Chrismon v. Astrue , 531 F. App'x 893 ( 2013 )


Menu:
  •                                                               FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                        August 21, 2013
    Elisabeth A. Shumaker
    Clerk of Court
    ROBERT CHRISMON, II,
    Plaintiff-Appellant,
    v.                                                          No. 12-5184
    (D.C. No. 4:11-CV-00325-FHM)
    CAROLYN W. COLVIN, Acting                                   (N.D. Okla.)
    Commissioner of Social Security
    Administration,*
    Defendant-Appellee.
    ORDER AND JUDGMENT**
    Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.
    Plaintiff Robert Chrismon, II, appeals from a district court order, issued by the
    magistrate judge under 
    28 U.S.C. § 636
    (c), affirming the Commissioner’s decision to
    deny social security disability and supplemental security income benefits. We
    *
    In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
    Procedure, Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-
    appellee in this action.
    **
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant 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
    ordered 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 This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    independently review the Commissioner’s decision to determine whether it is free of
    legal error and supported by substantial evidence. Krauser v. Astrue, 
    638 F.3d 1324
    ,
    1326 (10th Cir. 2011). Although a number of objections advanced by Mr. Chrismon
    lack merit, we conclude this case must be remanded to the agency for reconsideration
    of a critical medical source opinion that was inadequately addressed and discounted
    on a basis not supported by the administrative record.
    I. AGENCY DECISION
    The Administrative Law Judge (ALJ) denied benefits at the last step of the
    five-step sequence for determining disability. See Wall v. Astrue, 
    561 F.3d 1048
    ,
    1052 (10th Cir. 2009) (summarizing steps).
    At step one the ALJ confirmed that Mr. Chrismon has not engaged in
    substantial gainful activity since September 30, 2008, the alleged onset date.
    At step two the ALJ found Mr. Chrismon “has the following severe
    impairments: Status post traumatic left C6-7 facet disruption with left C7
    radiculopathy with sequelae including left C6-7 facetectomy, foraminotomy and
    C6-T1 posterior fusion and instrumentation; Depression and Schizoaffective
    Disorder; [and] Substance Abuse Disorder.” App. Vol. 2 at 18.
    At step three the ALJ held that Mr. Chrismon’s condition did not meet or equal
    any of the presumptively disabling impairments listed in 20 C.F.R. Pt. 404, Subpart
    P, App. 1.
    -2-
    At step four the ALJ determined that Mr. Chrismon has a residual functional
    capacity (RFC) for a limited range of light work, precluding a return to his past
    relevant work. Specifically, the ALJ found Mr. Chrismon’s light RFC to be
    restricted by “further postural limitations in that [he] is unable to stoop due to status
    post fracture of [his] cervical spine with fixation and [he] can perform only simple
    and some complex tasks due to problems with his concentration.” App. Vol. 2 at
    20-21.
    Finally, the ALJ concluded at step five that Mr. Chrismon is not disabled
    because, “[c]onsidering [his] age, education, work experience, and residual
    functional capacity, there are jobs that exist in significant numbers in the national
    economy that [he] can perform.” The vocational expert (VE) who testified at the
    evidentiary hearing identified the jobs of motel housekeeper, electrical assembler,
    bench assembler, and optical assembler. Id. at 26-27.
    The ALJ chose not to rely on a medical source opinion reflecting the severity
    of Mr. Chrismon’s mental condition because it lacked supporting longitudinal
    records. On review before the Appeals Council, however, Mr. Chrismon
    supplemented the record by submitting treatment notes from the medical source. The
    Appeals Council accepted this new material but summarily concluded that it did not
    provide a basis for changing the ALJ’s decision. It therefore denied review, making
    the ALJ’s decision the final decision for purposes of judicial review. See Wall,
    
    561 F.3d at 1051
    .
