MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND1

STEVEN C. YARBROUGH, Magistrate Judge.

THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 12) filed October 27, 2017, in support of Plaintiff Garth Alan Finley's ("Plaintiff") Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, ("Defendant" or "Commissioner") denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On January 31, 2018, Plaintiff filed his Motion to Remand or Reverse ("Motion"). Doc. 18. The Commissioner filed a Response in opposition on May 2, 2018 (Doc. 22), and Plaintiff filed a Reply on May 16, 2018 (Doc. 24). The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

I. Background and Procedural Record

Claimant Garth Alan Finley ("Mr. Finley") alleged that he became disabled on July 31, 2008, at the age of thirty-eight because of Crohn's disease, irritable bowel syndrome, stomach ulcers, intestinal polyps, high blood pressure, elevated cholesterol, fainting and seizures, chronic depression and anxiety, and random periods of drinking alcohol. Tr. 219, 227.2 Mr. Finley completed four of more years of college in 1995, and worked as an engineering consultant for NASCAR. Tr. 228-30, 236, 239-54.

On February 23, 2009, Mr. Finley protectively filed his first application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq. (Tr. 115, 187-93.) Mr. Finley concurrently filed for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 116.) Mr. Finley's applications were initially denied on August 18, 2009, and November 23, 2009. (Tr. 115-118, 123-27.) They were denied again at reconsideration on September 20, 2010, and March 21, 2011. (Tr. 119-22 130-33, 134-37.) On May 20, 2011, Mr. Finley requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 140-41.) ALJ Ben Willner conducted a hearing on July 12, 2012. (Tr. 33-80.) Mr. Finley appeared in person at the hearing with attorney representative Michael F. Becker. (Id.) On December 12, 2012, ALJ Willner issued an unfavorable decision. (Tr. 7-25.) On June 24, 2014, the Appeals Council issued its decision denying Mr. Finley's request for review and upholding the ALJ's final decision. (Tr. 1-5.) On August 18, 2014, Mr. Finley timely filed a Complaint seeking judicial review of the Commissioner's final decision. (See USDC NM Civ. No. 14-736 SCY (Doc. 1).)

Upon judicial review, the Court reversed the Commissioner's decision and remanded Mr. Finley's claim to the Commissioner to conduct further proceedings. Tr. 1045-58. The Court instructed the Commissioner that on remand, "the ALJ shall ensure that all medical evidence in the record is considered at Step Four, Phases One and Two of the sequential analysis." Tr. 1058.

Before the ALJ rendered a new decision on remand, Mr. Finley filed second applications for DIB and SSI. Tr. 1257-58, 1263-68. Mr. Finley's second applications were initially denied on February 26, 2015. Tr. 1005, 1006, 1007-14, 1015-22, 1135. They were denied again at reconsideration on December 3, 2015. Tr. 990-1004, 1023, 1024, 1025-39, 1136-39, 1140-43. On January 27, 2016, Mr. Finley requested a hearing from an ALJ. Tr. 1144-45. On March 21, 2016, the Appeals Council entered an Order vacating the ALJ Willner's decision, and explained that

Tr. 1042. ALJ Lillian Richter conducted a hearing on February 2, 2017.3 Tr. 911. Because Mr. Finley passed away prior to the hearing, Nancy Finley, Mr. Finley's mother, appeared on his behalf. Id. Mr. Finley was represented by Attorney Michael Armstrong. Id. On March 14, 2017, ALJ Richter issued an unfavorable decision. Tr. 908-26. Because this case had already been remanded following judicial review, Mr. Finley timely filed the instant action, rather than requesting review by the Appeals Council, as permitted by 20 C.F.R. § 416.1484(d). Doc. 1.

