Cox v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

SHARON F. COX,

Plaintiff-Appellant,

v. No. 98-5203
(D.C. No. 97-CV-544-J)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and McKAY, 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(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This order and judgment is not binding precedent, except under the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. 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.
 Plaintiff appeals from an order of the magistrate judge, sitting for the

district court by consent of the parties pursuant to 28 U.S.C. § 636(c), affirming

the decision of the Commissioner of Social Security that she is not disabled

within the meaning of the Social Security Act and denying her claim for

supplemental security income and disability insurance benefits. We review the

Commissioner’s decision to ascertain whether it is supported by substantial

evidence in the record and whether the Commissioner applied the correct legal

standards. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027,

1028 (10th Cir.1994). We have jurisdiction pursuant to 42 U.S.C. § 405(g) and

28 U.S.C. § 1291, and we reverse and remand for further proceedings.

I. Background

Plaintiff was born in 1956 and has an eleventh grade education. In May

1990, she was severely injured when her hair was caught in a machine at work. A

piece of her scalp was torn away, she suffered severe injuries to her forehead, a

vertebra in her neck was fractured, and her neck, back and shoulder muscles were

severely strained. She went through lengthy rehabilitation and was not released to

return to work until February 1992. Shortly after she went back to work,

however, she began suffering from severe gastrointestinal problems. She was

diagnosed with a “giant” duodenal ulcer in her stomach, see Appellant’s App.,

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Vol. II at 402, 404, which ultimately required surgery to remove one-third of her

stomach. After this surgery, she was diagnosed with a post-operative

gastrointestinal disorder known as “dumping syndrome,” from which she suffers

chronic stomach cramping and diarrhea as well as chronic headaches and fatigue. 1

Plaintiff struck her head on a steel bar in January 1994, and began to suffer

nausea and blurred vision. In October 1994, plaintiff was examined by a

consulting physician, Dr. Dalessandro, upon referral of the Commissioner. In

addition to noting plaintiff’s numerous medical impairments, Dr. Dalessandro

diagnosed plaintiff with depression.

Plaintiff applied for benefits in 1994, alleging she had been disabled since

March 1994 due to depression, ulcers, dumping syndrome, back and neck pain and

headaches. See id. at 33-35, 62-63, 77-78. After her application was denied

initially and on reconsideration, plaintiff sought and received a de novo hearing

before an administrative law judge (ALJ). Following the hearing, the ALJ denied

plaintiff’s claim at step five of the evaluation sequence. See generally Williams

v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-step process).

The ALJ found that, while plaintiff could not perform her past relevant work as

1
Dumping syndrome “occurs after eating,” and is “characterized by flushing,
sweating, dizziness, weakness, and vasomotor collapse, occasionally with pain
and headache; result[ing] from rapid passage of large amounts of food into the
small intestine.” Stedman’s Medical Dictionary, at 1728 (26th ed.1995).

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an industrial assembly worker, cashier, electronics factory worker or seismograph

equipment operator, she retained the residual functional capacity (RFC) to

perform the full range of sedentary work, with a limitation that she could not do

jobs that required the use of her arms overhead. The ALJ concluded that plaintiff

could perform other jobs that existed in significant numbers in the national

economy. The Appeals Council affirmed the ALJ’s decision and it became the

Commissioner’s final decision. Thereafter, plaintiff filed a complaint in district

court. The magistrate judge affirmed the Commissioner’s denial, and plaintiff’s

appeal to this court followed.

II. Evidence of Depression

Plaintiff first contends that the ALJ failed to consider properly the evidence

in the record that she suffered from depression when he failed to mention this

evidence in his decision and failed to prepare a Psychiatric Review Technique

(PRT) form. We agree.

A claimant is responsible for furnishing medical evidence of claimed

impairments, see 20 C.F.R. §§ 404.1512(a), (c), 416.912(a), (c) but the

Commissioner also has the duty to ensure that an adequate record is developed

relevant to the issues raised, see Hawkins v. Chater , 113 F.3d 1162, 1164 (10th

Cir. 1997). The ALJ is required to “evaluate every medical opinion” he receives,

20 C.F.R. §§ 404.1527(d), 416.927(d), and to “consider all relevant medical

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evidence of record in reaching a conclusion as to disability,” Baker v. Bowen , 886

F.2d 289, 291 (10th Cir. 1989). Although he is not required to discuss every

piece of evidence, the ALJ “must discuss the uncontroverted evidence he chooses

not to rely upon, as well as significantly probative evidence he rejects.” Clifton v.

Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citations omitted).

Furthermore, when a claimant for disability benefits or supplemental

security income presents evidence of a mental impairment that allegedly prevents

her from working, the ALJ must follow the procedures for evaluating mental

impairments set forth in 20 C.F.R. §§ 404.1520a and 416.920a, including the

preparation of a PRT form, which the ALJ must attach to his written decision.

See Cruse v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 617

(10th Cir. 1995); Andrade v. Secretary of Health & Human Servs. , 985 F.2d 1045,

1048-49 (10th Cir. 1993). The failure to do so is reversible error. See Hill v.

Sullivan, 924 F.2d 972, 974-5 (10th Cir. 1991).

In this case, plaintiff indicated that she suffered from depression during her

application process; indeed, the Commissioner characterized her primary

diagnosis as her mood disorder. See Appellant’s App., Vol. II at 77-78, 62.

Plaintiff stated that her “depression [was] worse” in her request for an

administrative hearing. See id . at 115. Plaintiff also stated that she does not get

dressed when she is depressed in response to a question about how her illness

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affects her ability to care for her personal needs. See id. at 113. At the

administrative hearing, plaintiff testified that she does not have any hobbies

because she is too depressed. See id . at 46. Dr. Dalessandro, a physician who

examined plaintiff at the request of the Commissioner, diagnosed plaintiff with

depression, noting that she had chronic fatigue and difficulty sleeping, that her

affect was flat and her mood was depressed, and that she was observed crying.

See id. at 193-95. Plaintiff’s application was reviewed by a psychologist for the

Commissioner, Dr. Carolyn Goodrich, who also concluded that plaintiff had

depression, though finding that her mental impairment resulted only in slight

functional limitations. See id . at 66-67.

The evidence in the record was sufficient to trigger the ALJ’s duty to

develop the record concerning plaintiff’s depression and to follow the procedures

set forth in 20 C.F.R. §§ 404.1520a and 416.920a. See Carter v. Chater , 73 F.3d

1019, 1021-22 (10th Cir. 1996) (ALJ had duty to develop record where mental

health professional had diagnosed claimant as suffering from mental impairment);

Hill , 924 F.2d at 974 (same). Nevertheless, the ALJ made no mention of any of

the uncontroverted evidence that plaintiff suffered from depression, and did not

mention, discuss, or weigh Drs. Dalessandro’s and Goodrich’s findings or

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opinions with respect to plaintiff’s depression. 2
The ALJ also failed to follow the

special procedures for evaluating mental impairments, including a failure to

complete a PRT form.

In light of the evidence in the record indicating that a mental impairment

exists, the ALJ’s failure to develop the record and to follow the special

procedures for mental impairments required by the regulations constitute errors

warranting reversal. As a reviewing court, we cannot make factual

determinations on the ALJ’s behalf. See Rapp v. United States Dep’t of Treasury ,

52 F.3d 1510, 1515 (10th Cir. 1995) (reviewing court may not compensate for

deficiencies in an agency’s decision “by supplying a reasoned basis for the

agency’s action that the agency itself has not given.”); see also Casias v.

Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991)

(appellate court may “neither reweigh the evidence nor substitute our judgment

for that of the agency”).

2
The ALJ recited a general disclaimer that he had reviewed all of the
medical evidence except those exhibits omitted because they “relate to a time not
covered by the claim, illegibility, duplicity, different physicians reporting the
same diagnoses, physician duplication of hospitalization records, failure to state a
diagnosis, statement of the claimant’s complaints without a diagnosis,
prescription of medication only, etc.” Appellant’s App. Vol. II at 16-17. We
bring to the ALJ’s attention that a general disclaimer is not a substitute for the
ALJ’s obligation to give careful consideration to all the relevant evidence and to
expressly link his findings to specific evidence. See Huston v. Bowen , 838 F.2d
1125, 1133 (10th Cir. 1988).

