MEMORANDUM OPINION AND ORDER

JERRY H. RITTER, Magistrate Judge.

This matter comes before the Court on Plaintiff Joshua Conrad Staff's Motion to Reverse and Remand to Agency for Rehearing with Supporting Memorandum, [Doc. 21], filed February 28, 2018. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to the undersigned to conduct dispositive proceedings in this matter, including the entry of final judgment. [Docs. 5, 8, 12]. Having studied the parties' positions, the relevant law, and the relevant portions of the Administrative Record ("AR"), the Court grants Mr. Staff's Motion for the reasons set forth below.

I) INTRODUCTION

This Court's institutional role is to ensure that the Commissioner's decision to deny Social Security benefits is supported by the law and substantial evidence. In this case, the Commissioner failed to meet both standards when she discounted the medical opinion of consultative examiner Roger Felix, M.D., because she elevated non-examining source opinions over his and gave illegitimate reasons for rejecting his functional limitations. As such, the Court has no choice but to remand Mr. Staff's case for additional proceedings.

II) BACKGROUND

Mr. Staff filed an application with the Social Security Administration for supplemental security income benefits under Title XVI of the Social Security Act on September 20, 2013. AR at 185-190. He alleged a disability onset date of August 6, 2013 due to "PTSD, Degenerative Disc Disease, Carpal Tunnel, High Blood Pressure, Anxiety, Insomnia, Acid Reflux [and] lypomas." AR at 185, 211. The Administration denied Mr. Staff's claim initially and upon reconsideration, and he requested a de novo hearing before an administrative law judge ("ALJ"). AR at 85-112.

ALJ Lillian Richter held an evidentiary hearing on February 4, 2016. AR at 33-84. On August 10, 2016, the ALJ issued an unfavorable decision, finding that Mr. Staff has not been under a disability from his alleged onset date through the date of her decision. AR at 8-32. In response, Mr. Staff filed a "Request for Review of Hearing Decision/Order" on September 16, 2016. AR at 174-177. After reviewing his case, the Appeals Council denied Mr. Staff's request for review on June 7, 2017. AR at 1-5. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

A claimant seeking disability benefits must establish that 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4).1

At Step One of the sequential evaluation process, the ALJ found that Mr. Staff has not engaged in substantial gainful activity since his alleged onset date. AR at 13. At Step Two, she determined that Mr. Staff has the severe impairments of "large right knee joint effusion and bipartite patella; degenerative disc disease of the cervical spine; carpal tunnel syndrome post surgery right hand; posttraumatic stress disorder; and depressive disorder[.]" AR at 13. At Step Three, the ALJ concluded that Mr. Staff's impairments, individually and in combination, do not meet or medically equal the regulatory "listings." AR at 14-16. Mr. Staff does not challenge these findings on appeal.

When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity ("RFC"). 20 C.F.R. § 416.920(e). "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined that Mr. Staff retains the RFC to:

AR at 16.

Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational Expert, the ALJ determined that Mr. Staff is unable to perform his past relevant work as a grocery store cashier, retail cashier, short-order cook, fast food worker, or stocker. AR at 24. However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Mr. Staff can perform despite his limitations. AR at 25. Specifically, the ALJ determined that Mr. Staff retains the functional capacity to work as a hand cleaner or laundry folder, despite his impairments. AR at 25. Accordingly, the ALJ determined that Mr. Staff is not disabled as defined in the Social Security Act, and denied benefits. AR at 26.

III) LEGAL STANDARDS

This Court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).

IV) ANALYSIS

Mr. Staff argues that "[t]he ALJ erred by failing to evaluate properly the (RFC)." [Doc. 21, p. 5]. Specifically, he argues that the ALJ failed to properly evaluate the opinions of the non-examining state agency physicians, the consultative examiners, Drs. Flynn and Felix, and failed to properly evaluate his non-severe impairments when formulating the RFC. [Id. at 5-15]. Finally, Mr. Staff argues that the ALJ erred by failing to resolve a conflict between the Vocational Expert testimony and the Dictionary of Occupational Titles. [Id. at 15-16]. Because the Court agrees that the ALJ erred when weighing Dr. Felix's opinion, it will not address Mr. Staff's other 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).

Under law, "[i]t is the ALJ's duty to give consideration to all the medical opinions in the record. . . . [Sh]e must also discuss the weight [s]he assigns to such opinions." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). The question in this case is whether the ALJ's weighing of Dr. Felix's opinion conformed with the legal standards applicable to "examining medical source opinions." See Ringgold v. Colvin, 644 F. App'x 841, 843 (10th Cir. 2016) (unpublished) (citing Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012); 20 C.F.R. §§ 404.1527(c)(1); 416.927(c)(1)). Such an 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 regulations and the ALJ must provide specific, legitimate reasons for rejecting it." Id. (emphasis added).

Kellams v. Berryhill, 696 F. App'x 909, 917 (10th Cir. 2017) (citing Goatcher v. U.S. Dep't of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995); 20 C.F.R. §§ 404.1527(c), 416.927(c)). For the reasons that follow, the Court is not convinced the ALJ correctly applied the law or that her reasons for discounting the weight she afforded to Dr. Felix's opinion are supported by substantial evidence.