II. Applicable Law

A. Disability Determination Process

An individual is considered disabled if he is unable "to engage in any substantial gainful activity by reason of any 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." 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

When, as here, there is medical evidence of drug addiction and alcoholism (DAA) in the record, the ALJ must add a sixth step to the evaluation. That step requires the ALJ to determine whether DAA is a "material contributing factor" to the claimant's disability. 20 C.F.R. §§ 404.1535(a) and 416.935(a). In making this determination, the "ay factor . . . is whether [the ALJ] would still find [claimant] disabled if [claimant] stopped using drugs or alcohol." 20 C.F.R. §§ 404.1535(b)(1) and 416.935(b)(1); see also SSR 13-02p, 2013 WL 621536. The ALJ must identify which of the claimant's physical and/or mental limitations, upon which the threshold disability determination was based, would remain if the clamant stopped using drugs or alcohol. Then the ALJ must determine whether any or all of the remaining limitations would be disabling. 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). If the ALJ finds that a claimant's remaining limitations would not be disabling, then DAA is a "material contributing factor" to the claimant's disability, and the ALJ must find the claimant is not disabled. 20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i); see also SSR 13.02p. If the ALJ finds the remaining limitations would in and of themselves be disabling, then the ALJ must find that the claimant is disabled. 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii).

B. Standard of Review

This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by "substantial evidence" or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court "neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'" Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by "relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. A decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record[,]" Langley, 373 F.3d at 1118, or "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must "provide this court with a sufficient basis to determine that appropriate legal principles have been followed." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, "the record must demonstrate that the ALJ considered all of the evidence," and "the [ALJ's] reasons for finding a claimant not disabled" must be "articulated with sufficient particularity." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

III. Analysis

The ALJ followed the proper sequential evaluation process by including alternative findings at step three, four and five of the sequential evaluation to account for Mr. Finley's limitations with and without DAA. The ALJ also made the sixth step finding required in such cases by determining whether Mr. Finley would still be disabled if he stopped using alcohol. At step one, the ALJ found that Mr. Finley met the insured status requirements through December 31, 2013, and had not engaged in substantial gainful activity since his alleged onset date of July 31, 2008. Tr. 914. At step two, the ALJ determined that Mr. Finley had severe impairments of right ankle and foot stress fracture and tendinopathy, ethanol dependence, anxiety, thumb tendonitis, chronic mild depression, chronic back pain with thoracic scoliosis, benzodiazepine dependence, bipolar disorder, and bilateral foot edema with right ankle pain. Id. The ALJ also found Mr. Finley had nonsevere impairments of hypercholesterolemia, hypercalcemia, benzodiazepine dependence [sic], and irritable bowel syndrome. Id. At step three, the ALJ determined that with or without considering DAA, Mr. Finley did not have an impairment or combination of impairments that meets or equals the severity of one of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 914-16, 918. At step four, the ALJ determined Mr. Finley's residual functional capacity including DAA as follows:

Tr. 916. The ALJ's alternative RFC did not include the effects of DAA as follows:

Tr. 919. At the second phase of step four, the ALJ determined that with or without considering the effects of DAA, Mr. Finley could not perform the exertional demands of his past relevant work. Tr. 917, 924. At the fifth step of the sequential evaluation, the ALJ found there were no jobs existing in significant numbers that Mr. Finley could perform when the effects of DAA were considered. Tr. 917-18. Because the ALJ found Mr. Finley's DAA material to his disability, however, the ALJ was required to formulate a second RFC without considering the effects of DAA. Based on the second RFC and the testimony of the VE, the ALJ concluded that if Mr. Finley stopped using alcohol, there were jobs that existed in significant numbers in the national economy that he could perform. Tr. 924-25. The ALJ, therefore, determined that Mr. Finley was not disabled. Tr. 925.

In his Motion, Mr. Finley argues that the ALJ (1) failed to properly account for the opinions of his treating psychiatrists;5 (2) failed to properly account for certain opinions of the State agency examining and nonexamining psychological consultants; and (3) failed to conduct a proper DAA evaluation in accordance with SSR 13-2p. Doc. 18 at 14-16. For the reasons discussed below, the Court finds the ALJ did not apply the correct legal standard in weighing the treating physician opinion evidence related to Mr. Finley's mental impairments and that this case, therefore, requires remand.