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 Plaintiff also contends that the ALJ disregarded his duty to fully and fairly

develop the record by not ordering a consultative mental examination to assess the

severity of her depression. Because we are remanding for the ALJ consider

plaintiff’s alleged mental impairment in the first instance, we do not address

whether a consultative examination is required. On remand, the ALJ must

determine whether to obtain a consultative examination. See Hawkins , 113 F.3d

at 1167 (10th Cir. 1997) (holding that ALJ should order consultative examination

if the claimant has shown “a reasonable possibility that a severe impairment

exists” and the examination would be “necessary or helpful to resolve the issue of

impairment.”)

III. Credibility Assessment

Plaintiff next contends that the ALJ’s assessment of the credibility of her

subjective complaints was not supported by substantial evidence. We agree.

The ALJ concluded that plaintiff could perform a full range of sedentary

work, limited only by an inability to lift her arms overhead. In reaching this

conclusion, the ALJ stated that plaintiff’s reported daily activities were consistent

with sedentary work. See Appellant’s App., Vol. II at 18. Plaintiff testified to

very limited daily activities, which do not appear consistent with the ALJ’s RFC

determination. Among other limitations, plaintiff testified that after she eats or if

she gets nervous or stressed, she suffers from stomach cramps for thirty minutes as

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a result of her post-operative dumping syndrome, and, if the medicine she takes

prior to each meal is not effective, she gets diarrhea. See id . at 33-34. She

testified she gets diarrhea two to three times a week. See id . at 35. She also

testified that she cannot sit for more than fifteen to thirty minutes at a time, cannot

stand for more than fifteen minutes at a time, and that she takes a thirty-minute

nap every day. See id . at 39-40, 45. The ALJ did not mention any of these

limitations or cite to any specific evidence in making his determination that

plaintiff’s daily activities were consistent with sedentary work.

The VE testified that, if plaintiff’s testimony was accepted as credible, she

would not be able to do any work on a sustained basis because she would be

unable to work eight hours a day, five days a week with her cramping and frequent

diarrhea, nor would there be jobs that would allow her to take a nap or to move

about from a sitting and standing position as often as she required. See id . at

51-52. “In order to engage in gainful activity, a person must be capable of

performing on a reasonably regular basis.” Byron v. Heckler , 742 F.2d 1232, 1235

(10th Cir. 1984); see also S.S.R. 96-8P, 1996 WL 374184, at *2 (requiring the

Commissioner to show that claimant can perform work on a sustained or regular

and continuing basis, meaning eight hours a day for five days a week, or an

equivalent work schedule).

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 It appears that the ALJ discredited plaintiff’s testimony concerning the

effect of her dumping syndrome based on his conclusion that “the more recent

medical evidence does not show that the [plaintiff] was seeking help for diarrhea

. . . [and] she was not receiving continuing treatment for her gastrointestinal

problems. . . .” Id. at 18. The ALJ did not specify what evidence he relied upon

to support this conclusion. See SSR 96-8p, 1996 WL 374184, *7 (“The RFC

assessment must include a narrative discussion describing how the evidence

supports each conclusion, citing specific medical facts . . . and nonmedical

evidence . . . .”) (emphasis added). We are unable to find evidence in the record

to support the ALJ’s finding. The record shows numerous diagnoses of dumping

syndrome, and chronic diarrhea and stomach cramping. In 1995, the year of

plaintiff’s administrative hearing, the medical evidence in the record shows that

plaintiff sought medical treatment and was prescribed numerous medications for

her gastrointestinal disorders throughout the year. See Appellant’s App. at 481-85.

She was hospitalized in February 1995 for dehydration and weakness due to her

chronic diarrhea, see id. at 485, and prescription medications for her

gastrointestinal disorders were renewed as recently as two months prior to the

hearing, see id . at 482.

The ALJ’s conclusion that plaintiff was not seeking medical treatment for

her dumping syndrome and related gastrointestinal disorders is not supported by

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substantial record evidence, and thus, cannot provide a proper basis to discount

plaintiff’s subjective allegations of disabling nonexertional limitations or to

conclude that plaintiff can perform a full range of sedentary work on a sustained

basis. Accordingly, we must remand this cause for further proceedings. See

Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (holding that ALJ must

closely and affirmatively link credibility findings to substantial evidence)

The judgment of the United States District Court for the Northern District of

Oklahoma is REVERSED, and the case is REMANDED with instructions to

remand the case to the Commissioner for further proceedings in accordance with

this order and judgment.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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