    -3-
    II. CHALLENGES TO AGENCY DECISION
    Mr. Chrismon contends that the ALJ (1) erred in applying the listings at step
    three; (2) failed to propound a proper hypothetical to the VE; (3) incorrectly
    considered the medical source opinions; and (4) improperly performed the credibility
    determination. Mr. Chrismon’s briefing is not as clear as this list might suggest. He
    interjects numerous objections, many only in passing, while discussing the
    designated issues. We have considered all of the arguments material to our
    disposition, but we address here only those of sufficient substance and relevance to
    merit explicit discussion.
    A. Challenge to Step-Three Determination
    Mr. Chrismon contends the ALJ misapplied the definition of “repeated
    episodes of decompensation, each of extended duration” in 20 C.F.R. Pt. 404,
    Subpart P, App. 1 § 12.00(C)(4),1 and, as a consequence, erred in holding that he
    failed to satisfy the severity criteria in the listings for Schizophrenic Disorder, id.
    § 12.03, and Affective Disorder, id. § 12.04, both of which require such episodes.
    The magistrate judge summarily rejected Mr. Chrismon’s objection regarding the
    definition in § 12.00(C)(4), because in his district court brief Mr. Chrismon referred
    only to that introductory regulation and “did not identify a specific listing [such as
    1
    This regulation, introducing the mental-impairment listings that follow it,
    explains generally what episodes of decompensation are and clarifies that the
    “repeated” episodes “of extended duration” required in the subsequent listings
    “means three episodes within 1 year . . . each lasting for at least 2 weeks.”
    -4-
    § 12.03 or § 12.04] and discuss the evidence related to that listing.” App. Vol. 1 at
    45. Mr. Chrismon points out, however, that the ALJ had specifically discussed the
    listings in § 12.04, to which the definition in § 12.00(C)(4)—and hence his associated
    objection—clearly applies.2 Nonetheless, his objection here fails for other reasons,
    so we need not enmesh ourselves in a debate over the magistrate judge’s ruling.
    There are two sets of potentially relevant severity criteria in the cited listings,
    commonly known as the “B criteria” in §§ 12.03(B) and 12.04(B) and the “C criteria”
    in §§ 12.03(C) and 12.04(C). The former require the specified mental impairment to
    result “in at least two of the following: 1. Marked restriction of activities of daily
    living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked
    difficulties in maintaining concentration, persistence, or pace; or 4. Repeated
    episodes of decompensation, each of extended duration.” 
    20 C.F.R. §§ 12.03
    (B),
    12.04(B). The ALJ found that none of these four B criteria were met. Thus,
    regardless of Mr. Chrismon’s objection to the ALJ’s assessment of episodes of
    decompensation for the fourth criterion (the only one he challenges), he still would
    not qualify for either listing under the B criteria.
    Mr. Chrismon appears to recognize this problem and insists that, apart from
    the B criteria, a claimant also “meets or equals a listed impairment if he or she has
    2
    The ALJ did not discuss § 12.03, but Mr. Chrismon contends the “diagnosis
    of schizophrenia would also qualify for Listing § 12.03,” which contains the same
    severity criteria as § 12.04. Aplt. Opening Br. at 19. Adding the reference to § 12.03
    does not bolster his position, which fails for the same reasons under both listings.
    -5-
    four episodes of decompensations and deteriorations resulting in a loss of adaptive
    functioning, documented by the need for a more structured psychological support
    system, three within a year or an average of once every four months, each lasting for
    two weeks. 20 CFR Pt. 404, Subpt. P, App. 1 § 12.00C4.” Reply Br. at 7-8; see also
    Aplt. Br. at 18. But § 12.00(C)(4) does not mention this overarching four-episode
    rule, nor does any other regulation or listing.
    Mr. Chrismon may have meant to refer to the alternative C criteria for the cited
    listings, which can be satisfied by repeated episodes of decompensation (again, three
    in a year, see supra n.1) without any of the additional functional restrictions required
    by the B criteria. See 
    20 C.F.R. §§ 12.03
    (C)(1), 12.04(C)(1). But an argument
    relying on the C criteria would run into the same general problem as the B criteria
    argument. Repeated episodes of decompensation satisfy the C criteria only if also
    accompanied by a “[m]edically documented history of a chronic . . . disorder of at
    least 2 years’ duration that has caused more than a minimal limitation of ability to do
    basic work activities, with symptoms or signs currently attenuated by medication or
    psychosocial support.” 
