                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 20 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    RUBEN VALDEZ,

                Plaintiff - Appellant,

    v.                                                 No. 01-1531
                                                   (D.C. No. 00-N-1429)
    JO ANNE B. BARNHART, *                            (D. Colorado)
    Commissioner of Social Security
    Administration,

                Defendant - Appellee.


                            ORDER AND JUDGMENT         **




Before O’BRIEN and PORFILIO , Circuit Judges, and       KANE , *** Senior District
Judge.




*
      On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
appellee in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
***
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
       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.

       Plaintiff Ruben Valdez appeals from the denial of his claim for social

security disability insurance and supplemental security income (SSI) benefits,

arguing that the administrative law judge (ALJ) improperly assessed his physical

and mental impairments. We have jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g). We review the agency’s decision on the whole record to

determine only whether the factual findings are supported by substantial evidence

and the correct legal standards were applied.     Goatcher v. United States Dep’t of

Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may “neither

reweigh the evidence nor substitute our judgment for that of the agency.”      Casias

v. Secretary of Health & Human Servs.     , 933 F.2d 799, 800 (10th Cir. 1991).

Based on this standard of review, we affirm the denial of disability benefits and

reverse the denial of SSI benefits.

       Plaintiff was born on February 12, 1950, and is fifty-three years old this

year. In school, he completed the ninth grade in special education classes.     See

Aplt. App. at 298, 329. He has had many short-term jobs.        See id. at 163-67. His

past relevant work was as a construction laborer, which involved cleaning up and


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sweeping floors, but very little lifting. His insured status expired on

September 30, 1990. He filed a claim for disability and SSI benefits in 1989,

which was denied by the agency on January 29, 1990. Plaintiff did not further

pursue that claim. He filed the current applications in 1996, alleging a disability

beginning on September 30, 1990, based on residuals from an accident in which

a vehicle he was working under fell on him, crushing his right scapula; diabetes;

pain in his legs; high blood pressure; and mental impairments.

      The ALJ reviewed the period from January 30, 1990, through

September 30, 1990, for purposes of disability insurance benefits. The ALJ

reviewed the period from January 10, 1996, through May 28, 1998, for purposes

of SSI benefits. The ALJ denied both applications in a decision dated May 28,

1998, and the Appeals Council denied review, making the ALJ’s decision the

final agency decision.

      The district court affirmed the ALJ’s decision. The court reviewed the

medical evidence and the ALJ’s reasoning. The court deferred to the ALJ’s

credibility assessment, and decided that the ALJ’s conclusions about plaintiff’s

impairments and limitations were consistent with the record as a whole.

      On appeal, plaintiff argues that the ALJ: (1) violated the treating physician

rule when he rejected a treating psychologist’s opinion about plaintiff’s mental

impairments based on his own opinion that plaintiff was not credible in describing


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his symptoms; (2) failed to adequately and fully address plaintiff’s psychological

residual functional capacity (RFC); (3) failed to consider plaintiff’s physical and

mental impairments in combination; and (4) erred in finding that plaintiff could

perform his past relevant work or other work because his hypothetical question to

the vocational expert was faulty. Plaintiff’s arguments do not challenge the

ALJ’s reasoning or conclusion with regard to his application for disability

insurance benefits. We therefore affirm that denial. However, plaintiff’s issues

have merit with regard to his SSI claim.


           I. Assessment of Plaintiff’s Evidence of Mental Impairments

      Because the time period for plaintiff’s SSI claim is not delimited by the

expiration of his insured status, the ALJ was required to address plaintiff’s

evidence of mental and physical impairments arising after September 30, 1990.

This includes all of the evidence of plaintiff’s mental impairments. The ALJ

denied plaintiff’s SSI claim first at step four, finding that despite the additional

evidence relevant to the period under review, plaintiff retained the RFC for

medium work and therefore could return to his past work.      See generally Williams

v. Bowen , 844 F.2d 748, 750-52, (10th Cir. 1988) (discussing five-step

evaluation). In the alternative, the ALJ found at step five that, based on the

testimony of a vocational expert, there were jobs other than his past work that

plaintiff could do. A central factor to the ALJ’s analysis was his determination

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that plaintiff’s testimony concerning his symptoms was not credible. Because the

ALJ did not believe plaintiff, he also rejected the conclusions of the psychologist

who treated plaintiff, and of the psychiatrist and psychologist who examined

plaintiff, because their opinions were based, in part, on his complaints. The ALJ

relied instead on the less restrictive opinion of the agency’s psychologist who

reviewed plaintiff’s medical records, but who never examined or treated plaintiff.

