his own speculative lay opinion that claimant failed to comply with prescribed

treatment, an improper basis to reject the treating physician’s opinion.   See

McGoffin, 288 F.3d at 1252. The ALJ stated that Dr. Baca’s opinion about

claimant’s inability to work “appears to be based on the fact that [claimant]

refuses to comply with treatments.” Aplt. App., Vol. I at 20. We find no

evidence in the record that Dr. Baca ever expressed or suggested such an opinion.

He did consistently note that claimant was stable on medication and that her

condition was worse during the periods in which she had not taken her

medication, but he did not indicate that she was refusing to comply with her

medications, nor did he provide or suggest any explanation for her lapses.

Further, Dr. Baca’s treatment notes do not indicate that he believed that claimant

was sufficiently stable to return to work even when on medication. Given that

Dr. Baca was contemporaneously and consistently reporting that claimant was

unable to work as a result of her mental illness, his references to claimant being

“stable” may have simply meant that she was not suicidal. Moreover, the ALJ’s

speculative conclusion is procedurally and legally deficient because he did not

make the findings necessary to deny the claim on the basis of claimant’s

noncompliance with prescribed treatment, nor did he give claimant or her treating

physician an opportunity to explain the specific reasons for her failure to


                                            -10-
take medications to determine if justifiable cause existed for her failure.

See 20 C.F.R. §§ 404.1530 and 416.930; Soc. Sec. R. 82-59, 1982 WL 31384.

      Third, the ALJ’s statement that Dr. Baca’s records did not give a reason for

his opinion that claimant is unable to work triggered the ALJ’s duty to seek

further development of the record before rejecting the opinion.     If evidence from

the claimant’s treating doctor is inadequate to determine if the claimant is

disabled, an ALJ is required to recontact a medical source, including a treating

physician, to determine if additional needed information is readily available.

See 20 C.F.R. §§ 404.1512(e)(1) and 416.912(e)(1) (“We will seek additional

evidence or clarification from your medical source when the report from your

medical source contains a conflict or ambiguity that must be resolved, the report

does not contain all the necessary information, or does not appear to be based on

medically acceptable clinical and laboratory diagnostic techniques.”); see also

McGoffin, 288 F.3d at 1252 (holding ALJ had obligation to recontact treating

physician if validity of his report open to question). The responsibility to see that

this duty is fulfilled belongs entirely to the ALJ; it is not part of the claimant’s

burden. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001). If the ALJ

concluded that Dr. Baca failed to provide sufficient support for his conclusions

about claimant’s mental limitations, the severity of those limitations, the effect of

those limitations on her ability to work, or the effect of prescribed medications on


                                           -11-
her ability to work, he should have contacted Dr. Baca for clarification of his

opinion before rejecting it. The ALJ did not do so.

      Fourth, the ALJ improperly discounted Dr. Baca’s opinion about claimant’s

nonexertional limitations in favor of the opinion of a consulting psychiatrist,

Dr. Walker, who apparently did not examine claimant. “[T]he opinions of

physicians who have seen a claimant over a period of time for purposes of

treatment are given more weight over the views of consulting physicians or those

who only review the medical records and never examine the claimant.” Williams,

844 F.2d at 757; see also 20 C.F.R. §§ 404.1527(d)(1), (2) and 416.927(d)(1), (2)   ;

see also Soc. Sec. R. 96-6p, 1996 WL 374180, at *2. “The treating physician’s

opinion is given particular weight because of his ‘unique perspective to the

medical evidence that cannot be obtained from the objective medical findings

alone or from reports of individual examinations, such as consultative

examinations or brief hospitalizations.’” Doyal v. Barnhart, 331 F.3d 758, 762

(10th Cir. 2003) (quoting 20 C.F.R. § 416.927(d)(2)). The opinion of an

examining physician is generally entitled to less weight than that of a treating

physician, and the opinion of an agency physician who has never seen the

claimant is entitled to the least weight of all. 20 C.F.R. §§ 404.1527(d)(1), (2)

and 416.927(1), (2); Soc. Sec. R. 96-6p, 1996 WL 374180, at *2. Thus, the

ALJ erred in rejecting the treating-physician opinion of Dr. Baca in favor of the


                                         -12-
non-examining, consulting-physician opinion of Dr. Walker absent a legally

sufficient explanation for doing so.

      Claimant also correctly argues that the magistrate judge erred in upholding

the Commissioner’s decisions by supplying possible reasons for giving less

weight to or rejecting the treating physician’s opinion. The ALJ’s decision

should have been evaluated based solely on the reasons stated in the decision.

See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962).

“Affirming this post hoc effort to salvage the ALJ’s decision would require us to

overstep our institutional role and usurp essential functions committed in the first

instance to the administrative process.” Allen v. Barnhart, 357 F.3d 1140, 1142

(10th Cir. 2004).

      Because we conclude that the ALJ did not follow the correct legal

standards in considering the opinion of claimant’s treating physician, we reverse

and remand for further proceedings. As noted above, we agree with claimant’s

fourth claim of error: that the ALJ failed to make the requisite inquiries and

findings before concluding that claimant was not compliant with her prescribed

treatment. We will not reach the remaining issues raised by claimant because

they may be affected by the ALJ’s resolution of this case on remand; the ALJ’s

failure to evaluate properly the treating physician’s opinion undermines his




                                        -13-
assessment of claimant’s nonexertional limitations, and, therefore, the vocational

expert’s assessment of plaintiff’s ability to return to her past relevant work.

      We REVERSE the decision of the magistrate judge and REMAND the case

to the district court with instructions to remand the case to the Commissioner for

further proceedings in accordance with this decision.




                                         -14-