    20 C.F.R. §§ 12.03
    (C), 12.04(C).
    Mr. Chrismon has not even attempted to demonstrate that this qualification is
    met here, and it is not our role to shore up his argument for him, Garrett v. Selby
    Connor Maddux & Janer, 
    425 F.3d 836
    , 840 (10th Cir. 2005); see also Berna v.
    Chater, 
    101 F.3d 631
    , 632 (10th Cir. 1996) (noting the scope of our review in social
    -6-
    security cases is “limited to the issues the claimant properly preserves in the district
    court and adequately presents on appeal”).3
    B. Challenge to VE Hypothetical
    Mr. Chrismon objects that, in posing the dispositive hypothetical to the VE,
    the ALJ summarily referred to two medical-source reports containing physical and
    mental limitations rather than articulating the limitations himself.4 As the magistrate
    judge pointed out, however, Mr. Chrismon “did not identify any specific problems
    related to the ALJ’s manner of presenting the hypothetical question.” App. Vol. 1
    at 46. We address five issues concerning the VE’s testimony, one raised by the
    magistrate judge, and the others by Mr. Chrismon.
    1. RFC conflict with a functional limitation
    The magistrate judge independently identified one potential problem: the
    ALJ’s RFC determination conflicts with one of the functional limitations set out in
    the corresponding exhibit that was presented to the VE. The exhibit indicates
    Mr. Chrismon could occasionally stoop, while the ALJ determined he was unable to
    3
    The Commissioner further argues that the ALJ correctly found Mr. Chrismon
    had shown no more than two episodes of decompensation satisfying the 2-week
    durational requirement. Given the dispositive threshold deficiencies in
    Mr. Chrismon’s position noted above, we need not pursue the merits of this
    fact-intensive dispute.
    4
    Mr. Chrismon complains that the ALJ’s “hypothetical had no specific
    limitations for any of the physical demands of sitting, standing, walking, lifting, as
    required,” Aplt. Opening Br. at 20, even though the referenced exhibit put all of these
    RFC components before the VE, see App. Vol. 3 at 316.
    -7-
    stoop at all. But the magistrate judge deemed this inconsistency harmless because
    (per the authoritative Dictionary of Occupational Titles (DOT), 
    20 C.F.R. §§ 404.1566
    (d)(1), 416.966(d)(1)) three of the four occupations the VE identified do
    not require stooping and the 704,000 national and 48, 599 regional jobs they entail
    indisputably reflect work existing in the requisite “significant numbers” to satisfy the
    Commissioner’s burden at step five, 
    20 C.F.R. §§ 404.1560
    (c)(2); 416.960(c)(2).
    Mr. Chrismon does not challenge this analysis on appeal, and we see no reason
    to question it sua sponte. See Berna, 
    101 F.3d at 633-34
     (refusing to review
    unchallenged rationale given by magistrate judge to affirm denial of benefits); see
    also Garrett, 
    425 F.3d at 840
     (explaining that it is not this court’s role to construct
    arguments for litigants).
    2. Alleged conflict between mental limitations reports
    Mr. Chrismon does argue that the ALJ’s reliance on the particular report
    specifying mental limitations (Exhibit 10F) was improper because another report
    relating to mental limitations (Exhibit 9F) “contains moderate limitations in
    maintaining social functioning and moderate difficulties maintaining concentration,
    persistence, or pace” that were consequently “withheld from the VE by the ALJ.”
    Aplt. Opening Br. at 22. This argument ignores that the two reports (which were
    prepared the same day by the same doctor) serve distinct functions at different steps
    of the disability analysis, and the ALJ properly used Exhibit 10F at step five.
    -8-
    Exhibit 9F is a “Psychiatric Review Technique” (PRT) used to assess mental
    impairments for purposes of steps two (identifying severe impairments) and three
    (rating severity for the listings). See generally 
    20 C.F.R. §§ 404
    .1520a, 416.920a.