First, the Court is not convinced that the ALJ's reasons were a proper application of the law. Here, the ALJ acknowledged that Dr. Felix is an acceptable medical source who examined Mr. Staff. As was recently reiterated by the Tenth Circuit, "an examining medical-source opinion is, . . . presumptively entitled to more weight than a doctor's opinion derived from a review of the medical record." Kellams v. Berryhill, 696 F. App'x 909, 917 (10th Cir. 2017) (quoting Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012)). Yet, in this case, the ALJ gave "significant weight" to the state agency medical examiners and consultants who merely examined Mr. Staff's medical records, while giving only "some weight" to the two doctors who examined Mr. Staff in person. While the Court finds little fault with the ALJ's assessment of the psychological consultative examiner, Dr. Flynn, the same cannot be said of her reasons for discounting Dr. Felix's opinion.

In giving only "some weight" to Dr. Felix's opinion, the ALJ reasoned that "[w]hile he is an acceptable medical source under the regulations and he has (sic) the opportunity to examine the claimant, many of his conclusions appear to be based solely on the claimant's subjective complaints." AR at 23. However, having examined Dr. Felix's report, the Court disagrees that his conclusions are based on Mr. Staff's subjective complaints. To the contrary, in his report Dr. Felix states that "[b]ased on his exam, [Mr. Staff] would be expected to have difficulty with lifting/pulling/pushing/carrying heavy loads with the right upper extremity, noting that he is left handed." AR at 294 (emphasis added). Dr. Felix went on to state that "[b]ased on his exam, he might be expected to have difficulty with lifting heavy loads frequently[,] . . . [b]ased on his exam, he might be expected to have difficulty with jobs requiring a large amount of squatting and stooping . . . [and] [b]ased on his exam, he would be expected to have difficulty with frequent repetitive movement of the right wrist, which might exacerbate his carpal tunnel syndrome." AR at 294 (emphasis added). Thus, Dr. Felix did not rely solely on Mr. Staff's subjective complaints but, rather, his own examination findings. Therefore, the ALJ's reason for assigning less weight to his opinion is not supported by substantial evidence.

The ALJ continued, "[w]hile I did not find his opinion very persuasive, I have relied on his findings on examination. Where the residual functional capacity differs from the opinion offered by Dr. Felix, the differences weigh in favor of the claimant." AR at 23. The ALJ's first statement implies that she relied on Dr. Felix's examination findings. But, as demonstrated above, that simply isn't true. Instead, the ALJ discounted the weight she assigned to Dr. Felix's opinion because she believed his findings to be supported only by Mr. Staff's subjective complaints. AR at 23. The ALJ's second statement also proves to be false. Whereas Dr. Felix opined that Mr. Staff would have difficulty with frequent lifting with his right upper extremity, stooping, and repetitive movement of his right wrist, AR at 294, the ALJ's RFC finding states that he can frequently stoop and frequently handle and finger with the right nondominant upper extremity. AR at 16. In other words, the ALJ did not temper Mr. Staff's RFC in his favor, but differed significantly from Dr. Felix's opinion. Thus, the ALJ's weighing of Dr. Felix's opinion is not supported by substantial evidence.

The Commissioner argues that the ALJ's error was harmless, positing that the ALJ could have found Mr. Staff capable of constant (rather than frequent) stooping. [Doc. 23, pp. 12-13 (relying on Keyes-Zachary for the proposition that failure to properly weigh an opinion is harmless where it is consistent with the RFC)]. The Court disagrees that the ALJ's error was harmless. Dr. Felix opined that "[b]ased on his exam, [Mr. Staff] might be expected to have difficulty with jobs requiring a large amount of squatting and stooping." AR at 294 (emphasis added). This is not consistent with a RFC requiring "frequent" stooping. "Some stooping is required to do any almost kind of work." POMS DI 25020.005. While "[o]nly occasional stooping and no crouching is required to perform most sedentary and light occupations[,]" id., when used in a RFC, "occasional" "means that the activity or condition occurs at least once up to one-third of an 8-hour workday" whereas use of the term "frequently" "means that the activity or condition occurs one-third to two-thirds of an 8-hour workday[,]" and "constantly" "means that the activity or condition occurs two-thirds or more of an eight-hour day." POMS DI 25001.001. The ALJ certainly could not have assigned Mr. Staff an RFC that permits constant stooping without completely rejecting Dr. Felix's opinion, and frequent stooping (up to two-thirds of the workday) is not consistent with Dr. Felix's opinion that Mr. Staff is precluded from jobs requiring a "large amount" of stooping. In other words, the ALJ's error was not harmless.

The ALJ's error in weighing Dr. Felix's opinion renders the rest of her analysis unreliable. For example, the two jobs identified as within Mr. Staff's RFC in this case require frequent to constant bilateral handling. See DICOT 709.687-010 (hand cleaner), 1991 WL 679134; DICOT 361.587-010 (laundry folder), 1991 WL 672979. Yet, even the ALJ's own RFC limits Mr. Staff to frequent bilateral handling. AR at 16. And, if Dr. Felix's opinion is granted greater weight, Mr. Staff may be found to be even more limited. This is not to say that there are not jobs in the national economy that Mr. Staff can perform; however, without a proper RFC formulation by the ALJ, it is impossible to know if Mr. Staff is able to perform the two jobs identified by the ALJ here. See Carr v. Comm'r, SSA, 734 F. App'x 606, 611 (10th Cir. 2018) ("Testimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the Commissioner's decision.").

V) CONCLUSION

The ALJ elevated non-examining medical source opinions above that of an acceptable medical source that examined Mr. Staff — Dr. Felix. While this is acceptable in some cases, it was not here, where the ALJ failed to properly apply the law, and where her reasons for giving less weight to Dr. Felix's opinion are unsupported by substantial evidence.

Wherefore, IT IS THEREFORE ORDERED that plaintiff Joshua Conrad Staff's Motion to Reverse and Remand [Doc. 21] is GRANTED. The decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion.