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 raises only one question: whether the 

administrative law judge (ALJ) erred in assessing the medical opinions regarding her 

mental impairments. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. 

§ 1291, we reverse and remand for further proceedings. 

 *

 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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

May 26, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

In addition to certain physical impairments, the ALJ found that Ms. Benavidez 

suffers from mild cognitive impairment, depression, anxiety, and status post cerebral 

aneurysm. There were no treating-physician opinions regarding these impairments. 

The three medical opinions available to the ALJ were from consulting psychologist 

Richard Madsen, Ph.D.; non-examining state agency reviewer, Arthur Lewy, Ph.D.; 

and non-examining hearing witness Dr. Ellen Rosenfeld. 

After examining Ms. Benavidez, Dr. Madsen opined: 

She is depressed and [has] difficulty maintaining focus and concentration, 

energy, and motivational levels. Cognitive functioning appeared mildly 

impaired, most likely due to anxiety. Her ability to do work-related 

activities is impaired because of these 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 records and opined that Ms. Benavidez was moderately 

limited in the ability to understand and remember detailed instructions, clarifying that 

“[she] is able to understand and remember 1–4 step instructions.” Id., Vol. I at 113, 

127. He opined that she was not significantly limited in performing activities within 

a schedule, maintaining regular attendance, and being punctual within customary 

tolerances. He assessed moderate limitations on her ability to complete a normal 

workday and workweek without interruption from psychologically based symptoms, 

specifying, however, that “[she] 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 general public, stating that “[she] is able to work with the 
3 

public on a cursory basis. She 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, remembering and carrying out, she certainly 

can handle simple, routine, as well as occasional detailed [sic]. She would 

not be able to handle complex instructions. She’s able to attend and 

concentrate . . . to complete tasks of a simple, routine and more detailed 

nature. Socially, she probably would do best in a setting without sustained 

general public contact though she certainly 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 afforded “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 claimant 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 capable 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 and unlimited interaction with 
4 

supervisors and co-workers. [She] is capable of working in close proximity to 

co-workers, but not on the same task.” Id. at 59. 

 “We review the Commissioner’s decision to determine whether the factual 

findings are supported by substantial evidence in the record and whether the correct 

legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 

2010). Ms. Benavidez complains that the ALJ purportedly gave “great weight” to all 

three opinions. But then, in formulating the RFC, the ALJ adopted wholesale the 

restrictions assessed by Dr. Rosenfeld and did not adopt restrictions assessed by 

Dr. Madsen.1

 And she did not explain why she did not incorporate those restrictions. 

 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 Cir. 2012). “An [examining physician] 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. (internal quotation marks omitted). 

Further, an ALJ cannot, without explanation, adopt some restrictions assessed 

by a physician and reject others that 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 complains 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 exactly the terms used by Dr. Lewy to be reversible error. 
5 

(10th Cir. 1996) (stating that the RFC did not accurately reflect a claimant’s 

impairments when the ALJ found a medical opinion entirely credible, but did not 

include all assessed limitations). “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. Madsen’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, instead adopting Dr. Lewy’s and 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 convinced the errors are harmless. The 

vocational expert testified that more than approximately one absence per month on a 

consistent and unscheduled basis would preclude employment, and that an individual 

who is off task fifteen percent of the time would not be able to maintain employment. 

The Commissioner’s arguments in support of affirmance—including that 

Dr. Rosenfeld’s and Dr. Lewy’s opinions were more detailed than Dr. Madsen’s and 

what a “reasonable reading” of the ALJ’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 decision is reversed, and the action is remanded to the 

district court with instructions to remand to the Social Security Administration for 

further proceedings. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge