FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          February 3, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
GREGORY A. RAEL,

      Plaintiff - Appellant,

v.                                                          No. 16-1212
                                                  (D.C. No. 1:14-CV-01384-KMT)
NANCY A. BERRYHILL, Acting                                   (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

      Gregory Rael appeals the district court’s judgment affirming the

Commissioner’s denial of his application for Social Security disability insurance

benefits and supplemental security income. Rael raises a single issue on appeal:

whether the administrative law judge (ALJ) ignored or failed to discuss the opinion

of his treating physician, Dr. Elaine Rusin, that Rael can only rarely perform postural

      
       Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill is substituted for
Carolyn Colvin as the Acting Commissioner of the Social Security Administration.
      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
activities and can only occasionally reach. Because substantial evidence supports the

agency’s factual findings and it applied the correct legal standards, we affirm.

See Lax v. Astrue, 

, 1084 (10th Cir. 2007) (describing our review of the

Commissioner’s disability determinations).

                                   BACKGROUND

      Rael applied for benefits alleging he became unable to work in October 2010

due to chronic back pain.1 Rael received treatment for his lower back pain from

physician R. Lindsey Lilly from March 2007 to May 2010. Lilly’s treatment notes

indicate Rael had pain in his lower lumbar region, but his treatment notes don’t

indicate that Rael had any postural limitations or reaching limitations. In his last two

examinations, in January and May 2010, Lilly’s examination of Rael’s posterior

lumbar spine found no tenderness or muscle spasms and normal range of motion,

though with pain. Lilly placed no functional limitations on Rael and recommended

spine strengthening and flexibility exercises.

      Rael was next examined in June 2011 by consultative examiner Thurman

Hodge. Hodge found that Rael had normal range of motion in his lumbar spine and

his upper extremities were “[n]ormal and equal bilaterally with regards to motor,

sensation, reflexes and pulses.” Aplt. App. at 199. Hodge found that Rael’s

shoulder, elbows, and forearms were “[n]ontender,” with “no abnormality of range of

motion.” 

no cervical or thoracic spine impairments or upper


      1
        We limit our summary of the medical evidence to that which is relevant to
Rael’s challenge to the ALJ’s assessment of Rael’s postural and reaching limitations.
                                           2
extremity impairments, placed no restrictions on Rael’s ability to reach, found that all

of Rael’s muscle groups were “5/5 strength bilaterally,” and found that Rael could

“bend repeatedly.” 

Hodge noted that Rael refused to attempt to squat due

to back pain, but stated that Rael had not given a full effort. He opined that in an

eight-hour day, Rael could sit for six hours, stand and walk for four hours, bend and

squat occasionally, lift 30 pounds, and crawl and do repetitive motions throughout

the day. 

      Treating physician Rusin examined Rael between November 2011 and

December 2012. Her November 2011 notes state Rael complained of lower back

pain and had a decreased range of motion in his lower spine and a waddling gait, but

had normal range of motion in his head and neck. Rusin’s December 2011 notes

state Rael had decreased range of motion in his lower back, a waddling gait, and kept

his back stiff, but documented no other limitations. Rusin’s August 2012 notes again

state Rael walked stiffly with a waddling gait, but do not indicate any range of

motion testing. After the August 2012 exam, Rusin completed a “Med-9 form”

questionnaire stating Rael had spinal stenosis at the L4-5 level and a herniated disc,

and had been disabled since 2008. The same day Rusin completed another form

stating that in an eight-hour day, Rael could stand for 30 minutes at a time; was not

limited in his ability to use his upper extremities; could lift 20 pounds; could only

rarely stoop, crawl, or kneel, seldom squat, and only occasionally reach; and needed

to lie down for 30 minutes three to four times a day. 

Rusin said Rael

was not limited in how long he could sit, but also said he could only sit one to two

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hours at a time. Rusin’s September, October, and November 2012 notes state Rael

continued to have lower back pain and a waddling gait, but do not indicate any range

of motion testing or any other limitations. Rusin did not place any functional

limitations on Rael during any treatment visits.

