MEMORANDUM OPINION AND ORDER

LAURA FASHING, Magistrate Judge.

THIS MATTER comes before the Court on plaintiff Casey Ray Vienna's Motion to Reverse and Remand for a Rehearing with Supportive Memorandum (Doc. 15), which was fully briefed on April 1, 2019. See Docs. 19, 20, 21. The parties consented to my entering final judgment in this case. Docs. 4, 7, 8. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge ("ALJ") impermissibly "picked and chose" among the moderate mental limitations noted by non-examining state agency psychologist Dr. Sheri Simon. I therefore GRANT Mr. Vienna's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

I. Standard of Review

The standard of review in a Social Security appeal is whether the Commissioner's final decision2 is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). "The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

"Substantial evidence is such relevant evidence as 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 or if there is a mere scintilla of evidence supporting it." Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include "anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). "`The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'" Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

II. Applicable Law and Sequential Evaluation Process

To qualify for disability benefits, a claimant must establish that he or she 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); 20 C.F.R. §§ 404.1505(a), 416.905(a).

When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in "substantial gainful activity"; (2) the claimant has a "severe medically determinable . . . impairment . . . or a combination of impairments" that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings3 of presumptively disabling impairments; or (4) the claimant is unable to perform his or her "past relevant work." 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her "past relevant work," the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity ("RFC"), age, education, and work experience. Id.

III. Background and Procedural History

Mr. Vienna was born in 1991, graduated from high school in 2009, and worked as a grocery store sacker, landscaper, and construction supervisor. AR 66, 221, 267.4 Mr. Vienna filed an application for Disability Insurance Benefits ("DIB") and an application for Supplemental Security Income ("SSI") on September 29, 2014, alleging disability since August 1, 2014 due to a Tarlov cyst, displaced lumbar intervertebral disc, degenerative arthritis, lumbosacral radiculopathy, lumbar facet arthropathy, sacroiliitis, disk herniation, a MCL ("medial collateral ligament") knee injury, lumbar spinal stenosis, and lumbar spasm. AR 219-29, 266. The Social Security Administration ("SSA") denied his claims initially on May 11, 2015. AR 145-51. The SSA denied his claims on reconsideration on October 7, 2015. AR 156-61. Mr. Vienna requested a hearing before an ALJ.5 AR 163-64. On March 2, 2017, ALJ Raul C. Pardo held a hearing. AR 31-74. ALJ Pardo issued his unfavorable decision on June 22, 2017. AR 9-30.

The ALJ found that Mr. Vienna met the insured status requirements of the Social Security Act through June 30, 2019. AR 14. At step one, the ALJ found that Mr. Vienna had not engaged in substantial, gainful activity since August 1, 2014, his alleged onset date. Id. At step two, the ALJ found that Mr. Vienna's degenerative disc disease status post surgery, depression, right knee damage, and obesity were severe impairments. Id. The ALJ found that Mr. Vienna's hypertension was a non-severe impairment. Id. At step three, the ALJ found that none of Mr. Vienna's impairments, alone or in combination, met or medically equaled a Listing. AR 15-16. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Vienna's RFC. AR 16-22. The ALJ found Mr. Vienna had the RFC to

AR 16-17.

At step four, the ALJ found that Mr. Vienna could not perform any of his past relevant work. AR 22-23. The ALJ found Mr. Vienna not disabled at step five because he could perform jobs that exist in significant numbers in the national economy, such as warehouse checker and router dispatcher. AR 23-24. On July 27, 2017, Mr. Vienna requested that the Appeals Council review the ALJ's unfavorable decision. AR 218. On June 22, 2018, the Appeals Council denied the request for review. AR 1-6. Mr. Vienna timely filed his appeal to this Court on August 16, 2018. Doc. 1.6

IV. Mr. Vienna's Claims

Mr. Vienna raises three arguments for reversing and remanding this case: (1) the ALJ impermissibly "picked and chose" among the moderate mental limitations noted by non-examining state agency psychologist Dr. Sheri Simon; (2) the ALJ's RFC is flawed because it fails to include a function-by-function assessment of Mr. Vienna's work-related abilities as required by SSR 96-8p; and (3) the ALJ's RFC is not supported by substantial evidence because the ALJ failed to adequately consider his statements about pain. See Doc. 15 at 2, 14-24.