This analysis was flawed.

       An ALJ is required to consider every medical opinion in the record.

20 C.F.R. § 416.927(d). The weight an ALJ must give each opinion, however,

varies according to the relationship between the medical professional and the

claimant. See id. An ALJ is required to give “controlling weight” to a treating

source’s opinion, so long as it is “well-supported” and “is not inconsistent with

the other substantial evidence in [the] record.”      Id. § 416.927(d)(2). “When a

treating [source’s] opinion is inconsistent with other medical evidence, the ALJ’s

task is to examine the other [sources’] reports to see if they outweigh the treating

[source’s] report, not the other way around.”       Goatcher , 52 F.3d at 290

(quotations omitted). If an ALJ rejects a treating source’s opinion, he must

articulate “specific, legitimate reasons” for his decision.    Id. ; see 20 C.F.R.

§ 416.927(d)(2)-(6). The opinion of an examining physician or psychologist is

generally entitled to less weight than that of a treating physician or psychologist,


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and the opinion of an agency physician or psychologist who has never seen the

claimant is generally entitled to the least weight of all.      See 20 C.F.R.

§ 416.927(d)(1), (2); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *2. If an ALJ

intends to rely on a nonexamining source’s opinion, he must explain the weight he

is giving it. 20 C.F.R. § 416.927(f)(2)(ii).

       The ALJ failed to follow these rules. Michael Schmidt, Ph.D., a

psychologist, began treating plaintiff in November 1996, and had seen him about

once every two weeks as of January 1998. Aplt. App. at 315. This makes

Dr. Schmidt plaintiff’s treating source. Dr. Schmidt’s opinion was that plaintiff

suffered with a borderline intellectual level, intermittent explosive disorder,

antisocial personality disorder, and alcohol abuse in remission, and that plaintiff

was disabled because he could not tolerate the stress of dealing with people or

being supervised even by family members.            Id. at 315-16.

       Plaintiff was also examined by a psychiatrist, Dr. Thomas J. Hurley, and

another psychologist, Brian L. Cox, Psy.D., in 1996. Dr. Hurley did not decide

whether plaintiff could work or not, but found that plaintiff’s mental impairments

included schizoaffective disorder (depressive type), mild mental retardation,

alcohol dependence, and avoidant personality disorder.           Id. at 216-18. Dr. Cox

also did not conclude whether plaintiff could work or not, but found that plaintiff

suffered from attention deficit/hyperactivity disorder (combined type), disorders


                                              -6-
of reading and written expression, alcohol dependency (early partial remission),

post-traumatic stress disorder (mild), and dysthymic disorder.        Id. at 294.

       A Dr. Wanstrath, a psychologist, reviewed plaintiff’s records and filled out

Psychiatric Review Technique and Mental Residual Functional Capacity

Assessment forms for the agency.       See id. at 140-54. Her opinion, based on

plaintiff’s records, was that plaintiff suffered from dysthymia, antisocial

personality disorder, and substance addiction disorder in recent remission, and

that he was restricted from more than a little contact with the general public.     Id.

at 143, 145, 146, 153. The ALJ’s findings of plaintiff’s diagnoses and

restrictions match Dr. Wanstrath’s findings, although the ALJ did not state

that he was accepting her opinion, let alone explain why.        See id. at 28-29

(findings 10, 12).

       The ALJ rejected Dr. Schmidt’s opinion, stating that it was based on

plaintiff’s complaints, which the ALJ found were not credible. This approach

impermissibly put the ALJ in the position of judging a medical professional on

how he should assess medical data–plaintiff’s complaints. An ALJ may not

substitute his lay opinion for a medical opinion.     See Sisco v. United States Dep’t

of Health & Human Servs. , 10 F.3d 739, 744 (10th Cir. 1993).

       In addition, the reasons the ALJ gave for his adverse credibility

determination are not supported by the record. The ALJ believed that plaintiff


                                             -7-
did not receive enough medical treatment and his motivation for seeking treatment

was only to support his claim for benefits. We reject both of these reasons.

