Flores v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 13 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

KIMBERLY J. FLORES,

Plaintiff-Appellant,

v. No. 99-2369
(D.C. No. CIV-98-1024-LH)
KENNETH S. APFEL, Commissioner, (D. N.M.)
Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and HENRY , 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This order and judgment is not binding precedent, except under the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.
 Claimant Kimberly Flores appeals the denial of her claims for disability and

supplemental security income (SSI) benefits. We exercise jurisdiction under 42

U.S.C. § 405(g) and 28 U.S.C. § 1291, and reverse.

Claimant filed applications for benefits in October 1994, claiming she had

been unable to work since October 1, 1991, due to asthma and depression. Her

requests for benefits were denied initially and upon reconsideration. She then

received a hearing before an administrative law judge (ALJ), at which she and

a vocational expert (VE) testified.

The ALJ denied claimant’s applications at step four of the evaluation

sequence. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.

1988). He concluded that claimant had severe impairments consisting of

depression, stress, asthma, and dependent personality disorder. See Appellant’s

App., Vol. II at 13, 18. He further determined, however, that she did not have

a listed impairment or combination of listed impairments, and that she retained

the residual functional capacity (RFC) to perform work-related activities except

for work involving lifting more than twenty-five pounds, walking more than ten

minutes at a time, sitting more than six hours, and standing more than six hours in

an eight-hour day. See id. at 18. The ALJ found claimant’s subjective complaints

to be credible only to the extent that she is limited to the full range of light work.

Based on the opinion of a consulting psychiatrist that claimant could do simple

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jobs consisting of one or two-step repetitive tasks, the ALJ further found that

claimant’s mental impairments limit her to simple work activities. Finally,

relying on the opinion of the VE, the ALJ determined that the requirements of

claimant’s past relevant work as a telemarketer, a data entry operator, and a bank

clerk were not precluded by these limitations. He therefore concluded that

claimant was not disabled. The Appeals Council denied review, making the

ALJ’s decision the final agency decision.

The district court adopted the report and recommendation of the magistrate

judge and affirmed the Commissioner’s decision. We review the ALJ’s decision

to determine whether his factual findings are supported by substantial evidence

and whether he correctly applied the relevant legal standards. See Castellano v.

Secretary of Health & Human Servs , 26 F.3d 1027, 1028 (10th Cir. 1994).

Claimant argues that the ALJ failed to perform the analysis required at the

step-four determination and that his credibility finding is contrary to the evidence

and the law. Step four of the sequential analysis is comprised of three phases.

“In the first phase, the ALJ must evaluate a claimant’s physical and mental

[RFC], . . . and in the second phase, he must determine the physical and mental

demands of the claimant’s past relevant work.” Winfrey v. Chater , 92 F.3d 1017,

1023 (10th Cir. 1996) (citing Soc. Sec. R. 86-8, Soc. Sec. Rep. Serv., Rulings

1983-1991, 423, 427 (1992) and 20 C.F.R. § 404.1520(e)). “In the final phase,

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the ALJ determines whether the claimant has the ability to meet the job demands

found in phase two despite the mental and/or physical limitations found in phase

one.” Id. (citing Soc. Sec. R. 82-62, Soc. Sec. Rep. Serv., Rulings 1975-1982,

809). The burden of proving disability remains with the claimant at step four;

however, the ALJ does have a duty “of inquiry and factual development.”

Henrie v. United States Dep’t of Health & Human Servs , 13 F.3d 359, 361

(10th Cir. 1993).

In the first part of her step-four argument, claimant contends the ALJ erred

in concluding that claimant had the RFC to engage in the full range of light work.

With regard to claimant’s physical RFC, we find that substantial evidence

supports the ALJ’s conclusion that claimant’s physical impairments, caused

presumably by her asthma, do not preclude the full range of light work. Claimant

is able to cook, clean, do her shopping, and care for her children. See Appellant’s

App., Vol. II at 107; 353-55. Claimant does not allege disabling pain. Her

asthma is basically stable, see id. at 260, 269-70, 307-08, 317, and inhalers and

nebulizers help control claimant’s occasional asthmatic episodes. See id. at 260,

263, 296. There is no objective medical evidence in the record to support a

conclusion that claimant is physically unable to do light work.