Because the Court remands based on the ALJ's failure to properly analyze the opinion of Dr. Simon, the Court does not address the other alleged errors, which "may be affected by the ALJ's treatment of this case on remand." Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

V. Analysis

Although an ALJ need not discuss every piece of evidence, the ALJ must discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). Specifically, when assessing a plaintiff's RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996).7 "If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL 374184, at *7. "[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on [a specific] functional capacity" because "the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record." Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (alteration and internal quotation marks omitted); see also Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) ("exact correspondence between a medical opinion and the mental RFC is not required"). Nevertheless, "[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." Chapo, 682 F.3d at 1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). An ALJ "must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). Ultimately, an ALJ is required to weigh medical source opinions and to provide "appropriate explanations for accepting or rejecting such opinions." SSR 96-5p, 1996 WL 374183, at *5; see also Keyes-Zachary, 695 F.3d at 1161 ("It is the ALJ's duty to give consideration to all the medical opinions in the record," and to "discuss the weight he [or she] assigns to such opinions.").

In 2007, the Tenth Circuit Court of Appeals decided two cases that control here. First, in Haga, the court held that an ALJ erred in failing to explain why he adopted some of a consultative examiner's ("CE") restrictions but rejected others. 482 F.3d at 1208. "[T]he ALJ did not state that any evidence conflicted with [the CE's] opinion or mental RFC assessment. So it is simply unexplained why the ALJ adopted some of [the CE's] restrictions but not others." Id. The court remanded the case "so that the ALJ [could] explain the evidentiary support for his RFC determination." Id. Later in 2007, in Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007), the Tenth Circuit expressly applied Haga and its reasoning to the opinions of non-examining physicians.

A. The ALJ Erred by Failing to Either Incorporate, or Explain Why He Rejected, Moderate Mental Limitations Noted in the Medical Opinion of Dr. Shari Simon.

Mr. Vienna argues that the ALJ failed to account for all the moderate limitations in non-examining state agency consultant Dr. Simon's Mental Residual Functional Capacity Assessment ("MRFCA"). Doc. 15 at 14-19. Specifically, he argues that the ALJ failed to account for the moderate limitations Dr. Simon found in his abilities

Id. at 16. The Commissioner argues that the ALJ's RFC assessment is consistent with Dr. Simon's Section III findings,8 and that the ALJ was not required to discuss each of the moderate limitations in Section I of Dr. Simon's opinion. Doc. 19 at 12-13. Next, the Commissioner argues that both the ALJ's RFC and Dr. Simon's Section III findings "adequately captured the moderate limitations noted in Section I." Id. at 14. Alternatively, the Commissioner argues that there is no error because the ALJ only gave Dr. Simon's opinion partial weight, after "noting that the opinion was internally inconsistent." Id. at 16-17. The Court finds the Commissioner's arguments unpersuasive, and agrees with Mr. Vienna that the ALJ was required to either include, or to explain his reasons for rejecting, the moderate limitations noted in Section I of Dr. Simon's opinion.

An ALJ is required to consider and discuss both Section I and Section III findings.9 As the Honorable Stephan M. Vidmar thoroughly explained in his opinion rejecting similar arguments that an ALJ is not required to consider Section I findings, the Program Operations Manual System ("POMS"),10 regulations, and case law require the ALJ to address all of a doctor's findings, not just those in Section III. See Silva v. Colvin, 203 F.Supp.3d 1153, 1158-66 (D.N.M. 2016).11 An ALJ may rely exclusively on the Section III findings only if the "Section III narrative does not contradict any Section I limitations and describes the effect each Section I limitation would have on the claimant's mental RFC." Fulton v. Colvin, 631 F. App'x 498, 502 (10th Cir. 2015) (unpublished). The ALJ "should [not] turn a blind eye to any moderate limitations enumerated in Section I that are not adequately explained in Section III." Lee v. Colvin, 631 F. App'x 538, 541 (10th Cir. 2015) (unpublished). If a doctor's "Section III narrative fails to describe the effect that each of the Section I moderate limitations would have on the claimant's ability, or if it contradicts limitations marked in Section I, the MRFCA cannot properly be considered part of the substantial evidence supporting an ALJ's RFC finding." Carver v. Colvin, 600 F. App'x 616, 619 (10th Cir. 2015) (unpublished); see also Varga v. Colvin, 794 F.3d 809, 816 (7th Cir. 2015) ("[Section I] observations, while perhaps less useful to an ALJ than a doctor's narrative RFC assessment, are nonetheless medical evidence which cannot just be ignored. True, in some cases, an ALJ may rely on a doctor's narrative RFC, rather than the checkboxes, where that narrative adequately encapsulates and translates those worksheet observations.").