A. Relevant Medical Source Opinion Evidence

1. Cathy Simutis, Ph.D.

On February 18, 2011, State agency examining psychological consultant Cathy Simutis, Ph.D., evaluated Mr. Finley. Tr. 801-03. Mr. Finley reported that he was not able to work because of his anxiety and depression, and because his "ability to get along with people [was] questionable." Tr. 801. Dr. Simutis took Mr. Finley's family, training, work, and medical histories, and noted his reported activities of daily living. Tr. 801-02. When asked if he was currently using alcohol, Mr. Finley responded, "I try not to," and explained that he drinks to calm himself down. Tr. 802. On mental status exam, Dr. Simutis observed that Mr. Finley was alert and oriented times three, maintained good eye contact, was cooperative, and had slow speech at a tone within normal limits. Tr. 803. She also observed that Mr. Finley had visible tremors, and appeared agitated, anxious and depressed. Id. Dr. Simutis noted that Mr. Finley reported visual and auditory hallucinations, some suicidal and homicidal ideation without having a plan or intent, and feeling down, hopeless and more forgetful. Id. Dr. Simutis diagnosed generalized anxiety disorder; bipolar disorder, depressed; and alcohol abuse, early partial remission. Id. She assessed a GAF score of 35.6 Tr. 802. Dr. Simutis assessed that

Tr. 803.

2. Alvin Smith, Ph.D.

On March 19, 2011, State agency nonexamining psychological consultant Alvin Smith, Ph.D., reviewed the medical record evidence7 and prepared a Mental Residual Functional Capacity Assessment ("MRFCA"). Tr. 806-07. In Section I of the MRFCA, Dr. Smith concluded that Mr. Finley had mostly slight limitations in each of the four broad categories,8 with the exception of moderate limitations in his ability to (1) maintain attention and concentration for extended periods; (2) work in coordination with or proximity to others without being distracted by them; (3) interact appropriately with the general public; (4) accept instructions and respond appropriately to criticism from supervisors; and (5) get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Id. Based on his Section I conclusions, Dr. Smith assessed in Section III of the MRFCA that Mr. Finley

Tr. 808.

3. Steven Jenkusky, M.D.

a. July 6, 2012

On. July 6, 2012, Mr. Finley's treating psychiatrist Steven C. Jenkusky, M.D., completed a 12.04 Depression Listings Questionnaire Affective Disorders and 12.06 Anxiety Listings Questionnaire and indicated that Mr. Finley met the Part A, B and C criteria of those listings. Tr. 896-99, 900-02. Dr. Jenkusky had been treating Mr. Finley since October 5, 2011, and had seen him four times when he completed the listings forms.9 Tr. 825-34. Dr. Jenkusky explained that "[d]ue to the persistent nature of illness which to this point has not been successfully treated[, Mr. Finley] has not been able to maintain employment." Tr. 899, 902.

b. May 28, 2015

On May 28, 2015, Dr. Jenkusky completed a Medical Assessment of Ability To Do Work-Related Activities (Mental) on Mr. Finley's behalf. Tr. 1446-47. Dr. Jenkusky had been treating Mr. Finley for approximately four years and had seen him eighteen times when he completed this assessment.10 Tr. 825-34, 1387-95, 1400-04, 1464-66. Dr. Jenkusky assessed that Mr. Finley had moderate limitation in his ability to (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) work in coordination with/or proximity to others without being distracted by them; (4) interact appropriately with the general public; (5) accept instructions and respond appropriately to criticism from supervisors; and (6) set realistic goals or make plans independently of others. Tr. 1446-47. He assessed that Mr. Finely had marked limitations in his ability to (1) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; (2) complete a normal workday and workweek without interruptions from psychological based symptoms and to perform at a consistent pace without unreasonable number and length of rest periods; and (3) respond appropriately to changes in the work place. Id. Dr. Jenkusky assessed that Mr. Finley vacillated from slight to marked limitations in his ability to maintain attention and concentration for extended periods of time (i.e., 2-hour segments). Tr. 1446. Dr. Jenkusky explained that Mr. Finley "alternate[d] between periods of intense focus (but isolated from others) to periods of extreme lethargy, no motivation and impaired functioning." Tr. 1447.

c. February 18, 2016

On February 18, 2016, Dr. Jenkusky completed a second Medical Assessment of Ability To Do Work-Related Activities (Mental) on Mr. Finley's behalf. Tr. 1381-82. Dr. Jenkusky had been treating Mr. Finley for approximately four years and a half years and had seen him twenty-four times when he completed this assessment. Tr. 825-34, 1387-95, 1400-04, 1464-66, 1599-1608. Dr. Jenkusky's assessment was consistent with his May 28, 2015, assessment. Compare Tr. 1381-82, and 1446-47. Dr. Jenkusky explained that Mr. Finley "alternate[d] between periods of intense focus, but only if isolated from others, to periods of extreme lethargy, depression, no motivation, poor concentration and impaired functioning." Tr. 1382.

