UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSEPHINE E. BENAVIDEZ, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee. No. 15-1260 (D.C. No. 1:14- CV-01455-MEH) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and PHILLIPS , Circuit Judges.

________________ _________________ Josephine E. Benavidez appeals from the district court’s decision affirming the Commissioner’s denial of her applications for disability benefits and supplemental security income. On appeal, she ra ises only one question: whether the administrative law judge (ALJ ) erred in assessing the me dical opinions regarding her mental impairments. Exerci sing jurisdiction under 42 U. S.C. § 405(g) and 28 U.S.C. § 1291, we reverse and rema nd for further proceedings.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### May 26, 2016
Elisabeth A. Shumaker Clerk of Court2 In addition to certain phys ical impairments, the ALJ found that Ms. Benavidez suffers from mild cognitive im pairment, depression, anxiety, and status post cerebral aneurysm. There were no treating-physicia n opinions regarding these impairments. The three medical opinions available to the ALJ were from c onsulting psychologist Richard Madsen, Ph.D.; non-examining state agency reviewer, Arthur Lewy, Ph.D.; and non-examining hearing w itness Dr. Ellen Rosenfeld. After examining Ms. Benavid ez, Dr. Madsen opined: She is depressed and [has] difficulty maintaining focus and concentration, energy, and motivational levels. Co gnitive functioning appeared mildly impaired, most likely due to anxiet y. Her ability to do work-related activities is impaired because of thes e things. She will have difficulty maintaining a regular work schedule, focusing and concentrating on work, relating to peers, co-workers, supervisors and the general public. Admin. R., Vol. III at 407. Dr. Lewy reviewed the re cords and opined that Ms. Benavidez was moderately limited in the ability to unders tand and remember detailed in structions, clarifying that “[she] is able to understand and re member 1–4 step instructions.” Id. , Vol. I at 113, 127. He opined that she was not significan tly limited in perform ing activities within a schedule, maintaining regular attendanc e, and being punctual within customary tolerances. He assessed m oderate limitations on her ability to complete a normal workday and workweek without interrup tion from psychologically based symptoms, specifying, however, that “[sh e] is able to complete tasks at a normal pace.” Id. at 114, 128. And he assessed moderate limitations on her ability to interact appropriately with the genera l public, stating that “[she] is able to wo rk with the3 public on a cursory basis. Sh e is able to work with co -workers and supervisors.” Id. at 114, 128. He notes that Dr. Madsen assessed more limitations but found his opinion unpersuasive. Dr. Rosenfeld reviewed the records and testified: With regards to understanding, rememb ering and carrying out, she certainly can handle simple, routine, as well as occasional detailed [sic]. She would not be able to handle complex inst ructions. She’s able to attend and concentrate . . . to complete tasks of a simple, routine and more detailed nature. Socially, she prob ably would do best in a setting without sustained general public contact though she certai nly can be in proximity with them. She can be in proximity with coworkers, probably would do best without joint or shared tasks and can handle supervisory contact. Id. at 92. She assessed no limits with regard to supervisory contact and indicated that occasional contact with the public would be up to 1/3 of a day. After summarizing the opinions, the ALJ a fforded “great weight” to all three. Id. at 62. She found that Dr . Madsen’s and Dr. Lewy’s opinions were supported by the medical evidence, and that Dr. Rosenfeld’s testimony was consistent with their opinions. These professionals opine that the cl aimant remains capable of simple, routine, and repetitive tasks and some detailed tasks. She is capable of interacting with supervisors, but she has some limitations in interaction with the general public. She is capabl e of working in proximity to others, but not on the same tasks. Id. In assessing residual functional capacity (RFC), the ALJ found that Ms. Benavidez could perform sedentary work consisting of “simple, routine, and repetitive tasks and occasional detailed tasks (up to 1/3 of the day). [She] is capable of interaction with the public for up to 1/3 of the day a nd unlimited interaction with4 supervisors and co-workers. [She] is cap able of working in close proximity to co-workers, but not on the same task.” Id. at 59. “We review the Commissioner’s decisi on to determine whether the factual findings are supported by substa ntial evidence in the record and wh ether the correct legal standards were applied.” Wilson v. Astrue , 602 F.3d 1136, 1140 (10th Cir. 2010). Ms. Benavidez complain s that the ALJ purportedly ga ve “great weight” to all three opinions. But then, in formulating the RFC, the ALJ adopted wholesale the restrictions assessed by Dr. Rosenfeld a nd did not adopt restri ctions assessed by Dr. Madsen. 1 And she did not explain why she did not incorporate those re strictions. An examining physician's opinion is presumptively entitled to more weight than an opinion derived from a review of the records. Chapo v. Astrue , 682 F.3d 1285, 1291 (10th Ci r. 2012). “An [examining phys ician] opinion . . . may be dismissed or discounted, of c ourse, but that must be base d 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. (internal quotation marks omitted). Further, an ALJ cannot, without explana tion, adopt some re strictions assessed by a physician and reject others th at the physician also assessed. See Haga v. Astrue , 482 F.3d 1205, 1208 (10th Cir. 2007); see also Frantz v. Astrue , 509 F.3d 1299, 1302-03 (10th Cir. 2007) (relying on Haga ); Winfrey v. Chater , 92 F.3d 1017, 1024

1 Ms. Benavidez also comp lains that the ALJ did not adopt restrictions assessed by Dr. Lewy. We read Dr. Lewy ’s opinion as substantially similar to Dr. Rosenfeld’s opinion, and thus do not consider the ALJ’s failure to assess restrictions in exact ly the terms used by Dr. Lewy to be reversible error.5 (10th Cir. 1996) (stating th at the RFC did not accurate ly reflect a claimant’s impairments when the ALJ found a medica l opinion entirely credible, but did not include all assessed limitati ons). “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” S.S.R. 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Here, the ALJ noted Dr. Ma dsen’s opinions that Ms. Benavidez would have difficulties, and she purportedly afforded Dr. Madsen’s opinion great weight. But then she ignored his assessments that Ms. Benavidez would have difficulty maintaining a regular work schedule, focusing and concentrating on work, and relating to supervisors, in stead adopting Dr. Lewy’s a nd Dr. Rosenfeld’s opinions. And she did not explain why she adopted Dr. Lewy’s and Dr. Rosenfeld’s opinions instead of Dr. Madsen’s assessments. Accordingly, the ALJ erred in handling Dr. Madsen’s opinion. In light of the record, we are not c onvinced the errors are harmless. The vocational expert testified that more than approximately one absence per month on a consistent and unsche duled basis would preclude empl oyment, and that an individual who is off task fifteen percen t of the time would not be ab le to maintain employment. The Commissioner’s arguments in s upport of affirmance—including that Dr. Rosenfeld’s and Dr. Lewy’s opinions were more detail ed than Dr. Madsen’s and what a “reasonable reading” of the AL J’s decision would be—amount to post hoc justifications, which we cannot entertain. See Frantz , 509 F.3d at 1302; Haga , 482 F.3d at 1207-08.6 The district court’s deci sion is reversed, and the action is remanded to the district court with instruc tions to remand to the Social Security Administration for further proceedings.

Entered for the Court
Gregory A. Phillips Circuit Judge