F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JEANETTE P. TIGER,
Plaintiff-Appellant,
v. No. 97-5134
(D.C. No. 96-CV-353-W)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
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
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
In 1992, claimant Jeanette P. Tiger filed an application for supplemental
security income benefits under Title XVI of the Social Security Act, alleging
disability since September of 1991 as a result of asthma and nervous tension. Her
application was denied administratively, both initially and upon reconsideration.
After a hearing, an administration law judge (ALJ) determined that claimant was
not disabled under the Social Security Act. His decision became the final
decision of the agency when the Appeals Council denied claimant’s request for
review. The district court affirmed the denial of benefits, and claimant now
appeals. Our jurisdiction arises under 42 U.S.C. § 405(g). Because we conclude
that both the district court and ALJ committed legal error, we reverse and remand
for further agency proceedings.
To qualify for disability benefits, claimant must demonstrate an “inability
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The agency has established a
five-step sequential test for evaluating a disability. See 20 C.F.R. § 416.920; see
also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing five
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steps). Here, the ALJ determined, at step two of the sequential analysis, that
claimant’s alleged mental impairments were not severe and, at step four of the
sequential analysis, that her asthma did not preclude her from performing her past
relevant work. On appeal, claimant raises two main issues with regard to her
alleged mental impairments. First, she contends that the ALJ’s step two
determination that her mental impairments are not severe is not supported by
substantial evidence in the record. Specifically, she contends that the ALJ’s
analysis at this step ignored pertinent record evidence regarding her mental
limitations and misconstrued other evidence of record. She also asserts that the
ALJ substituted his own opinion for that of medical experts.
The ALJ, in reaching his determination that claimant’s mental impairments
are not severe, relied on a report by psychiatrist Dr. Dean assessing claimant’s
mental status. He summarized Dr. Dean’s diagnosis that claimant suffered from
generalized anxiety disorder, mixed personality disorder and major depression,
but then discussed certain observations by Dr. Dean which would seem to
diminish that diagnosis. He noted, for example, that Dr. Dean found claimant to
be “friendly, appropriate, and well grounded in reality,” and that she
“demonstrated no unusual behavior.” Appellant’s App., Vol. II, at 17. Dr. Dean
did not fill out a Psychiatric Review Technique (PRT) or comparable form
assessing claimant’s residual functional capacity in light of his diagnosis. The
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ALJ, without discussing or mentioning any other medical evidence, ultimately
concluded that claimant “can concentrate, understand, remember, and carry out
instructions. She can use judgment, respond to supervision and co-workers, deal
with usual work setting and routine changes.” Id. As required by agency
regulation, the ALJ filled out a PRT form concluding that claimant had no severe
mental impairments. See Cruse v. United States Dep’t of Health & Human Servs.,
49 F.3d 614, 617 (10th Cir. 1995).
First, we agree with appellant that the ALJ apparently did not consider
other record evidence regarding claimant’s alleged mental impairments. Dr.
Carolyn Goodrich, an agency psychologist, filled out a PRT form and a Mental
Residual Functional Capacity form after a review of claimant’s medical records,
including the psychiatric report from Dr. Dean. Based on the three points in Dr.
Dean’s diagnosis, Dr. Goodrich concluded that claimant had a severe mental
impairment which required further assessment of her mental residual functional
capacity. Id. at 37. Dr. Goodrich concluded that claimant’s mental impairments
resulted in some functional limitations, including marked limitations in her
abilities to understand, remember, and carry out detailed instructions, and to
interact appropriately with the general public. Id. at 45-46. Dr. Goodrich added
the following hand-written notes under “Functional Capacity Assessment:”
“Claimant can understand & perform simple tasks. She can interact appropriately
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with co-workers & supervisors, but not the general public. She can adapt to a
work situation.” Id. at 47. Dr. Goodrich’s assessment of claimant was reviewed
and affirmed by another agency psychologist, Dr. Smallwood. Id. Nowhere in his
decision did the ALJ mention, discuss, or weigh Dr. Goodrich’s findings or
opinions.
Social Security Ruling 96-6p states that findings regarding the nature and
severity of an impairment made by state agency consultants and other program
physicians and psychologists “must be treated as expert opinion evidence of
nonexamining sources.” Soc. Sec. Rul. 96-8p, 1996 WL 374180, at *1. Further,
ALJs “may not ignore these opinions and must explain the weight given to these
opinions in their decisions.” Id. Dr. Goodrich’s assessment of claimant’s mental
capabilities was contrary in some respects to the ultimate conclusions reached by
the ALJ in this case. The ALJ’s failure to discuss and weigh this record expert
medical evidence violated the requirements of Soc. Sec. Rul. 96-6p and
undermined the ALJ’s ultimate conclusions regarding claimant’s alleged mental
impairments. 1
1
We also note that the district court erred in concluding that the ALJ was not
required to discuss this evidence. See Appellant’s App., Vol. I, at 13. “The
agency’s rulings are binding on an ALJ.” Nielson v. Sullivan, 992 F.2d 1118,
1120 (10th Cir. 1993).
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Finally, we also agree with claimant that Dr. Dean’s report does not support
the ALJ’s conclusions. Dr. Dean did not discuss or opine how claimant’s mental
limitations might affect her residual functional capacity or her ability to perform a
job. Therefore, to the extent that the ALJ made findings about claimant’s mental
limitations while appearing to rely solely on Dr. Dean’s report, he did so without
supporting evidence. An ALJ cannot substitute his own opinion for medical
opinion. See Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d
739, 744 (10th Cir. 1993).
Because we conclude that the ALJ erred at step two in reaching his
conclusion that claimant’s mental impairments were not severe, we need not reach
claimant’s second issue: a challenge to the ALJ’s step four determination that she
could return to her past relevant work. We note, however, that at step four even
nonsevere impairments should be taken into consideration in combination with
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any severe impairments. See Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *5. The
judgment of the United States District Court for the Northern District of
Oklahoma is REVERSED and the case REMANDED with a direction that the
district court remand the case to the agency for further proceedings.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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