                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                        June 26, 2012

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court


LISA R. CHAPO,

             Plaintiff-Appellant,

v.                                                          No. 11-1455

MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,

             Defendant-Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                     (D.C. No. 1:10-CV-02123-PAB)


Submitted on the briefs:*

Michael W. Seckar, Pueblo, Colorado, for Plaintiff-Appellant.

John F. Walsh, United States Attorney, District of Colorado; Debra J. Meachum,
Special Assistant United States Attorney, Social Security Administration, Office of
the General Counsel, Region VIII, Denver, Colorado; John Jay Lee, Of Counsel,
Regional Chief Counsel, Office of the General Counsel, Region VIII, Social Security
Administration, for Defendant-Appellee.




*
      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.
Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY,
Circuit Judge.


PORFILIO, Senior Circuit Judge.


      Plaintiff Lisa R. Chapo appeals from a district court order upholding the

Commissioner’s denial of her application for disability and supplemental security

income benefits. “We independently review the Commissioner’s decision to

determine whether it is free from legal error and supported by substantial evidence.”

Krauser v. Astrue, 638 F.3d 1324, 1326 (10th Cir. 2011). Exercising jurisdiction

under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we reverse and remand for the

reasons explained below.

                                AGENCY DECISION

      The Administrative Law Judge (ALJ) denied benefits at the last step of the

five-step process for determining disability. See Wall v. Astrue, 561 F.3d 1048, 1052

(10th Cir. 2009) (summarizing five-step process). At step one the ALJ noted that

Ms. Chapo had not engaged in substantial gainful activity since December 1, 2004,

the alleged disability onset date. At step two the ALJ found that Ms. Chapo “has the

following severe impairments: mild facet disease and stenosis of the lumbar spine,

affective disorder and anxiety disorder.” R. at 9. The ALJ noted that she “also

reported a history of latent tuberculosis,” but found that this was not severe “because

it is controlled by INH therapy that she is receiving through the health department.”

Id. at 10. At step three the ALJ concluded that Ms. Chapo’s condition did not meet

                                         -2-
or equal any of the conclusively disabling impairments listed in 20 C.F.R. 404,

Subpart P, App. 1. See R. at 10-11. At step four the ALJ found that, physically,

Ms. Chapo had a residual functional capacity (RFC) for light work, with certain

postural restrictions (“only occasionally bend, squat, kneel or climb”). Id. at 11. The

ALJ also found certain mental limitations on claimant’s RFC, restricting her to “only

occasionally deal[ing] with the general public,” id., and to “simple, unskilled work at

best,” id. at 15. Citing the postural restrictions and limitation on dealing with the

public, the ALJ concluded that Ms. Chapo could not return to her past relevant work

as a cashier checker. See id. At step five the ALJ found Ms. Chapo not disabled

because, “[c]onsidering [her] age, education [high school], work experience, and

residual functional capacity, there are jobs that exist in significant numbers in the

national economy that [she] can perform,” namely the jobs of appointment clerk,

escort vehicle driver, and office helper identified by the vocational expert (VE) who

testified at the evidentiary hearing. Id. at 15-16.

      In determining Ms. Chapo’s RFC for light work, the ALJ accorded “great

weight” to the opinion of agency consulting physician Dr. Dipesh Amin, who

examined Ms. Chapo in March of 2008 and found no physical restrictions relating to

her back problems other than “appropriate breaks due to limitations of back pain.”

Id. at 13; see also id. at 163-64. The ALJ accorded “no weight” to an opinion given

by Ms. Chapo’s own physician, Dr. David Krause, who shortly before the hearing in

November 2009, found Ms. Chapo capable of standing and walking for no more than


                                           -3-
two hours, and sitting for no more than one hour, in an eight-hour day (which would

have precluded work at either a light or sedentary level). Id. at 14; see also id. at

235-37. As for the mental aspect of Ms. Chapo’s RFC, the record contained only one

medical-source opinion. Shortly before the hearing, Jose Vega, Ph.D., submitted a

narrative report and mental RFC form reflecting a number of serious deficiencies in

Ms. Chapo’s work-related functioning. See id. at 220-27. But the ALJ gave “little

weight” to Dr. Vega’s opinion in arriving at the less restrictive mental limitations

included in Ms. Chapo’s RFC, as summarized above. Id. at 15. The ALJ also

accorded “no weight” to a corroborative mental RFC submitted by Tom Clemens, a

licensed clinical social worker (LCSW), who had been treating Ms. Chapo for more

than a year, in part because a LCSW is not an acceptable medical source for opinion

evidence under the governing regulations. See id. at 14; see also id. at 171-73.