The ALJ’s conclusion regarding claimant’s mental RFC, however, is not so

well supported. The ALJ’s basic conclusion regarding claimant’s mental RFC is

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that “[h]er depression and personality disorder limit her to simple tasks.”

Appellant’s App., Vol. II at 17. Our review of the record convinces us that

several aspects of claimant’s mental condition were overlooked by the ALJ and

need to be factored into the matrix.

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

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

886 F.2d 289, 291 (10th Cir. 1989). “[I]n addition to discussing the evidence

supporting his decision, the ALJ also 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, 1010 (10th Cir. 1996). While we acknowledge

that an ALJ need not discuss every item of evidence, see id. at 1009-10, he may

not rely solely on portions of the record that support his decision and ignore

evidence favorable to a claimant, see Switzer v. Heckler , 742 F.2d 382, 385-86

(7th Cir. 1984).

Dr. Carol Jones, M.D., examining claimant on behalf of the Commissioner,

found claimant to be plagued by “[d]isturbance of mood, accompanied by a full

or partial manic or depressive syndrome,” as evidenced by the presence of

“dysthymic disorder.” Id. at 50. Dr. Jones further noted that claimant’s

personality disorder caused “either significant impairment in social or

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occupational functioning or subjective distress,” as evidenced by claimant’s

“[p]athological dependence.” Id. at 52. The ALJ’s decision does not refer to this

evidence.

Dr. Carlos Balcazar, a consultative psychiatrist, agreed that claimant has

dysthymic disorder and atypical personality disorder with passive and dependent

traits. See id. at 285. Dr. Balcazar stated that “[t]he optimal functioning during

the course of the last year has been poor.” Id. 1 The Commissioner does not

dispute claimant’s characterization of this rating to mean a “marked impairment

in either social relations or occupational functioning, or moderate impairment in

both.” Appellant’s Opening Br. at 22 (quotation omitted). There is no

discussion of this evidence in the ALJ’s decision.

In addition to the evidence from Dr. Balcazar and Dr. Jones, claimant’s

treating physician, Dr. H. J. Sobel, diagnosed claimant with recurrent major

depression and assigned her a rating of fifty-five on the Global Assessment of

Functioning Scale (GAF). See Appellant’s App., Vol. II at 326. 2
A GAF rating

1
Dr. Balcazar’s report is dated April 28, 1995. The relevant time period for
claimant’s disability claim is October 1, 1991 through December 31, 1991, the
date she was last insured for disability benefits. The relevant time period for the
SSI claim is from the date the application was filed, October 19, 1994, through
the date of the ALJ’s decision, October 18, 1996. Dr. Balcazar’s evidence,
therefore, is relevant only to claimant’s SSI application.
2
The Global Assessment of Functioning, or GAF, scale is used by clinicians
to report an individual’s overall level of functioning. See American Psychiatric
(continued...)

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between fifty-one and sixty indicates “[m]oderate symptoms (e.g., flat affect and

circumstantial speech, occasional panic attacks) OR moderate difficulty in social,

occupational, or school functioning (e.g., few friends, conflict with peers or co-

workers).” American Psychiatric Assoc., Diagnostic and Statistical Manual of

Mental Disorders 34 (4th ed. 1994) (DSM-IV). The ALJ did not discuss this

evidence or provide a reason to disregard the opinion of a treating physician.

See Frey v. Bowen , 816 F.2d 508, 513 (10th Cir. 1987).

At the administrative hearing, claimant testified that she had worked as

a substitute aide for the Association for Retarded Citizens, see Appellant’s App.,

Vol. II at 342, as a data entry operator, see id. at 344, and as a bank bookkeeper,

see id. at 375. While the ALJ did question claimant about some of her past jobs,

he did so mostly in an effort to establish her rate of pay and reasons for leaving.

See id. at 342-45. As mentioned above, the ALJ concluded that claimant could

return to her past relevant work as telemarketer, data entry operator, and bank

clerk. The ALJ erred in making this determination, however, because he did not

make specific findings regarding the demands of claimant’s past work and

improperly relied on expert vocational testimony as the sole basis for his

2
(...continued)
Assoc., Diagnostic and Statistical Manual of Mental Disorders 30 (4th ed. 1994).
The scale does not evaluate impairments caused by physical or environmental
factors. See id.