    The PRT is structured specifically in terms of the B and C criteria of the listings for
    mental impairments. As relevant here, it uses only the four broad categories of
    limitation referenced in the B criteria: restriction of activities of daily living;
    difficulties in maintaining social functioning; difficulties in maintaining
    concentration, persistence, or pace; and episodes of decompensation. App. Vol. 3 at
    302.
    In contrast, Exhibit 10F is a detailed “Mental Residual Functional Capacity
    Assessment” (MRFCA) of twenty specific mental functions. 
    Id. at 306-07
    . The
    MRFCA breaks down the broad categories of the PRT into functional components for
    the finer vocational determinations required at steps four and five:
    The adjudicator must remember that the limitations identified in the
    “paragraph B” and “paragraph C” criteria are not an RFC assessment
    but are used to rate the severity of mental impairment(s) at steps 2 and 3
    of the sequential evaluation process. The mental RFC assessment used
    at steps 4 and 5 of the sequential evaluation process requires a more
    detailed assessment by itemizing various functions contained in the
    broad categories found in paragraphs B and C of the adult mental
    disorders listings . . . and summarized on the [PRT].
    Soc. Sec. Ruling (SSR) 96-8p, 
    1996 WL 374184
     at *4 (1996). Thus the PRT has
    single global ratings for social function and maintaining concentration, persistence,
    or pace, while the MFRCA breaks these categories down into five and eight distinct
    functions, respectively. See App. Vol. 3 at 306-07.
    -9-
    Against this backdrop, Mr. Chrismon’s objection to the use of the MRFCA
    due to its “inconsistency” with the PRT is meritless. The PRT indicated “moderate”
    difficulties in social function and maintaining concentration, persistence, or pace, 
    id. at 302
    , and the MRFCA fleshed out these global ratings by (1) noting a moderate
    limitation on “ability to interact with the general public,” but identifying no
    significant limitation on four other social interaction abilities, and (2) noting a
    moderate limitation on “ability to carry out detailed instructions,” but identifying no
    significant limitation on seven other measures of concentration and persistence, 
    id. at 306-07
    . There is no inconsistency. The medical source who prepared both
    documents simply explained on the MRFCA the particularized underpinnings for the
    PRT’s categorical ratings, and the ALJ properly used the former rather than the latter
    for the step-five determination.5
    3. Job determination without sufficient ALJ findings
    Mr. Chrismon objects that the determination whether there were jobs whose
    demands could be met despite his limitations was made “in the VE’s head” without
    adequate ALJ findings, contrary to Winfrey v. Chater, 
    92 F.3d 1017
    , 1025 (10th Cir.
    1996). We have repeatedly explained that proceeding in this way is a problem only
    at step four and is perfectly acceptable (and routinely done) at step five. Krauser,
    5
    We have no occasion to consider the distinct issue whether PRT ratings must
    be incorporated in a VE hypothetical at step four or five when there is no associated
    MRFCA to detail the claimant’s particularized mental limitations for that purpose.
    Cf. Winschel v. Comm’r, 
    631 F.3d 1176
    , 1180-81 (11th Cir. 2011).
    - 10 -
    
    638 F.3d at 1333
     (quoting Berna, 
    101 F.3d at 633
     (quoting Winfrey, 
    92 F.3d at 1025
    )).
    4. Conflict between exhibit and ALJ decision
    Mr. Chrismon objects that the ratings on Exhibit 10F limited him to simple
    tasks while the ALJ stated in his written decision that Mr. Chrismon could do “simple
    and some complex tasks.” App. Vol. 2 at 21. His objection overlooks specific
    language in the exhibit. Although it may appear to Mr. Chrismon that the ratings
    indicating he is moderately limited in carrying out “detailed instructions” but not
    “very short and simple instructions,” App. Vol. 3 at 306, rule out all complex tasks,
    the medical source herself went on to clarify that Mr. Chrismon could “perform . . .
    simple and some complex tasks,” id. at 308, just as the ALJ found.6
    5. Failure to include cognitive testing results in hypothetical
    Mr. Chrismon objects that the hypothetical to the VE did not include the
    results of some cognitive testing done during his hospitalization in 2009. See App.