      On appeal to the Appeals Council, Ms. Chapo challenged the ALJ’s decision

in several respects, in particular the ALJ’s treatment of the opinion evidence in the

record. The Appeals Council denied review, making the ALJ’s decision the final

decision of the Commissioner for purposes of our review.

                        CHALLENGES TO AGENCY DECISION

      Ms. Chapo contends that (1) the ALJ’s RFC determination was not supported

by substantial evidence, in particular by medical opinion evidence directly supporting

the RFC findings, and (2) the ALJ improperly handled the opinion evidence in the

case. Her first contention rests on an unduly narrow view of the role of the


                                          -4-
administrative factfinder in social security disability proceedings. Her second

contention, however, has merit, and leads us to reverse and remand this matter to the

agency for further proceedings.

   A. Opinion Evidence and RFC Findings Generally

      Ms. Chapo argues that the ALJ’s physical RFC determination lacks substantial

evidentiary support because the conclusion that she can do light work is not found in

the opinions of either Dr. Amin or Dr. Krause—the former did not find physical

limitations that would restrict Ms. Chapo to light work, while the latter did not find

physical capacities that would allow her to do light work. She insists that the ALJ

was not authorized to determine her RFC by splitting the difference between the two

opinions. First of all, this is a mischaracterization of what happened. The ALJ did

not triangulate from the two opinions, since he flatly rejected that of Dr. Krause.

Rather, the ALJ accorded weight only to Dr. Amin’s opinion, and then tempered it, in

the claimant’s favor, by capping Ms. Chapo’s RFC at the light level. The ALJ could

have been more explicit in tying this mitigating gesture to evidence in the record, but

we are aware of no controlling authority holding that the full adverse force of a

medical opinion cannot be moderated favorably in this way unless the ALJ provides

an explanation for extending the claimant such a benefit. Whether the ALJ was

correct in relying on Dr. Amin’s opinion (and rejecting Dr. Krause’s) is, of course,

another issue, which we address later in this decision. Here, we hold only that, if a

medical opinion adverse to the claimant has properly been given substantial weight,


                                          -5-
the ALJ does not commit reversible error by electing to temper its extremes for the

claimant’s benefit.

      At certain points, Ms. Chapo’s argument takes on a different focus, suggesting

that the components of an RFC assessment lack substantial evidentiary support unless

they line up with an expert medical opinion. This version of her position relates to

both the physical RFC, where the RFC findings deviate from the one medical opinion

given weight by the ALJ, and the mental RFC, where the only medical opinion was

given virtually no weight. But, as the Commissioner notes, there is no requirement in

the regulations for a direct correspondence between an RFC finding and a specific

medical opinion on the functional capacity in question. “[T]he ALJ, not a physician,

is charged with determining a claimant’s RFC from the medical record.” Howard v.

Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (following 20 C.F.R. § 416.927(e)(2)

and SSR 96-59, 1996 WL 374183, at *5); see also 20 C.F.R. §§ 404.1546(c) and

416.946(c). We have thus “rejected [the] argument that there must be specific,

affirmative, medical evidence on the record as to each requirement of an exertional

work level before an ALJ can determine RFC within that category.” Howard,

379 F.3d at 949; see, e.g., Wall, 561 F.3d at 1068-69 (upholding ALJ’s findings on

mental impairment where record did not contain any treating or examining medical

opinions as to allegedly disabling pain disorder); Bernal v. Bowen, 851 F.2d 297,




                                         -6-
302-03 (10th Cir. 1988) (holding ALJ properly made mental RFC findings without

expert medical assistance).1

    B. Handling of Particular Medical Source Opinions in the Record

       1. Dr. Vega’s mental RFC findings

    We first address the opinion of Dr. Vega, as the ALJ’s handling of it most clearly

deviates from the governing law. After Ms. Chapo had been seen for major

depression and PTSD by LCSW Clemens and other health professionals for over a

year, she saw Dr. Vega to complete a summary “Med-9 Form” for the Colorado

Department of Human Services. The ALJ properly gave no weight to this conclusory

form, which lacked any functional findings. But, a month later, shortly before the

hearing in this case, Dr. Vega saw Ms. Chapo again, this time performing a mental

status exam, preparing a six-page narrative report, and filling out a detailed mental