       A non-examining state agency physician, Alan Ketelhohn, reviewed all of

Rael’s medical evidence. Ketelhohn opined that Rael could work at the light

exertional level because in an eight-hour day, Rael could occasionally lift 20 pounds,

could stand, walk and sit six hours with normal breaks, and had an unlimited ability

to push and pull. He opined that Rael did have postural limitations, finding he could

only occasionally climb, stoop, kneel, crouch, and crawl. He found no reaching

limitation.

       After a hearing, the ALJ concluded Rael was not disabled. The ALJ found that

Rael’s degenerative disc disease of the lumbar spine was a severe impairment, but

that he retained the residual functional capacity (RFC) to perform light work,2 with

the non-exertional limitation of only occasionally performing postural activities

(balancing, stooping, climbing, kneeling, crouching). The ALJ determined, based on

       2
           The regulations define light work as follows:

       Light work involves lifting no more than 20 pounds at a time with frequent
       lifting or carrying of objects weighing up to 10 pounds. Even though the
       weight lifted may be very little, a job is in this category when it requires a
       good deal of walking or standing, or when it involves sitting most of the
       time with some pushing and pulling of arm or leg controls. To be
       considered capable of performing a full or wide range of light work, [the
       claimant] must have the ability to do substantially all of these activities.

20 C.F.R. §§ 404.1567(b), 416.967(b).
                                             4
the record, testimony from a vocational expert, and the RFC determination, that Rael

could return to his past work as a bank teller. The ALJ also determined that Rael

could do other sedentary jobs that exist in significant numbers in the national

economy. See 

(describing the five-step evaluation process

used to assess social security claims). Thus, the ALJ found Rael wasn’t disabled.

The Appeals Council denied review, and the district court (a magistrate judge

presiding by consent of the parties) affirmed the denial of benefits.

                                    DISCUSSION

       In this appeal from that denial, Rael doesn’t dispute the ALJ’s finding that he

has the exertional ability to perform light work—a finding supported by medical

evidence from Hodge, Rusin, and Ketelhohn. Rather, he disputes only the ALJ’s

non-exertional findings that Rael could occasionally perform postural activities and

had no limitation on his ability to reach. As noted, these determinations are

consistent with the opinions of both Hodge and Ketelhohn that Rael could

occasionally perform postural activities and had no reaching limitation. Only Rusin

opined that Rael could rarely perform postural limitations and could only

occasionally reach. Nevertheless, Rael argues on appeal that the ALJ failed to

explain why he discounted Rusin’s postural and reaching limitations, violating the

applicable ruling requiring that “[i]f the RFC assessment conflicts with an opinion

from a medical source, the adjudicator must explain why the opinion was not

adopted.” SSR 96-8p, 

, at *7 (July 2, 1996).



                                           5
      We recently reviewed the considerations an ALJ must give to a treating

physician’s opinion in Allman v. Colvin, 

, 1332 (10th Cir. 2016).

There, we pointed out that an ALJ “must give good reasons for the weight assigned to

a treating physician’s opinion,” and “[t]he reasons must be sufficiently specific to

make clear to any subsequent reviewers the weight the [ALJ] gave to the treating

source’s medical opinion and the reason for that weight.” 

and

internal quotation marks omitted). Further, if the ALJ decides the treating

physician’s opinion is “well supported by medically acceptable clinical and

laboratory diagnostic techniques and is consistent with the other substantial evidence

in the record . . . the ALJ must give the opinion controlling weight.” 

(citation and internal quotation marks omitted). “But if the ALJ decides that the

treating physician’s opinion is not entitled to controlling weight, the ALJ must then

consider whether the opinion should be rejected altogether or assigned some lesser

weight.” 

marks omitted). In making this determination, the

ALJ may consider:

      (1) the length of the treatment relationship and the frequency of
      examination; (2) the nature and extent of the treatment relationship,
      including the treatment provided and the kind of examination or testing
      performed; (3) the degree to which the physician’s opinion is supported by
      relevant evidence; (4) consistency between the opinion and the record as a
      whole; (5) whether or not the physician is a specialist in the area upon
      which an opinion is rendered; and (6) other factors brought to the ALJ’s
      attention which tend to support or contradict the opinion.