    Vol. 3 at 347. The magistrate judge noted that the ALJ had specifically cited these
    6
    Even accepting Mr. Chrismon’s interpretation of the exhibit, the conclusion
    he draws—that the inconsistency between an unqualified restriction to simple work
    conveyed to the VE and a looser allowance for simple and some complex work in the
    ALJ’s decision reflects reversible error—would not follow in any event. On
    Mr. Chrismon’s view, the VE identified jobs he could perform despite a stricter
    limitation on vocational complexity than the ALJ ultimately found was necessary to
    impose. How this could possibly have prejudiced him escapes us. Alleged “errors”
    that favor the claimant are not grounds for reversal. See Chapo v. Astrue, 
    682 F.3d 1285
    , 1288 (10th Cir. 2012) (holding ALJ does not commit reversible error when full
    force of evidence adverse to claimant is tempered in claimant’s favor).
    - 11 -
    results and had found they supported a restriction to “simple, repetitive tasks,” App.
    Vol. 2 at 24. The magistrate judge concluded it was “abundantly clear that the ALJ
    considered the evidence and weighed it in formulating the RFC,” App. Vol. 1 at 48.
    That is correct as far as it goes, but it does not address the thrust of Mr. Chrismon’s
    objection, which is that the ALJ did not convey the test results to the VE.
    The VE need not consider the contents of every medical report in the record.
    Rather, the VE must take into account the functional limitations properly found by
    the ALJ on the basis of the record: a hypothetical posed to the VE is sufficient if “it
    contained all of the limitations found to exist by the ALJ.” Barnett v. Apfel, 
    231 F.3d 687
    , 690 (10th Cir. 2000) (emphasis added). Although the ALJ may err by failing to
    properly determine the full range of limitations in the first place, that is a separate
    issue. Mr. Chrismon does not argue that that the relevant functional limitation the
    ALJ included in his hypothetical to the VE was improperly derived from the reported
    testing results, only that the results themselves should have been included.
    That is not the end of matter, however, because the ALJ did not include his
    own restriction to “simple, repetitive tasks” in the hypothetical to the VE. Although
    Mr. Chrismon does not fault the ALJ for this specific omission, it is integrally related
    to the objection he does make about not conveying the 2009 cognitive test results.
    We conclude the omission does not require reversal, however, because any error was
    harmless.
    - 12 -
    All four jobs identified by the VE had an SVP (specific vocational
    preparation) rating of two, involving unskilled work “‘which needs little or no
    judgment to do simple duties that can be learned on the job in a short period of
    time.’” 
    Id.
     (quoting 
    20 C.F.R. §§ 404.1568
    (a)). And two had the most basic
    reasoning-level demands, requiring only a “commonsense understanding to carry out
    simple one- or two-step instructions,” DOT App. C, Part III: motel housekeeper,
    DOT code 323.687-014; and optical assembler, DOT code 713.687-018. The
    national economy has 180,000 and 32,000 positions, respectively, for these jobs
    (15,000 and 2,500 regionally). See App. Vol. 2 at 27, 46-47. These “significant
    numbers” satisfy the Commissioner’s burden at step five. 
    42 U.S.C. § 423
    (d)(2)(A).
    Any error in failing to convey the test results to the VE was therefore harmless
    because at least two of the four jobs identified by the VE are consistent with the
    restriction of “simple, repetitive tasks.” See Allen v. Barnhart, 
    357 F.3d 1140
    , 1145
    (10th Cir. 2004) (noting that improper reliance on two of three jobs identified by VE
    could have been deemed harmless error “had the number of available jobs identified
    by the VE [in the one occupation consistent with the claimant’s RFC] not been one
    hundred but considerably greater”); see, e.g., Stokes v. Astrue, 274 F. App’x 675, 684
    (10th Cir. 2008) (applying Allen to find harmless error under similar circumstances,
    holding that “even if we consider only the[] two jobs [that properly matched the
    claimant’s RFC] out of the four considered by the ALJ” no “reasonable factfinder
    - 13 -
    could have determined that suitable jobs did not exist in significant numbers” at step
    five).
    C. Treatment of Medical-Source Opinion
    Mr. Chrismon argues that the ALJ erred in considering the medical source
    opinions. We agree. The ALJ’s analysis was legally inadequate and unsupported by
    the administrative record.
    After eight months of treatment, Mr. Chrismon’s treating psychiatrist and his
    licensed professional counselor filled out a mental residual functional capacity
    assessment form noting many marked and moderate limitations that the VE indicated
    would likely preclude him from working.7 See App. Vol. 3 at 385-87. The ALJ
    summarily discounted this assessment through a truncated analysis that (1) did not
    follow the prescribed procedure for evaluating medical source opinions and (2) was
    not supported by the administrative record.
    “Our case law, the applicable regulations, and the Commissioner’s pertinent
    Social Security Ruling (SSR) all make clear that in evaluating the medical opinions
    of a claimant’s treating physician, the ALJ must complete a sequential two-step
    inquiry, each step of which is analytically distinct.” Krauser, 
    638 F.3d at 1330
    .
    “The initial determination the ALJ must make with respect to a treating physician’s
    7
    The VE’s only reservation was that the ratings used, though the same as
    those used on agency forms (“not significantly,” “moderately,” and “markedly”
    limited), were not defined and hence might not have been understood in precisely the
    same way as agency ratings. App. Vol. 2 at 48-51.
    - 14 -
    medical opinion is whether it is conclusive, i.e., is to be accorded controlling weight,
    on the matter to which it relates.” 
    Id.
     (internal quotation marks omitted). “Such an
    opinion must be given controlling weight if it is well-supported by medically
    acceptable clinical or laboratory diagnostic techniques and is not inconsistent with
    other substantial evidence in the record.” 
    Id.
     But “[e]ven if a treating opinion is not
    given controlling weight, it is still entitled to deference.”8 
    Id.
     Thus, “at the second
    step in the analysis, the ALJ must make clear how much weight the opinion is being
    given (including whether it is being rejected outright) and give good reasons, tied to
    the factors specified in the [applicable] regulations for this particular purpose, for the
    weight assigned.” 
    Id.
     If this procedure is not followed, a remand is required. 
    Id.
    Here the ALJ did not follow this procedure. Rather, the ALJ decision
    collapsed the two-step inquiry into a single point, stating only that he “gives this
    opinion little weight” because “longitudinal mental health records were not submitted
    as evidence on this record” and “[t]hus the basis of this opinion, if any, cannot be
    assessed or reviewed.” App. Vol. 2 at 25-26. The decision does not mention the
    controlling-weight question at all. Although we could perhaps read a reference to the
    absence of supporting longitudinal records as an implicit finding that the opinion
    lacked the “medically acceptable clinical or laboratory diagnostic techniques” to
    qualify as controlling under 
    20 C.F.R. §§ 404.1527
    (d)(2), 416.912(d)(2), that would
    8
    “In many cases, a treating source’s medical opinion will be entitled to the
    greatest weight and should be adopted, even if it does not meet the test for
    controlling weight.” SSR 96-2p, 
    1996 WL 374188
    , at *4 (1996).
    - 15 -
    still leave undone the second step of the analysis, which is governed by the distinct
    set of factors set out in 
    id.
     §§ 404.1527(d)(1)-(6), 416.927(d)(1)-(6). See Krauser,
    
    638 F.3d at 1330-31
     (explaining that “a deficiency as to the conditions for controlling
    weight raises the question of how much weight to give the opinion, it does not
    resolve the latter, distinct inquiry,” which “is governed by its own set of factors”).
    Explicit findings properly tied to each step of the prescribed analysis facilitate
    meaningful judicial review.