On. February 18, 2016, Dr. Jenkusky also completed 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders listing forms, and indicated that Mr. Finley met the Part A and B criteria of those listings. Tr. 1383-84.

4. Scott Walker, M.D.

On December 2, 2015, nonexamining State agency medical consultant Scott Walker, M.D., reviewed the medical record evidence11 and prepared an MRFCA. Tr. 1000-01. In Section I of the MRFCA, Dr. Walker concluded that Mr. Finley had moderate limitations in his ability to (1) maintain attention and concentration for extended periods; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (3) work in coordination with or in proximity to others without being distracted by them; (4) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) interact appropriately with the general public; (6) accept instructions and respond appropriately to criticism from supervisors; (7) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (8) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; (9) respond appropriately to changes in the work setting; (10) travel in unfamiliar places or use public transportation; and (11) set realistic goals or make plans independently of others. Id. Based on his Section I conclusions, Dr. Walker assessed in Section III of the MRFCA that Mr. Finley

Tr. 1001.

B. The ALJ's Explanations for Discounting Dr. Jenkusky's Opinions Are Insufficient and Not Supported by Substantial Evidence

The ALJ stated she applied the treating source rule to Dr. Jenkusky's opinions, declined to give them controlling weight, and then accorded them only "some" weight. She explained as to Dr. Jenkusky's July 6, 2012, listing questionnaires, that

Tr. 923.

As to Dr. Jenkusky's May 28, 2015, opinion, she explained that

Tr. 923.

Finally, as to Dr. Jenkusky's February 18, 2016, opinion, the ALJ explained that

Tr. 924.

Mr. Finley argues that the ALJ violated the treating physician rule by applying an improper legal standard when she evaluated Dr. Jenkusky's opinion. Doc. 18 at 14-19. In support, Mr. Finley asserts that the ALJ's explanation that Dr. Jenkusky's opinions are internally inconsistent is illusory because the ALJ failed to appreciate the distinction between the listings forms and the functional assessment forms Dr. Jenkusky completed. Id. at 16. Mr. Finley further asserts that the ALJ ignored the fluctuating nature of Mr. Finley's mental impairments, improperly picked from Dr. Jenkusky's treatment notes and cited to a "good" day, and wrongly conflated signs of improvement with the lack of disabling functional capacity. Id. at 16-18. Finally, Mr. Finley asserted that the ALJ failed to consider all of the Watkins "deference" factors in weighing Dr. Jenkusky's opinions. Id.

The Commissioner contends that the ALJ gave valid reasons for according Dr. Jenkusky's opinions some weight and that substantial evidence supports her decision. Doc. 22 at 17-19. The Commissioner argues that it was reasonable for the ALJ to discount Dr. Jenkusky's opinions based on his failure to address Mr. Finley's use of alcohol in his assessments. Id. at 17. The Commissioner further argues that the ALJ properly noted the inconsistencies between Dr. Jenkusky's assessments in the listings forms and functional assessment forms, as well as the inconsistencies between Dr. Jenkusky's opinions and his treatment notes. Id. at 17-19.

While the ALJ did not go through each of the regulatory factors in weighing Dr. Jenkusky's opinions, she did provide some reasons for finding that his opinions were not supported. First, she explained that Dr. Jenkusky's opinions failed to address the impact of Mr. Finley's substance abuse. Second, she explained that there was an internal inconsistency related to Mr. Finley's social functioning between the listings forms and functional assessment forms Dr. Jenkusky completed. Finally, she explained that Dr. Jenkusky's opinions were inconsistent with his treatment notes. As set forth below, the ALJ's explanations are insufficient and not supported by substantial evidence.