Plaintiff received regular treatment from Dr. Schmidt during most of the period

under review for SSI benefits. Moreover, his claim for benefits must be

supported by medical evidence proving his alleged mental impairments.         See

42 U.S.C. § 423(d)(3); 20 C.F.R. §§ 416.908, 416.920a(b). A claimant’s

perceived lack of motivation to receive treatment is relevant if he unjustifiably

refuses treatment that would enable him to work.     See Thompson v. Sullivan ,

987 F.2d 1482, 1489-90 (10th Cir. 1993). Even then, however, the ALJ must

determine that such treatment was prescribed for the claimant and find out why

the claimant refused it.   See id. The ALJ made no such determination or inquiry

in this case. The ALJ also believed that plaintiff changed his story regarding the

existence and number of his past suicide attempts, hallucinations, and nightmares

in order to escalate his symptoms as he was seen by each successive doctor.         See

Aplt. App. at 26. The minor inconsistencies on these points do not support the

claimed escalation, however, and none of the medical professionals believed that

plaintiff exaggerated his symptoms. In addition, the most serious

diagnosis–schizoaffective disorder–was made by the first mental health

professional plaintiff saw, Dr. Hurley.




                                           -8-
       The ALJ rejected Dr. Hurley’s diagnosis of schizoaffective disorder

because the agency psychologist believed that the opinions of Dr. Schmidt and

Dr. Cox were sufficiently different from Dr. Hurley’s and sufficiently consistent

with each other to refute it.   Id. at 24. But other than using Dr. Cox’s opinion in

this way to defeat Dr. Hurley’s diagnosis, the ALJ otherwise disregarded

Dr. Cox’s diagnoses and restrictions.      See id. at 24-26. The ALJ is not entitled to

pick and choose through a medical opinion, using only those parts that are

favorable to a finding of nondisability.    Switzer v. Heckler , 742 F.2d 382, 385-86

(7th Cir. 1984).

       It is clear that the ALJ improperly rejected the treating and examining

sources’ opinions and improperly credited the agency psychologist’s opinion

without providing the required explanation. Because the ALJ failed to follow the

proper procedure in assessing plaintiff’s medical evidence of mental impairments,

the ALJ’s finding of nondisability must be reversed.


                    II. Psychological Residual Functional Capacity

       Plaintiff next argues that the ALJ failed to adequately and fully address his

psychological RFC. We agree.

       When a mental impairment is alleged, the ALJ must assess the claimant’s

mental RFC. 20 C.F.R. § 416.945(c). When a claimant suffers from a severe

mental impairment that does not meet or equal the criteria of the listings for

                                             -9-
mental disorders, “[t]he determination of mental RFC is crucial to the evaluation

of an individual’s capacity to engage in substantial gainful work activity.”   Id.

Pt. 404, Subpt. P, App. 1, § 12.00(A). The ALJ must assess the mental abilities

of “understanding, remembering, and carrying out instructions, and in responding

appropriately to supervision, co-workers, and work pressures in a work setting.”

Id. § 416.945(c). The rulings specify that

       [i]n assessing RFC, the adjudicator must discuss the individual’s
       ability to perform sustained work activities in an ordinary work
       setting on a regular and continuing basis (i.e., 8 hours a day, for 5
       days a week , or an equivalent work schedule), and describe the
       maximum amount of each work-related activity the individual can
       perform based on the evidence available in the case record. The
       adjudicator must also explain how any material inconsistencies or
       ambiguities in the evidence in the case record were considered and
       resolved.

Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7 (emphasis added) (footnote

omitted).

       In this case, the ALJ made no finding regarding plaintiff’s mental RFC,

except to find that he could not “have any contact with the general public.” Aplt.

App. at 29 (finding 12). Indeed, even if he had made a more explicit finding, it

would be tainted from his failure to explain his rejection of Dr. Schmidt’s opinion

of plaintiff’s diagnoses and restrictions.




                                            -10-
                                     Conclusion

      Because the ALJ improperly assessed plaintiff’s evidence of mental

impairments, it follows that he failed to properly consider plaintiff’s combination

of physical and mental impairments. And, because the ALJ improperly rejected

Dr. Schmidt’s opinion of plaintiff’s diagnosis and restrictions, the limitations

expressed in the hypothetical question he posed to the vocational expert are not

supported by substantial evidence. This is also reversible error, because the

hypothetical questions submitted to the vocational expert must state the claimant’s

impairments “with precision.”   Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir.

1991) (quotation omitted).

      Plaintiff’s motion to supplement his opening brief is granted. The district

court’s judgment is AFFIRMED in part, and REVERSED in part, and the case is

REMANDED for an immediate award of supplemental security income benefits.



                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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