    In addition to this analytical deficiency, the administrative record does not
    support the substantive basis for discounting the opinion. Mr. Chrismon properly
    submitted, and the Appeals Council properly accepted, the longitudinal treatment
    notes underlying the treating source opinion. See generally O’Dell v. Shalala, 
    44 F.3d 855
    , 858-59 (10th Cir. 1994) (discussing 
    20 C.F.R. § 404.970
    (b)). At that point
    the sole ground invoked by the ALJ for discounting the opinion ceased to apply. And
    the Appeals Council did not fill the gap (or remand for the ALJ to do so); it simply
    denied review without any analysis of the treating source opinion in light of the new
    records.
    The magistrate judge dismissed this problem by noting that Mr. Chrismon had
    not challenged the Appeals Council’s decision for failing to explain why the new
    evidence did not affect the ALJ’s handling of the treating source opinion. But
    Mr. Chrismon’s objection to the ALJ’s treatment of the medical source opinions is
    sufficient for us to review this issue. Our precedent holds that the Appeals Council is
    - 16 -
    not required to justify denying review in this situation and hence no reversible error
    can be ascribed to it on this basis:
    While an express analysis of the Appeals Council’s determination
    would have been helpful for purposes of judicial review, [the claimant]
    points to nothing in the statutes or regulations that would require such
    an analysis where new evidence is submitted and the Appeals Council
    denies review. We therefore reject [the claimant’s] contention that the
    Appeals Council erred by failing to specifically discuss [the newly
    submitted] treatment records.
    Martinez v. Barnhart, 
    444 F.3d 1201
    , 1207-08 (10th Cir. 2006).
    Judicial review of the agency decision proceeds in this situation by simply
    including the new evidence in the administrative record against which the ALJ’s
    decision is evaluated. As Martinez explained:
    Because the Appeals Council considered [the supplemental]
    treatment records, the records are a “part of the administrative record to
    be considered by this court when evaluating the ALJ’s decision for
    substantial evidence.” O’Dell v. Shalala, 
    44 F.3d 855
    , 859 (10th Cir.
    1994); accord Threet v. Barnhart, 
    353 F.3d 1185
    , 1191 (10th Cir.
    2003). We must therefore consider the entire record, including [the
    new] treatment records, in conducting our review for substantial
    evidence on the issues presented.
    
    Id. at 1208
     (alterations in original omitted).
    We are left with a treating source opinion, potentially dispositive as to
    disability, which the ALJ rejected for a reason the administrative record cannot
    support. The Commissioner attempts to shore up the deficiency by offering
    alternative justifications for the ALJ’s conclusion, but post hoc rationales run afoul
    of the general rule that we cannot uphold the agency’s decision on grounds not
    - 17 -
    provided by the agency itself. See SEC v. Chenery Corp., 
    318 U.S. 80
    , 94-95 (1943);
    Haga v. Astrue, 
    482 F.3d 1205
    , 1207-08 (10th Cir. 2007).
    Harmless error is not viable here because we cannot “confidently say that no
    reasonable administrative factfinder, following the correct analysis, could have
    resolved the [issue] in any other way.” Allen, 
    357 F.3d at 1145
    . The Commissioner
    does not contend, nor do we conclude, that the post hoc justifications she offers—and
    Mr. Chrismon vigorously disputes—meet this exacting standard. Accordingly, we
    remand the matter for consideration in light of the full administrative record.
    D. Credibility
    We do not address Mr. Chrismon’s challenge to the ALJ’s assessment of his
    credibility—that his complaints “are not credible to the extent they are inconsistent
    with the [ALJ’s] residual functional capacity assessment.” App. Vol. 2 at 22. This
    assessment is linked to the ALJ’s rejection of the medical opinion discussed
    immediately above. Proceedings on remand may affect the proper analysis of
    Mr. Chrismon’s credibility.
    - 18 -
    The judgment of the district court is reversed and the matter is remanded with
    directions to remand, in turn, to the agency for further proceedings consistent with
    this order and judgment.
    ENTERED FOR THE COURT,
    Scott M. Matheson, Jr.
    Circuit Judge
    - 19 -