explaining that 6 Notably, this statement by Dr. Penland immediately precedes her statement that “I have not known this patient for very long. I just met her in December of 2016.” (AR 427.) The Commissioner’s Response omits any reference to that statement, which provides critical context for her subsequent statements regarding the length of her treatment relationship. reviewing courts “may not create or adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision itself”
How later courts described this case
- explaining that 6 Notably, this statement by Dr. Penland immediately precedes her statement that “I have not known this patient for very long. I just met her in December of 2016.” (AR 427.) The Commissioner’s Response omits any reference to that statement, which provides critical context for her subsequent statements regarding the length of her treatment relationship. reviewing courts “may not create or adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision itself”
- explaining that the court “may not create 8 “Constant” in this context means reaching, handling, or fingering that is performed “2/3 or more of the time.” Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, App. C, Physical Demands, Absence or Presence of Other Physical Demand or adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision itself”
- explaining that “a moderate impairment is not the same as no impairment at all” and holding that there was reversible error where the ALJ rejected, without explanation or evidentiary support, certain “moderate impairments” found by a medical consultant but adopted other “moderate” restrictions found by the same consultant
- explaining 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” and remanding where it was “unexplained” why the ALJ adopted some of the doctor’s opinions regarding the claimant’s restrictions but not others
Written by the judges who cited it.
The opinion
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 3, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
C LA RICE D . H A G A ,
Plaintiff-Appellant,
v. No. 06-5107
M ICH AEL J. ASTRU E, *
Commissioner, Social Security
Administration,
Defendant-Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E DISTRICT O F NO RTH ERN O K LAH O M A
(D.C. No. 05-CV-13-CVE-FH M )
Submitted on the briefs: **
Steve A. Troutman, Troutman & Troutman, P.C., Tulsa, Oklahoma, for
Plaintiff-A ppellant.
David E. O’M eilia, United States Attorney; Tina M . W addell, Regional Chief
Counsel; Virginia W atson Keyes, Special Assistant United States Attorney, Office
of the General Counsel, Region V I, Social Security Administration, Dallas,
Texas, for Defendant-Appellee.
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
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.
Before TA CH A, Chief Judge, KELLY and O’BRIEN, Circuit Judges.
KELLY, Circuit Judge.
Appellant Clarice D. Haga appeals from the denial of her claim for
supplemental security income benefits. W e have jurisdiction under 28 U.S.C.
§ 1291 and 42 U.S.C. § 405(g).
The case was decided at step five of the five-step evaluation sequence. See
generally W illiams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). Appellant
has numerous physical and mental impairments, partly resulting from long-term
and repeated physical and sexual abuse, the suicide of her sixth husband, and
limited education/intelligence. The administrative law judge (ALJ) determined
that appellant had the residual functional capacity (RFC) for light work (six hours
sitting, standing, or walking and ten to twenty pounds lifting, carrying, pushing,
or pulling) with the following non-exertional restrictions: limited to tasks
requiring only occasional stooping and “simple, repetitive tasks” with “only
incidental contact with the public” and “no requirement for making change.”
Aplt. App., Vol. II at 20. The ALJ further determined that appellant could not
return to her past w ork as a motel clerk, id. at 21, but could do the job of deli
cutter w ith her RFC, id. at 22.
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At the December 3, 2003 hearing, Dr. D ennis A. Rawlings, Ph.D., a
consulting mental health professional, testified about appellant’s mental
impairments and restrictions. He said that “[i]t is possible that she may not be
able to maintain competitive employment,” but that he would like to do more
testing before drawing a conclusion about her restrictions. Id. at 190. The ALJ
agreed and the recommended additional testing was done. See id. at 139-50.
After Dr. Rawlings did his additional tests, part of his detailed response was to
fill out a mental RFC form, on which he marked appellant moderately impaired in
seven out of ten functional categories. Id. at 149-50.