RFC form. Dr. Vega found moderate to extreme limitations in all categories of




1
       Ms. Chapo also argues that, even if an ALJ is not generally prohibited from
making mental RFC findings that do not rest on a medical opinion, the nature of the
record here is such that, once the ALJ rejected Dr. Vega’s unopposed opinion, it was
error to proceed without obtaining another opinion. In support of this fallback
position, she cites Andrade v. Secretary of Health & Human Services, 985 F.2d 1045,
1048-50 (10th Cir. 1993) (acknowledging that ALJ need not always obtain medical
opinion for mental RFC findings, but, distinguishing Bernal factually, holding record
was insufficient to permit ALJ to forgo medical opinion in that case). Because, as
explained later, we hold that the ALJ erred in rejecting Dr. Vega’s opinion, we need
not decide whether, as it stands now, the mental aspect of this case would properly
have fallen under Bernal (cited above) or Andrade.


                                         -7-
mental functioning.2 He concluded that “[i]n her present condition and in the

foreseeable future, she is not psychologically stable to where she would be able to

function in a competitive job market. She requires continued psychiatric care and

treatment.” R. at 225.

      While that overall conclusion gives some global indication of the severity of

Ms. Chapo’s condition, Dr. Vega’s findings with respect to specific functional areas

are crucial for purposes of the mental RFC assessment. His most salient findings,

organized here by categories of vocational significance rather than by the broad

psychological categories used by the form, are set out below.

      Following instructions and work procedures:
      Marked to extreme limitation on ability to understand, remember, and carry
       out detailed instructions.
      Moderate to marked limitation on ability to understand, remember, and carry
      out very short and simple instructions.
      Marked to extreme limitation on ability to remember work-like procedures.

      Attention and concentration:
      Marked to extreme limitation on ability to maintain attention and
      concentration for extended periods.
      Marked to extreme limitation on ability to work in coordination with or in
      proximity to others without being distracted.

      Reliability:
      Marked to extreme limitations on ability to perform activities within a
      schedule, maintain regular attendance, and be punctual within customary
      tolerances.
2
       “Extreme” signifies “Severe limitations . . . [n]o useful ability to function”;
“Marked” signifies “Serious limitations . . . ability to function . . . severely limited
but not precluded”; “Moderate” signifies “Moderate limitations but still able to
function”; “Slight” signifies “Some mild limitation . . . but generally functions well.”
R. at 226.


                                          -8-
      Marked to extreme limitation on 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 length of rest
      periods.

      Independent decision-making/need for supervision:
      Marked to extreme limitation on ability to make simple work-related
      decisions.
      Marked to extreme limitation on ability to set realistic goals or make plans
      independently of others.
      Moderate to marked limitation on ability to sustain an ordinary routine without
      special supervision.

      Interaction with supervisors and coworkers:
      Marked to extreme limitation on ability to accept instructions and respond
      appropriately to criticism from supervisors.
      Moderate to marked limitation on ability to get along with coworkers or peers
      without distracting them or exhibiting behavioral extremes.
      Marked to extreme limitation on ability to ask simple questions or request
      assistance.

      Social Interaction:
      Marked to extreme limitation on ability to interact appropriately with the
      general public.
      Moderate to marked limitation on ability to maintain socially appropriate
      behavior.

      Adaptation and orientation to work setting:
      Marked to extreme limitation on ability to respond appropriately to changes in
      work setting.
      Marked to extreme limitation on ability to remember locations.
      Moderate to marked limitation on ability to travel in unfamiliar place.

See R. at 226-27.

