UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GREGORY A. RAEL, Plaintiff - Appellant,

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

________________ _________________ 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 singl e issue on appeal: whether the administrative la w judge (ALJ) ignored or fa iled to discuss the opinion of his treating physician, Dr. Elaine Rusin, that Rael ca n 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, 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

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Elisabeth A. Shumaker Clerk of Court2 activities and can only occasi onally reach. Because substantial evidence supports the agency’s factual findings and it applied th e correct legal standards, we affirm.
See Lax v. Astrue , 489 F.3d 1080, 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 fo r 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 lumb ar region, but his treatment notes don’t indicate that Rael had any postu ral limitations or reaching lim itations. In his last two examinations, in January and May 2010, L illy’s examination of Rael’s posterior lumbar spine found no tenderness or musc le spasms and normal range of motion, though with pain. Lilly placed no functio nal limitations on R ael and recommended spine strengthening and fl exibility exercises. Rael was next examined in June 20 11 by consultative examiner Thurman Hodge. Hodge found that Ra el had normal range of moti on in his lumbar spine and his upper extremities were “[n]ormal and e qual bilaterally with regards to motor, sensation, reflexes and pul ses.” Aplt. App. at 199. Hodge found that Rael’s shoulder, elbows, and forearms were “[n]ontender,” with “ no abnormality of range of motion.” Id . Hodge found no cervical or th oracic spine impairments or upper

1 We limit our summary of the medical ev idence to that which is relevant to Rael’s challenge to the ALJ’s assessment of Rael’s postura l and reaching limitations.3 extremity impairments, placed no restrictions on Rael’s abi lity to reach, found that all of Rael’s muscle groups were “5/5 strength bilaterally,” and found that Rael could “bend repeatedly.” Id . at 200. 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 s it for six hours, stand and wa lk for four hours, bend and squat occasionally, lift 30 pounds, and craw l and do repetitive mo tions throughout the day. Id. at 201. Treating physician Rusin examined Rael between November 2011 and December 2012. Her November 2011 notes state Rael co mplained 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 li mitations. Rusin’s August 2012 notes again state Rael walked stiffly with a waddling gait, but do not indicate any range of motion testing. After th e 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 c ould stand for 30 minutes at a time; was not limited in his ability to us e his upper extremi ties; could lift 20 pounds; could only rarely stoop, crawl, or kneel, seldom squa t, and only occasionally reach; and needed to lie down for 30 minutes thr ee to four times a day. Id . at 293-94. Rusin said Rael was not limited in how long he could sit, but also said he could only sit one to two4 hours at a time. Rusin’s September, Oc tober, 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 limitati ons. 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 da y, 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 di d have postural limita tions, finding he could only occasionally climb, stoop, kneel, crouc h, 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 se vere impairment, but that he retained the residual functiona l capacity (RFC) to perform light work, 2 with the non-exertional limitation of only occas ionally performing postural activities (balancing, stooping, climbing, kneeling, cr ouching). The ALJ determined, based on

2 The regulations define light work as follows: Light work involves lifting no more th an 20 pounds at a time with frequent lifting or carrying of object s weighing up to 10 po unds. 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 pe rforming a full or wide range of light work, [the claimant] must have the ab ility to do substantially a ll of these activities. 20 C.F.R. §§ 404.1567(b), 416.967(b).5 the record, testimony from a vocational expert , and the RFC determination, that Rael could return to his past work as a bank te ller. The ALJ also de termined that Rael could do other sedentary jobs that exis t in significant numbe rs in the national
economy. See Lax , 489 F.3d at 1084 (describing th e five-step evaluation process used to assess social secur ity claims). Thus, the ALJ found Rael wasn’t disabled. The Appeals Council denied review, and th e district court (a magistrate judge presiding by consent of the parties) affirmed the denial of benefits. DISCUSSION In this appeal fro m that denial, Rael doesn’t dis pute the ALJ’s finding that he has the exertional ability to perform li ght 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 opini ons of both Hodge and Kete lhohn that Rael could occasionally perform postural activities and had no reachi ng limitation. Only Rusin opined that Rael could rarely perform postural limitations and could only occasionally reach. Neverthe less, Rael argues on appeal that the ALJ failed to explain why he discounted Rusin’s postura l and reaching limitations, violating the applicable ruling requiring th at “[i]f the RFC as sessment 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 (July 2, 1996).6 We recently reviewed the considerati ons an ALJ must give to a treating physician’s opinion in Allman v. Colvin , 813 F.3d 1326, 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 re asons must be suffic iently specific to make clear to any s ubsequent reviewers the weight the [ALJ] gave to the treating source’s medical opinion and th e reason for that weight.” Id . (ellipses, citation and internal quotation marks omitted). Furt her, if the ALJ decides the treating physician’s opinion is “w ell supported by medically acceptable clinical and laboratory diagnostic t echniques and is consistent with the other substantial evidence in the record . . . the ALJ must give the opini on controlling weight.” Id . at 1331 (citation and internal quotation marks omitted ). “But if the AL J 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.” Id . (internal quotation 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 exte nt of the treatment relationship, including the treatment pr ovided and the ki nd of examination or testing performed; (3) the degree to which the physician’s opinion is supported by relevant evidence; (4) consistency betw een the opinion and the record as a whole; (5) whether or not the physicia n 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 suppor t or contradict the opinion. Id . at 1331-32 (internal quot ation marks omitted).7 Rael cites Winfrey v. Chater , 92 F.3d 1017 (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 impa irments when the ALJ found a medical opinion “entirely cred ible,” but didn’t include all its assessed limitations. Id . at 1024. Rael sugg ests that as in Winfrey , the ALJ here adopted all of Rusin’s opinion, but then failed to include her non-exe rtional limitations. Rael points to one sentence in the ALJ’s decisi on as support for this compar ison: “‘[t]he undersigned opts to give some weight to [Rusin’s] firs t assessment, and adop t 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] findi ngs,” necessar ily accepted all of Rusin’s findings. Our review of the ALJ’s discussion in its en tirety 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 repor ted he could perform light exertional work; (3) Rusin made her findings using conclusory check marks providing no explanation of the8 evidence she relied upon; (4) Rusin’s tr eatment 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 findi ngs were inconsistent with the overall medical record because she opined Rael had sp inal 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 agr ee with the district court that the ALJ only adopted Rusin’s findings th at Rael could do li ght exertional work because those findings were consistent w ith the findings of Hodge and Ketelhohn, whose opinions the ALJ gave great weight. Rael also contends the ALJ acted in consistently with our direction in Haga v.
Astrue , 482 F.3d 1205, 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 nondisabil ity.” Rael also cites Chapo v.
Astrue , 682 F.3d 1285, 1291-92 (10th Cir. 2012), in which we similarly held the ALJ erred by failing to explain why he accepte d 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 , 482 F.3d 1205, 1207-08 (holding the “court may not create or adopt post-hoc rationalizations to support the ALJ’s decision th at are not apparent from th e ALJ’s decision itself”).9 opinion as credible, but di scounted without explanation another portion, which was not contradicted by any other medical sour ce. 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 postura l activities and had no reach ing 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