James R. Linehan,
Midwest City, OK, for plaintiff-appellant.
Vicki
Miles-LaGrange, U.S. Atty., Gayla Fuller, Chief Counsel, and Rodney A. Johnson,
Asst. Regional Counsel, Office of the Gen. Counsel, U.S. Dept. of Health & Human
Services, Dallas, TX, for defendant-appellee.
Before
MOORE, BARRETT, and EBEL, Circuit Judges.
BARRETT,
Senior Circuit Judge.
Alice Cruse
appeals from the district court's order affirming the denial of her application
for social security disability benefits by the Secretary of Health and Human
Services. The Secretary determined that despite Ms. Cruse's physical and mental
impairments, she could perform certain light-work, low-stress jobs and
therefore was not disabled. Ms. Cruse contends that the Secretary
Page 616
failed to properly consider her mental impairments. We agree
and reverse. 1
Ms. Cruse
applied for disability benefits as of October 1989, at which time she was
thirty-two years old. She had previously been employed as a spot welder and
assembly line worker. She claimed she was disabled as a result of carpal tunnel
syndrome, back problems, and mental problems. At the time of her hearing before
the administrative law judge (ALJ), she had had six surgeries on her wrists and
arms related to carpal tunnel syndrome, and more were scheduled. She also had
chronic back syndrome and three bulging disks in her lower back that were being
treated conservatively. She complained of pain in her back, hands, wrists,
legs, knees, and feet.
Though Ms.
Cruse's physical impairments are severe, our focus is on her mental
impairments. In February 1990, she attempted suicide. In May 1990, the
physician treating her carpal tunnel syndrome noted that she was feeling a
great deal of depression, and he recommended she be evaluated and treated for
depression. In March 1991, a physician consulting for the Secretary concluded
that she was suffering from major depression and strongly encouraged urgent
treatment. Between March and August 1991, three other physicians concluded that
she was depressed, one of whom concluded that she suffered from major
depression and considered her totally disabled.
In August
1991, on referral from the Secretary, she was examined by Elizabeth Rasmussen,
Ph.D., a psychologist, and Marcus Barker, M.D., a psychiatrist. Dr. Rasmussen
assessed Ms. Cruse as follows:
She has reported a recent history of being extremely
depressed with reported suicide ideation, currently reports being fairly
depressed and suicidal. The current assessment further indicates that she has
borderline intellectual skills and while she is not organic, I suspect she has
marginal resources cognitively to cope with all that is going on with her. I
would further hypothesize she has not truly accepted the fact that she does
have some limitations in terms of her skills and abilities. She does have
cognitive and reasoning skills. She does have decision making abilities. It is
thought she is capable of managing money benefits in her own best interest.
Appellant's
App. at 391. Dr. Barker's impression on examining Ms. Cruse was that "this
is a major depression. She was tearful throughout a great deal of the session.
I also think that she is potentially suicidal." Id. at 397.
The ALJ
concluded that while Ms. Cruse's physical and mental impairments were severe,
the impairments neither alone nor in combination met the Listing of Impairments
found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The impairments did, however,
prevent her from performing her past relevant work, thus shifting the burden to
the Secretary at the final stage of the five-step sequential analysis to show
that there were jobs available that she could perform. See Williams v. Bowen,
844 F.2d 748, 750-52 (10th Cir.1988) (describing the five-step analysis). The
ALJ concluded that she had the "intellectual capacity to perform unskilled
work and a wide range of semiskilled work." Appellant's App. at 26. He
also concluded she could do the full range of light work reduced only by her
inability to deal with unusually stressful situations. Based on her age,
education, work experience, and capacity for light work, the ALJ found that the
Medical-Vocational Guidelines (Grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2,
Rules 202.18 and 19, would direct a finding of not disabled. Considering the
limitation on her ability to do light work, and the testimony of a vocational
expert, the ALJ found that there were a significant number of jobs she could
perform, such as gate tender, order caller, folder, and masker. He therefore
concluded that she was not disabled and not entitled to disability benefits.
