F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 22 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NANCY R. MACK,
Plaintiff-Appellant,
v. No. 97-5204
(D.C. No. 96-CV-503)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, 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
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. 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.
Claimant Nancy R. Mack appeals the district court’s order 1 affirming the
Commissioner’s decision to deny her application for social security disability
benefits. She alleges disability since January 8, 1993 due to depression, panic
disorder and heart problems. Following an administrative hearing, the
Commissioner determined at step four of the five-step analysis, see Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps), that
claimant could perform a full range of sedentary work, including her past relevant
work as an accounts receivable clerk or billing clerk. Because the agency’s
findings are inadequate to evaluate whether substantial evidence supports the
denial of benefits, we remand for further findings.
We review the Commissioner’s decision to determine whether it is
supported by substantial evidence and whether correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).
“Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Soliz v. Chater, 82 F.3d 373, 375
(10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971))
(further quotation omitted).
1
The parties consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
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On appeal, claimant alleges that the Commissioner failed to consider the
effects of her depression and panic disorder on her ability to perform her past
relevant work. A severe mental impairment is a nonexertional impairment which
must be evaluated to determine if the claimant can engage in substantial gainful
work activity. See Cruse v. United States Dep’t of Health & Human Servs.,
49 F.3d 614, 619 (10th Cir. 1995).
In addressing her panic disorder, the Administrative Law Judge (ALJ)
stated that it had fluctuated over time and the medical reports indicated that she
was able to function fully. See R. Vol. II at 17. These findings are insufficient
for us to determine whether the ALJ considered the medical evidence that
claimant’s panic disorder was untreated as of November 16, 1994, see R. Vol. II
at 253, see also id. at 241-43, and that it interfered with her daily functioning,
see id. at 237. Moreover, contrary to the ALJ’s finding, most of the medical
reports do not address the question of whether claimant can function despite her
mental impairments. In addition, the ALJ did not address claimant’s depression.
Therefore, on remand, the ALJ should make additional findings to support his
conclusion that claimant’s panic disorder did not affect her ability to work,
and make findings on the effect, if any, of claimant’s depression on her ability
to work.
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The ALJ’s decision indicated that he considered claimant’s allegations
of “pain and other limitations,” id. at 16, but did not explain why the evidence
led him to find not credible claimant’s allegations that her mental impairments
adversely affected her ability to work. The ALJ apparently determined that
claimant’s subjective complaints were not credible, but he failed to link that
finding to the specific evidence. See Kepler v. Chater, 68 F.3d 387, 391
(10th Cir. 1995) (ALJ listed factors to be considered in evaluating claimant’s
nonexertional impairments, but “did not explain why the specific evidence
relevant to each factor led him to conclude claimant’s subjective complaints
were not credible”). The ALJ’s “‘findings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise
of findings.’” Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.
1988)). On remand, the ALJ should link his credibility findings to substantial
evidence in the record.
If, on remand, the ALJ determines that claimant’s mental impairments
adversely affect her ability to work, then he should make findings on the mental
demands of her past work, and compare the mental demands of her prior work
with her capabilities. See Cruse, 49 F.3d at 619 (reversing due to ALJ’s failure
to consider effect of claimant’s mental impairments on her ability to work);
Henrie v. United States Dep’t of Health & Human Servs., 13 F.3d 359, 361
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(10th Cir. 1993) (remanding to develop a record on claimant’s ability to perform
past work considering her psychological impairments).
To the extent the ALJ found claimant not disabled because she discontinued
counseling for her mental impairments, on remand the ALJ should explore the
reasons claimant did not continue to receive counseling. See Teter v. Heckler,
775 F.2d 1104, 1107 (10th Cir. 1985) (identifying four elements to consider
when evaluating whether claimant’s failure to undertake treatment will preclude
a finding of disability). If the ALJ determines claimant’s decision not to receive
counseling contributes to a conclusion that she is not disabled within the meaning
of the Social Security Act, then he should make findings adequate to support his
conclusion.
The district court’s order is REVERSED and REMANDED, with
instructions to remand the case to the Commissioner for additional findings
on claimant’s mental impairments consistent with this order and judgment,
and for any further proceedings the ALJ finds necessary.
Entered for the Court
David M. Ebel
Circuit Judge
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