The ALJ discounted Dr. Jenkusky's opinions because they failed to address the impact of Mr. Finley's substance abuse on his ability to function. The Court finds this explanation insufficient because it presumes that Dr. Jenkusky could distinguish between the effects of Mr. Finley's mental disorders and his alcohol abuse and, had he done so, his assessments would have been less restrictive. This is improper speculation. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (finding that 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 medial evidence and not due to his or her own credibility judgments, speculation or lay opinions). Moreover, Tenth Circuit case law instructs that "where the record is devoid of any medical or psychological report, opinion, or projection as to the claimant's remaining limitations if [he] stopped using drugs or alcohol, an ALJ should find that DAA is not a contributing factor material to the determination of disability." Salazar v. Barnhart, 468 F.3d 615, 624 (10th Cir. 2006). Thus, fairly read, where a medical opinion does not project functional limitations if a claimant stopped using alcohol, the absence of that information goes only to the ALJ's materiality determination and is, therefore, not a proper basis for discounting an opinion.12 Furthermore, given the nonadversarial nature of these proceedings, the ALJ could have chosen to make inquiry and obtain the information she found lacking before reaching her conclusions. Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (explaining that the standard for developing the record is one of reasonable good judgment limited to fully and fairly developing the record as to material issues).

The ALJ also discounted Dr. Jenkusky's opinions because of the "internal inconsistency" between Dr. Jenkusky's marked limitation of Mr. Finley's social functioning on the listings forms and slight and moderate limitations of social functioning on the functional assessment forms. In doing so, however, the ALJ failed to account for the distinction between the two forms. The listings forms are generally used to assess mental impairment for purposes of steps two (identifying severe impairments) and three (rating severity for the listing), and are structured specifically in terms of the B and C criteria of the listings for mental impairments.13 See generally Chrisom v. Colvin, 531 F. App'x 893, 898 (10th Cir. 2013) (unpublished)14; see also 20 C.F.R. §§ 404.1502a, 416.920a; POMS DI 34132.009.A Mental Listing from 12/18/07 to 09/28/2016.15 The forms use four broad categories of limitations referenced in the B criteria: restriction of activities of daily living; difficulties in maintain social functioning; difficulties in maintaining concentration, persistence, or pace; and episodes of decompensation. Chrisom, 531 F. App'x at 898. In contrast, the MRFCA addresses twenty specific mental functions relevant to the vocational determinations required at steps four and five. Lull v. Colvin, 535 F. App'x 683, 685 (10th Cir. 2013) (unpublished). Thus, "inconsistent" assessments between the forms can be explained by their distinct functions. Further, persuasive Tenth Circuit case law holds that in the face of inconsistencies between the two forms, the ALJ should rely on the MRFCA to determine a claimant's RFC. See generally Chrisom, 531 F. App'x at 898 (finding that claimant's objection to the inconsistency between the MRFCA and PRT was meritless because the MRFCA explained the particularized underpinnings for the PRT's categorical ratings, and the ALJ properly used the MRFCA for the step-five determination); Lull, 535 F. App'x at 685 (finding that the ALJ did not err in failing to account for the inconsistencies between the PRT and MRFCA because the ALJ's RFC determination properly included the limitations in the MRFCA assessment). Here, the ALJ did not rely on Dr. Jenkusky's functional assessments, but instead, noting only one area of inconsistency between the two forms; i.e., social functioning, she chose to discount the entirety of Dr. Jenkusky's assessed limitations in all areas of functioning without further explanation. This is insufficient.

Finally, the ALJ discounted Dr. Jenkusky's opinions stating they were not supported by his treatment notes. In support of her explanation, the ALJ cited one treatment note, out of twenty-four, to support that Mr. Finley was doing well on medication, was sober, and that his mood and affect were okay.16 The ALJ's explanation, however, is conclusory and fails to account for all of Dr. Jenkusky's treatment notes, including those that reflected the persistent nature of and ongoing treatment for Mr. Finley's mental impairments. See generally Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) (explaining that a treating physician's references to a claimant being "stable" while also consistently reporting that claimant was unable to work as a result of her mental illness may have simply meant that the claimant was not suicidal). As discussed above, Dr. Jenkusky began treating Mr. Finley on October 5, 2011, at which time he assessed that, in addition to alcohol dependence, Mr. Finley had "rapid mood shifts from depression to being `hyperfunctioning' as well as concurrent anxiety." Tr. 834. Dr. Jenkusky managed Mr. Finley's medications related to his mental impairments for over five years, and consistently indicated that he was treating Mr. Finley for mood disorder in the context of recovery from alcohol dependence. While Dr. Jenkusky's treatment notes during that time often indicated that Mr. Finley was stable and sober and taking his medications as prescribed, they also indicated continued problems with fluctuation in mood, ongoing anxiety and depression, and periods of relapse. Tr. 827-29, 830-31, 832-34, 1388, 1391-92, 1392-93, 1393-94, 1400-01, 1403-04, 1464-65, 1607. Thus, the ALJ relied on one of Dr. Jenkusky's more positive findings to discount his opinions, but failed to discuss significantly probative evidence. This is error. Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996).