Under Haga and Frantz, the ALJ has a duty to explain why he adopted some of Dr. Simon's limitations while rejecting others. When an ALJ relies solely on a doctor's Section III narrative, this Court must analyze whether the Section III narrative "adequately encapsulates" the moderate limitations in Section I of the doctor's opinion. See Carver, 600 F. App'x at 619. In other words, the Court must determine whether the ALJ adequately accounted for the limitations noted by Dr. Simon in the RFC assessment. If not, the Court must determine whether the ALJ adequately explained why he rejected the missing limitations.

In Section I of her May 5, 2015 MRFCA, Dr. Simon found that Mr. Vienna had the following moderate limitations:

Understanding and Memory

AR 104-05.

In Section III of the MRFCA (under the heading "Rating") Dr. Simon found that:

AR 105.

The ALJ discussed Dr. Simon's opinion12 in a single paragraph of his RFC analysis:

AR 22. The ALJ found that Mr. Vienna had a mental RFC which limited him "to performing simple, routine tasks and only occasionally responding appropriately to the public. The claimant's time off task can be accommodated by normal breaks." AR 16-17.

The ALJ essentially adopted Dr. Simon's Section III finding that Mr. Vienna was limited to unskilled work by limiting him to "simple, routine tasks." The ALJ noted that there was a conflict between Dr. Simon's Section I and Section III findings in relation to social interaction limitations and adopted Dr. Simon's Section I finding of a moderate limitation in the "ability to interact appropriately with the general public" by limiting Mr. Vienna to "only occasionally responding appropriately to the public." AR 17, 104. The ALJ offered no other reasons for giving Dr. Simon's opinion "partial weight," and noted no other conflicts between Dr. Simon's Section I and Section III findings.

The Commissioner argues that "the ALJ fully accounted for all of Dr. Simon's mental limitations in the RFC by limiting [Mr. Vienna] to simple, routine work with limited interaction with the public." Doc. 19 at 16. Alternatively, the Commissioner argues that the ALJ found Dr. Simon's opinion "internally inconsistent" and only gave it partial weight, which excused the ALJ from explaining why he adopted some portions of Dr. Simon's opinion but not others.13 See id. This is not sufficient. As explained above, the reason the ALJ gave for finding Dr. Simon's opinion internally inconsistent related only to Dr. Simon's finding that Mr. Vienna had moderate limitations in social functioning, which the ALJ accounted for in the RFC. The ALJ otherwise adopted Dr. Simon's Section III opinion but failed to explain why he rejected other aspects of Dr. Simon's Section I findings that also were inconsistent with her Section III narrative.

The ALJ did not address at least two moderate mental limitations in Section I of Dr. Simon's opinion.14 In Section I, Dr. Simon found that Mr. Vienna had moderate limitations in his "ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances" and in his "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 and length of rest periods." AR 104. Dr. Simon's Section III findings do not account for these two moderate limitations. In Section III, without any narrative explanation about these moderate limitations, Dr. Simon found that Mr. Vienna could engage in "simple, repetitive, routine tasks" and perform unskilled work. AR 105. The ability to "maintain regular attendance and be punctual within customary tolerances" and the 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 and length of rest periods" are work-related mental abilities that are "critical for performing unskilled work," and the ALJ must adequately address them in the RFC.15 See POMS 25020.010(B)(3)(e), (i). Because Dr. Simon's Section III narrative does not "adequately encapsulate" her Section I findings of a moderate limitation in these critical areas, and because the ALJ failed to explain why he rejected these limitations, remand is required. See Carver, 600 F. App'x at 619.