-32 (internal quotation marks omitted).




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       Rael cites Winfrey v. Chater, 

(10th Cir. 1996), as support for his

argument that the ALJ failed to explain why he discounted Rusin’s opinion regarding

postural and reaching limitations. In Winfrey, we held that an ALJ’s RFC

determination didn’t accurately reflect a claimant’s impairments when the ALJ found

a medical opinion “entirely credible,” but didn’t include all its assessed limitations.

Rael suggests that as in Winfrey, the ALJ here adopted all of Rusin’s

opinion, but then failed to include her non-exertional limitations. Rael points to one

sentence in the ALJ’s decision as support for this comparison: “‘[t]he undersigned

opts to give some weight to [Rusin’s] first assessment, and adopt her findings, as it

does overall comport with those of Drs. Hodge and Ketelhohn, who found [Rael] can

work at the light exertional level.’” Aplt. Opening Br. at 16 (quoting Aplt. App. at

19).

       But Rael’s argument relies on the faulty assumption that the ALJ, by saying

she “adopt[ed] [Rusin’s] findings,” necessarily accepted all of Rusin’s findings. Our

review of the ALJ’s discussion in its entirety reveals that the ALJ adopted only

Rusin’s restrictions at the light exertional level and gave some weight, not controlling

weight, to the whole of her opinion. And the ALJ properly provided specific,

legitimate reasons for giving only some weight to Rusin’s opinion, namely:

(1) Rusin said Rael was totally disabled since 2008 yet Rusin had only treated him

since November 2011; (2) Rusin said Rael was totally disabled, but in the same

month she inconsistently reported he could perform light exertional work; (3) Rusin

made her findings using conclusory checkmarks providing no explanation of the

                                            7
evidence she relied upon; (4) Rusin’s treatment notes didn’t support her opinion

because they contained no evidence she ever examined Rael’s range of motion in his

upper and middle extremities, nor did she ever describe any motor, reflex, or sensory

deficits; and (5) Rusin’s findings were inconsistent with the overall medical record

because she opined Rael had spinal stenosis with a herniated disc when the imaging

did not support that finding.3

      The ALJ appropriately considered each of these factors in discounting Rusin’s

opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). And we agree with the district court

that the ALJ only adopted Rusin’s findings that Rael could do light exertional work

because those findings were consistent with the findings of Hodge and Ketelhohn,

whose opinions the ALJ gave great weight.

      Rael also contends the ALJ acted inconsistently with our direction in Haga v.

Astrue, 

, 1208 (10th Cir. 2007), in which we held “[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.” Rael also cites Chapo v.

Astrue, 

, 1291-92 (10th Cir. 2012), in which we similarly held the ALJ

erred by failing to explain why he accepted one portion of a treating physician’s


      3
        The Commissioner also notes that objective tests support the ALJ’s
determination that Rael could occasionally perform postural activities, including MRI
findings in December 2009 and February 2012 showing no impingement or
encroachment on his nerves or spinal cord. But the ALJ didn’t articulate this as a
reason for giving only some weight to Rusin’s opinion, and we agree with Rael that it
can’t be used to support the ALJ’s decision now. Haga v. Astrue, 

,
1207-08 (holding the “court may not create or adopt post-hoc rationalizations to
support the ALJ’s decision that are not apparent from the ALJ’s decision itself”).
                                           8
opinion as credible, but discounted without explanation another portion, which was

not contradicted by any other medical source. But Rael’s argument ignores a key

factor present in Haga and Chapo but not present here—i.e., Rusin’s non-exertional

findings were contradicted; Hodge and Ketelhohn both opined that Rael could

occasionally perform postural activities and had no reaching limitations. And here,

unlike in Haga and Chapo, the ALJ explained his rationale for applying varying

weights to different aspects of the treating physician’s opinion.

      Under these circumstances, we conclude substantial evidence supports the

ALJ’s decision and we discern no legal error. Thus we affirm the district court’s

judgment.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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