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 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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

February 3, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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, 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 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.” Id. Hodge found 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. 
3 

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.” 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 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. Id. at 201. 

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. 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 two 
4 

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). 
5 

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 Lax, 489 F.3d at 1084 (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, 1996 WL 374184, at *7 (July 2, 1996). 
6 

We recently reviewed the considerations 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 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.” Id. (ellipses, citation 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.” Id. at 1331 

(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.” 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 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. 

Id. at 1331-32 (internal quotation 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 impairments when the ALJ found 

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

Id. at 1024. 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 
8 

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, 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 nondisability.” 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 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, 482 F.3d 1205, 

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”). 
9 

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