Appellant argues that the ALJ’s RFC determination reflects restrictions
consistent with the three impairments Dr. Raw lings marked on his form
concerning understanding, remembering, and carrying out detailed instructions
and dealing with the public, but inexplicably rejects the other four restrictions
concerning appellant’s ability to deal appropriately with supervisors and
coworkers and respond appropriately to workplace pressures and changes. See
Aplt. Opening Br. at 16-17. Appellant argues that the case should be remanded
because the A LJ failed to explain w hy he rejected some of D r. Rawlings’
restrictions while seemingly adopting others. Appellant relies primarily on
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996), in w hich this court
held that the ALJ is not required to discuss every piece of evidence, but “in
addition to discussing the evidence supporting his decision, the A LJ also must
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discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.” Appellant argues that the evidence at
issue here is uncontroverted.
The government never addresses Clifton or appellant’s argument that the
ALJ failed to explain his reasons for rejecting some of D r. Rawlings’ restrictions,
while implicitly adopting others. Rather, the government supplies some reasons
that it believes would support the ALJ’s RFC finding. The ALJ did not provide
these explanations, however. As appellant correctly points out in her reply brief,
this court may not create or adopt post-hoc rationalizations to support the A LJ’s
decision that are not apparent from the ALJ’s decision itself. See, e.g., Allen v.
Barnhart, 357 F.3d 1140, 1142, 1145 (10th Cir. 2004) (holding that district
court’s “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”); see also Robinson v. Barnhart, 366 F.3d
1078, 1084-85 (10th Cir. 2004) (per curiam) (same); SEC v. Chenery Corp.,
318 U.S. 80, 88 (1943).
In addition, the government argues that a “moderate” impairment, as
defined on the mental RFC form, means that the “individual is still able to
function satisfactorily.” A plt. App., Vol. II at 149. Appellant shows in the reply
brief, however, that the government has taken the definition for “moderate” on the
mental RFC form out of context— a moderate impairment is not the same as no
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impairment at all, and Dr. Rawlings clearly intended to indicate impairments on
this form. See id. at 149-50. W e note that the ALJ also appeared to accept that a
moderate impairment was not the same as no impairment at all. By including in
his RFC determination that appellant was limited to “simple, repetitive tasks”
with “only incidental contact with the public” and “no requirement for making
change,” id. at 20, the ALJ apparently accepted that appellant is not able to
“[u]nderstand and remember detailed instructions,” “[c]arry out detailed
instructions,” or “[i]nteract appropriately with the public,” all categories that
Dr. Rawlings marked as moderately impaired, id. at 149-50.
Finally, the evidence on which the ALJ explicitly relied in his decision
does not imply an explanation for rejecting any of Dr. Rawlings’ restrictions on
the mental RFC form, and, in fact, the ALJ never stated that he rejected
Dr. Rawlings’ opinion. See id. at 17-18, 21. As noted above, the rejected
moderate restrictions deal with appellant’s ability to deal appropriately with
supervisors and coworkers and respond appropriately to workplace pressures and
changes. See Aplt. Opening Br. at 16-17. Although the A LJ noted appellant’s
testimony that she can work two to six hours per day as caretaker for her mother,
Aplt. App., Vol. II at 21, that evidence does not show that appellant has the
“residual functional capacity for w ork activity on a regular and continuing basis,”
20 C.F.R. § 416.945(c), that is, “8 hours a day, for 5 days a week, or an
equivalent work schedule,” S.S.R. 96-8p, 1996 W L 374184, at *2, and to
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“respond appropriately to supervision, coworkers, and customary work pressures
in a routine work setting,” S.S.R. 86-8, 1996 W L 68636, at *5.
W e therefore agree that the ALJ should have explained why he rejected
four of the moderate restrictions on Dr. Rawlings’ R FC assessment while
appearing to adopt the others. An 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. See, e.g., Robinson, 366 F.3d at 1083; Hamlin v.
Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004). Although the government is
correct that the ALJ is entitled to resolve any conflicts in the record, see
Richardson v. Perales, 402 U.S. 389, 399 (1971); Casias v. Sec’y of Health &
Human Servs., 933 F.2d 799, 801 (10th Cir. 1991), the ALJ did not state that any
evidence conflicted with Dr. Rawlings’ opinion or mental RFC assessment. So it
is simply unexplained why the ALJ adopted some of Dr. Rawlings’ restrictions
but not others. W e therefore remand so that the A LJ can explain the evidentiary
support for his RFC determination.
The judgment of the district court is REVERSED and the case is
REM ANDED with instructions to remand to the agency for additional
proceedings.
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