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conclusion that claimant’s impairments did not preclude the performance of her

past relevant work. See Winfrey, 92 F.3d at 1024-25 (requiring fact findings

regarding past work and discouraging practice of delegating fact-finding

responsibility to vocational expert). The evidence accepted by the ALJ is that

claimant can do only simple work consisting of one or two-step tasks. Because

there are no specific findings regarding the requirements of claimant’s past

relevant work, however, we cannot say that substantial evidence establishes that

such work is of a sufficiently simple nature to enable her to return to it.

While the ALJ need only consider work demands which have a bearing on

claimant’s medically established limitations, see id. at 1024, there is sufficient

medical evidence of mental impairment in this record to trigger this duty.

Claimant testified that her depression makes it difficult to be around people,

see Appellant’s App., Vol. II at 346, and that it occasionally prevented her from

leaving her house for an entire day, see id. at 372. She reported that she left her

job as an aide for the Association of Retarded Citizens because of her depression.

See id. at 344. Where, as here, the claimant suffers from a severe mental

impairment that does not meet the listings, the consideration of the mental RFC

must include an assessment of the ability “to interact appropriately with the

public, supervisors, and co-workers.” See Washington v. Shalala, , 37 F.3d 1437,

1440 (10th Cir. 1994) (discussing 20 C.F.R. pt 404, subpt. P., App 1, § 12.00(c)).

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 The Commissioner argues that the vocational summary completed by

claimant and the VE’s summary regarding the skill levels of claimant’s past

relevant work should suffice to satisfy the Winfrey phase-two requirement.

We disagree. Claimant’s summary is directed chiefly at the mechanical

requirements of her past jobs and briefly describes the parameters of her duties.

See Appellant’s App., Vol. II at 84-88. No information is provided regarding the

mental or emotional requirements of those positions. Similarly, the VE’s

summary omits any information about the mental demands of claimant’s past

relevant work. See id. at 331.

Additionally, the VE summary described all of claimant’s past jobs as semi-

skilled. See Appellant’s App., Vol. II at 331. The ALJ, however, found that

“claimant’s mental impairments limit her to simple work activities.” Id. at 18.

There is no explanation for this discrepancy in the ALJ’s decision.

Soc. Sec. R. 82-62 requires that, in cases involving a mental and/or

emotional impairment, clear factual evidence must be developed regarding the

mental demands of a claimant’s past relevant work:

care must be taken to obtain a precise description of the particular
job duties which are likely to produce tension and anxiety, e.g.,
speed, precision, complexity of tasks, independent judgments,
working with other people, etc., in order to determine if the
claimant’s mental impairment is compatible with the performance of
such work.

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SSR 82-62, Soc. Sec. Rep. Serv., Rulings 1975-1982, at 812. The Commissioner

argues that, without evidence in the record that claimant suffered from tension

and anxiety, there was no need for the ALJ to obtain the precise description of

claimant’s prior job duties. This argument ignores the Agency’s own requirement

that the rationale for a step-four conclusion finding a claimant capable of

returning to past relevant work must be clearly linked to specific evidence in the

record: “The rationale [for a decision that a claimant can return to past work]

must follow an orderly pattern and show clearly how specific evidence leads to

a conclusion.” Id.

Because the ALJ failed to make any findings regarding the mental

requirements of claimant’s past relevant work, it is impossible to connect the

ALJ’s rationale to evidence in the record. The ALJ also failed to consider

uncontradicted evidence of mental impairment. His decision, therefore, is not

supported by substantial evidence and must be reversed. Upon remand, the ALJ

will need to develop the evidence regarding claimant’s past relevant work and

will also need to revisit his credibility determination in light of all the evidence in

the record regarding claimant’s mental impairment.

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

Mexico is REVERSED, and this case is REMANDED to the district court with

directions to REMAND to the Commissioner for further proceedings in

conformance with this order and judgment.

Entered for the Court

Robert H. Henry
Circuit Judge

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