The Commissioner argues that an ALJ does not "need to expressly incorporate all of the limitations from Section I" into the RFC, and that "it is sufficient if the Court can conclude the ALJ accounted for the Section I limitations" in the RFC. Doc. 19 at 14.16 The Commissioner cites Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015) (as quoted in Smith v. Colvin, 821 F.3d 1264 (10th Cir. 2016)), for the proposition that an ALJ "can account for moderate limitations by limiting the claimant to particular kinds of work activity." Id. Vigil, however, is distinguishable. In Vigil, the Tenth Circuit held that the ALJ adequately accounted for the claimant's moderate limitations in concentration, persistence and pace by "limiting him to unskilled work activity." 805 F.3d at 1204. The moderate limitations at issue in Vigil were limitations in the claimant's ability to "perform complex tasks." Id. at 1203-04. The ALJ in Vigil noted that the claimant retained the capacity to "perform at least simple tasks." Id. at 1204. Because unskilled work only requires the ability to understand, remember, and carry out simple instructions and make simple work-related decisions, the Court in Vigil held that the RFC limiting the claimant to unskilled work adequately addressed the claimant's limitation in his ability to perform complex tasks. Id. The court in Vigil was careful to point out, however, that "[t]here may be cases in which an ALJ's limitation to unskilled work does not adequately address a claimant's mental limitations." Id. (citing Chapo, 682 F.3d 1285, 1290 n.3). Thus, Vigil does not stand for the broad proposition that a limitation to unskilled work adequately addresses all moderate limitations in concentration, persistence and pace.

The Tenth Circuit has held that moderate limitations in concentration, persistence and pace may be accounted for in an RFC that restricts a claimant to performing simple tasks or unskilled work. See Lee v. Colvin, 631 F. App'x 538, 541-42 (10th Cir. 2015) (unpublished). But this is not always the case. "A limitation to `simple work' or `unskilled jobs' is generally insufficient to address a claimant's mental impairments." Groberg v. Astrue, 505 F. App'x 763, 770 (10th Cir. 2012) (unpublished) (citing Chapo, 682 F.3d at 1290 n.3 (a restriction to "simple work" is a vague catch-all term which is insufficient to adequately account for mental limitations)). The Commissioner argues that "moderate" could mean "anything between a full ability to perform an activity and an inability to usefully perform the activity." Doc. 19 at 14-15. The Court is not persuaded. "[A] moderate impairment is not the same as no impairment at all." Haga, 482 F.3d at 1208. Thus, "moderate limitations must be accounted for in the RFC finding." Jaramillo v. Colvin, 576 F. App'x 870, 876 (10th Cir. 2014) (unpublished).

In this case, unlike Vigil, the claimant's moderate mental limitations are not adequately addressed by an RFC limiting him to unskilled work, or by any of the limitations the ALJ included in his RFC. Dr. Simon assessed Mr. Vienna with moderate limitations in his ability to "maintain regular attendance, and be punctual within customary tolerances," and in his "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 and length of rest periods." These are mental abilities needed for any job. POMS DI 25020.010(B)(2)(a). These mental abilities are also "critical for performing unskilled work." POMS DI 25020.010(B)(3)(e), (i). These requirements "are usually strict." Id. Because these abilities are a general requirement for all jobs, the ALJ must address these limitations in formulating Mr. Vienna's RFC. See Bowers v. Astrue, 271 F. App'x 731, 733-34 (10th Cir. 2008) (unpublished) (noting that a moderate limitation in another ability required for all jobs—the ability to respond appropriately to changes in a routine work setting—could decrease the ability to perform simple or unskilled work because it is a general work requirement). Thus, unlike Vigil, which discussed a limitation in the ability to do complex tasks—a mental ability not required to perform unskilled work—the moderate limitations at issue in this case are critical to the performance of unskilled work. The ALJ therefore erred by not incorporating these limitations into Mr. Vienna's RFC or explaining his reasons for rejecting them.

VI. Conclusion

The ALJ erred in failing to incorporate or to explain why he rejected at least two moderate limitations assessed by Dr. Sheri Simon into Mr. Vienna's RFC. The ALJ failed to either incorporate or explain why he rejected the moderate limitation in Mr. Vienna's ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, and the moderate limitation in his 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 and length of rest periods. The Court remands so that the ALJ can remedy these errors.

IT IS THEREFORE ORDERED that Plaintiff's Motion to Reverse and Remand for a Rehearing (Doc. 15) is GRANTED.

IT IS FURTHER ORDERED that the Commissioner's final decision is REVERSED, and this case is REMANDED for further proceedings in accordance with this opinion.