For all of the foregoing reasons, the Court finds that the ALJ's explanations for discounting Dr. Jenkusky's opinions are insufficient and not supported by substantial evidence.

C. The ALJ's Treating Physician Analysis Is Improper

An ALJ should generally give more weight to a treating source opinion 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[.]" Robinson, 366 F.3d at 1084; Watkins, 350 F.3d at 1300. Thus, all things being equal, the opinion of a treating doctor who has seen a claimant more is placed above the opinion of a physician who has only examined a claimant once, and above a physician who has never seen the claimant at all and only reviewed the medical record. Robinson, 377 F.3d at 1084. Here, the ALJ accorded Dr. Jenkusky's opinions "some weight." Tr. 922-23. However, in doing so, the ALJ did not cite to any other medical source opinion evidence related to Mr. Finley's mental impairments that outweighed his opinions. To the contrary, the ALJ accorded all of the other medical opinion evidence "some weight." This begs the question, "if the ALJ is giving only `some weight' to all of the opinions, to whose opinion is the ALJ deferring?" An ALJ, who is not a medical provider, must rely on medical providers to determine a claimant's medical condition. Here, it is not clear to the Court what evidence the ALJ relied on to discount Dr. Jenkusky's opinions, particularly since, as discussed below, Dr. Jenkusky's assessments were mostly consistent with the other medical source opinion evidence related to Mr. Finley's ability to do work-related mental activities.

The ALJ failed to demonstrate how Dr. Jenkusky's opinions were inconsistent with the other medical opinion evidence related to Mr. Finley's mental impairments. This is troubling since the Court's review of the evidence demonstrates that they are not inconsistent as follows. (1) Dr. Jenkusky assessed that Mr. Finley had a moderate limitation in his ability to understand and remember detailed instructions. Tr. 1381, 1446. Dr. Simutis assessed the same moderate limitation. Tr. 803. (2) Dr. Jenkusky assessed that Mr. Finley had a moderate limitation in his ability to work in coordination with others. Tr. 1381, 1446. Dr. Smith and Dr. Walker assessed the same moderate limitation, Tr. 806, 1000, and Dr. Simutis assessed that Mr. Finley had a marked limitation in this area. Tr. 803. (3) Dr. Jenkusky assessed that, when in a period of lethargy and depression, Mr. Jenkusky had a marked limitation in his ability to maintain attention and concentration for extended periods of time. Tr. 1381, 1446. Dr. Simutis assessed the same marked limitation, Tr. 803, and both Dr. Smith and Dr. Walker assessed that Mr. Finley had a moderate limitation in this area. Tr. 806, 1000. (4) Dr. Jenkusky assessed that Mr. Finley had a marked limitation in his ability to perform activities within a schedule and maintain regular attendance. Tr. 1381, 1446. Dr. Walker assessed Mr. Finley had a moderate limitation in this area. Tr. 1000. (5) Dr. Jenkusky assessed that Mr. Finley had a marked limitation in his ability to complete a normal work week or work day without interruptions. Tr. 1381, 1446. Dr. Walker assessed that Mr. Finley had a moderate limitation in this area. Tr. 1000. (6) Finally, Dr. Jenkusky assessed that Mr. Finley had a marked limitation in his ability to adapt to change. Tr. 1382, 1447. Dr. Simutis assessed that Mr. Finley had a mild limitation in this area, Tr. 803, and Dr. Walker assessed that he had a moderate limitation in this area. Tr. 1001. In sum, all of Dr. Jenkusky's assessed limitations were either supported in full or in part by the other medical source opinion evidence related to Mr. Finley's ability to do work-related mental activities.17 And the ALJ failed to explain why she accepted some of his limitations but rejected others. This is error. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (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).

For all of the foregoing reasons, the Court finds that the ALJ failed to apply the correct legal standard in weighing Dr. Jenkusky's opinions. This is error.

D. Remaining Issues

The Court will not address Mr. Finley's remaining claims of error because they may be affected by the ALJ's treatment of this case on remand. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

IV. Conclusion

For the reasons stated above, Mr. Finley's Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (Doc. 18) is GRANTED.