      Dr. Vega thus found that Ms. Chapo’s mental limitations significantly affected

her ability to work in many different respects—some of which would likely interfere

with work in almost any setting, and some of which would also likely interfere

particularly with her ability to perform the three jobs identified by the VE in response

                                         -9-
to the ALJ’s questioning at the hearing. But virtually none of these complications

were considered by the VE. Rather, the VE was able to opine that Ms. Chapo was

capable of performing work, and in particular the specified jobs, because the ALJ

included in his hypothetical to the VE only one of the mental restrictions found by

Dr. Vega (and even that just to a limited degree): the only mental restriction

acknowledged in the hypothetical was that her work should be restricted to “only

occasional[ly] dealing with the general public.” R. at 30.3

      Accordingly, the ALJ’s justification for effectively rejecting (or, as the ALJ

put it, “according little weight to”) Dr. Vega’s unopposed findings is critical to the

validity of the ALJ’s decision. That justification consisted of one point: “because at

the time of the hearing, Dr. Vega had been in a professional relationship with

[Ms. Chapo] for merely two months.” R. at 15. This may be a valid reason not to

accord Dr. Vega’s findings the conclusive weight of a treating medical-source
3
       Indeed, the ALJ did not even include the restriction to “simple, unskilled work
at best” acknowledged in his own decision. R. at 15. While 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.” Wayland v. Chater, Nos. 95-7029 and 95-7059, 1996 WL
50459, at *2 (10th Cir. Feb. 7, 1996) (unpub.) (drawing on several published cases in
noting restriction to unskilled jobs does not address mental impairment); see Craft v.
Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (holding limitation to unskilled work
did not account for several effects of mental impairment). As for the restriction to
“simple” work, it is doubtful that this vague catch-all term would have been
sufficient to capture the various functionally distinct mental limitations recognized
by Dr. Vega; but in any event, the failure of the ALJ to include his own mental
restriction would be fatal to the validity of the hypothetical to the VE. See Barnett v.
Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (holding hypothetical to VE is sufficient if
“it contained all of the limitations found to exist by the ALJ”).


                                         - 10 -
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.4 The Commissioner has not

cited a single authority for the facially dubious proposition that the opinion of an

examining medical source is, as such, dismissible. To the contrary, as the regulations

governing medical opinions recognize, an examining medical-source opinion is, as

such, given particular consideration: it is presumptively entitled to more weight than

a doctor’s opinion derived from a review of the medical record. 20 C.F.R.

§§ 404.1527(d)(1), 416.927(d)(1)5; see, e.g., Winfrey v. Chater, 92 F.3d 1017, 1022

(10th Cir. 1996). 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 cited regulations and the

ALJ must “provide specific, legitimate reasons for rejecting it.” Doyal v. Barnhart,

331 F.3d 758, 764 (10th Cir. 2003) (specifically addressing situation where, as here,

an examining doctor lacks sufficient history with the claimant to qualify as a treating




4
     The ALJ’s reliance on examining-consultant Dr. Amin’s report for his physical
RFC determination here is a case in point.
5
       We refer to the regulations in effect at the time of the ALJ’s decision. The
cited provisions are now found, with substantially the same language, at 20 C.F.R.
§§ 404.1527(c)(1), 416.927(c)(1).


                                          - 11 -
source). The ALJ did not do that here—the ALJ’s assessment simply ended with the

recognition of Dr. Vega’s limited professional relationship with Ms. Chapo.

      Again, it is important to keep in mind 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.6 Nor did the ALJ find that Dr. Vega’s

findings were inconsistent with his associated examination and report or with other

evidence identified from the record. We agree with Ms. Chapo that the ALJ’s

treatment of Dr. Vega’s unopposed mental RFC findings was erroneous and that this

error fatally undermined the basis of the ALJ’s disposition at step five.

      The ALJ’s handling of Dr. Vega’s findings is also problematic in another,

related respect. The ALJ accepted, at least to a limited extent, the restriction

recognized by Dr. Vega with regard to Ms. Chapo’s difficulty in dealing with the

public. But the ALJ fully discounted the bulk of Dr. Vega’s mental RFC limitations

with no explanation at all as to why one part of his opinion was creditable and the

rest was not. That is error under this circuit’s case law. We have repeatedly held

that “[a]n ALJ is not entitled to pick and choose through an uncontradicted medical

opinion, taking only the parts that are favorable to a finding of nondisability.”
6
       Dr. Vega’s findings were similar to those of LCSW Clemens, who saw
Ms. Chapo for over a year (and whose records Dr. Vega reviewed as part of his
evaluation.). But in numerous respects, Clemens consistently noted more extreme
deficiencies than those found by Dr. Vega. The ALJ rejected Clemens’s findings,
because an LCSW is not an acceptable medical source and because the ALJ deemed
his findings so extreme as to be implausible for a patient that had not required
hospitalization for mental impairment.


                                         - 12 -
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (following Robinson v.

Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004), and Hamlin v. Barnhart, 365 F.3d

1208, 1219 (10th Cir. 2004)). Ms. Chapo does not make this specific objection, but

as we are already reversing and remanding for other reasons, we note this problem in

the hope of forestalling the repetition of avoidable error.

      In sum, the ALJ’s handling of Dr. Vega’s findings was erroneous and, as a

result, the dispositive hypothetical inquiry put to the VE was fatally defective.

Indeed, that hypothetical did not even include a restriction (to “simple” work) that

the ALJ himself recognized in his decision. See supra note 3. This matter must be

remanded for further proceedings, wherein the ALJ must either obtain a mental RFC

determination from an examining source to oppose to Dr. Vega’s, articulate some

other adequate basis for discounting Dr. Vega’s findings, or come back to the VE

with a proper hypothetical including those limitations (and his own restriction to

“simple” work, should the ALJ find it appropriate to re-impose such a restriction in

the RFC determined on remand).

      2. Physical RFC determination

      Dr. Amin, the agency’s examining consultant, found no sitting, standing,

walking, or lifting limitations whatsoever relating to Ms. Chapo’s spinal condition,

while her physician, Dr. Krause, found limitations that would clearly preclude any

substantial gainful activity. The ALJ stated that he was giving “great weight” to

Dr. Amin’s opinion, because “he performed a thorough examination of the [claimant]


                                          - 13 -
and his findings are supported by and consistent with the medical evidence of

record.” R. at 13. The ALJ gave “no weight” to Dr. Krause’s opinion, because “he

had begun treating the claimant in the month immediately preceding the hearing” and

“none of his treating records, if any, are in the medical evidence of record.” Id. at 14.

      The medical evidence the ALJ cited as supporting Dr. Amin’s findings

included Dr. Amin’s notation of negative straight leg raises and normal gait. This

was in March 2008, when there were no diagnostic images to indicate any underlying

skeletal basis for Ms. Chapo’s complaints of lower back and leg pain. Later in 2008,

an X-ray was taken showing “mild scoliosis” and “some mild facet hypertrophic

changes at L3-4, L4-5, and L5-S1.” Id. at 206. By August 2009, positive straight leg

raises and a guarded gait are noted in her treating records, id. at 194, and a September

2009 MRI ordered by Dr. Krause revealed a broad-based disk bulge at L5-S1

resulting in bilateral encroachment on the S1 nerve root, id. at 231. The relevant

medical record obviously underwent material changes in the twenty months between

Dr. Amin’s report and the ALJ’s decision in November 2009. Yet the agency did not

seek another exam by Dr. Amin or provide him the new information and request a

follow-up to his opinion. Thus, while Dr. Amin’s opinion may have been “supported

by and consistent with the medical evidence of record” when he gave it in early 2008,

it does not account for material objective evidence developed long afterward. The

staleness of his opinion—which, again, denied any back-related limitations at all on

primary exertional activities (which would leave Ms. Chapo free to engage in even


                                         - 14 -
heavy work, albeit with minor postural limitations)—is perhaps reflected in the

ALJ’s recognition that Ms. Chapo’s skeletal condition actually restricted her to a

limited range of light work.

      In contrast, Dr. Krause had the benefit of the MRI when he gave his opinion

(while he didn’t expressly refer to the MRI, he is the one who ordered it and the MRI

report recites that it was distributed to him). Nevertheless, the ALJ was justified in

rejecting his summary RFC opinion (related in check-box/fill-in-the-blank format

with no explanation or supporting report), because (1) he had just begun treating

claimant a month before the hearing and (2) none of his treating notes, if any, were in

the record. From what we said earlier about the ALJ’s rejection of Dr. Vega’s

findings, the ALJ’s addition of the second reason for rejecting Dr. Krause’s opinion

is critical—otherwise we would again have a medical source opinion rejected solely

because it might not qualify as a treating opinion.

      The ALJ’s reliance on the patently stale opinion of Dr. Amin remains

troubling, notwithstanding the rejection of the opposing opinion of Dr. Krause and

the ALJ’s own moderation of the more extreme implications of Dr. Amin’s finding of

no limitation with respect to the basic exertional requirements of sitting, standing,

walking, and lifting. While we need not make a definitive determination on this

question, we do encourage the ALJ to obtain an updated exam or report to forestall

any potential problem from arising in this respect on remand.




                                         - 15 -
      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 opinion.




                                        - 16 -