We review
the Secretary's decision to deny benefits to determine whether it is supported
by substantial evidence and
Page 617
whether she applied the correct legal standards. Washington
v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). We closely examine the record
as a whole to determine whether substantial evidence supports the Secretary's
decision, and we fully consider the evidence that detracts from her decision.
Id. Incorrect application or insufficient evidence of correct application of
governing legal standards is grounds for reversal. Id.
Ms. Cruse
raises two issues on appeal. First, she contends that the Secretary failed to
properly consider her mental impairment when determining whether she met the
listing requirements for affective disorders, 20 C.F.R. Pt. 404, Subpt. P, App.
1, Sec. 12.04. Second, she contends that even if she does not meet the listing
requirements, the Secretary failed to recognize the effect of her mental
impairment on her ability to perform light work.
When there
is evidence of a mental impairment that allegedly prevents a claimant from
working, the Secretary must follow the procedure for evaluating mental
impairments set forth in 20 C.F.R. Sec. 404.1520a and the Listing of
Impairments and document the procedure accordingly. Andrade v. Secretary of
Health & Human Servs., 985 F.2d 1045, 1048 (10th Cir.1993). This procedure
first requires the Secretary to determine the presence or absence of
"certain medical findings which have been found especially relevant to the
ability to work," sometimes referred to as the "Part A"
criteria. 20 C.F.R. Sec. 404.1520a(b)(2). The Secretary must then evaluate the
degree of functional loss resulting from the impairment, using the "Part
B" criteria. Sec. 404.1520a(b)(3). To record her conclusions, the
Secretary then prepares a standard document called a Psychiatric Review
Technique Form (PRT form) that tracks the listing requirements and evaluates
the claimant under the Part A and B criteria. See Woody v. Secretary of Health
& Human Servs., 859 F.2d 1156, 1159 (3d Cir.1988); 20 C.F.R. Sec.
404.1520a(d). At the ALJ hearing level, the regulations allow the ALJ to complete
the PRT form with or without the assistance of a medical advisor and require
the ALJ to attach the form to his or her written decision. Id. In this case,
the ALJ completed the PRT form himself without assistance from a medical
advisor. Appellant's App. at 28-31.
As
applicable to analysis of affective disorders under Sec. 12.04, the Part A
criteria ask whether there is evidence of an affective disorder. The ALJ
concluded that there was, noting that Ms. Cruse's depression was characterized
by anhedonia or pervasive loss of interest in almost all activities, appetite
disturbance with change in weight, decreased energy, and thoughts of suicide.
The record contains substantial (if not overwhelming) evidence to support this
aspect of the ALJ's conclusion.
To meet the
listing requirements under the Part B criteria regarding the severity of the
impairment, the condition or impairment must 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. Frequent deficiencies of concentration, persistence or
pace resulting in frequent failure to complete tasks in a timely manner (in
work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in
work or work-like settings which cause the individual to withdraw from that
situation (decompensation) or to experience exacerbation of signs and symptoms
(which may include deterioration of adaptive behaviors).
20 C.F.R.
Sec. 404.1520a(b)(3); id. Pt. 404, Subpt. P, App. 1, Sec. 12.04 B. The ALJ
concluded that Ms. Cruse had only "moderate" restrictions on her
activities of daily living and "moderate" difficulties in maintaining
social functioning, "seldom" had deficiencies of concentration,
persistence or pace, and "never" had episodes of deterioration or
decompensation. Appellant's App. at 30-31.
We see
several problems with the ALJ's analysis. Obviously, the record must contain
substantial competent evidence to support the conclusions recorded on the PRT
form. Washington, 37 F.3d at 1442. Moreover, if the ALJ prepares the form
himself, he must
Page 618
"discuss in his opinion the evidence he considered in
reaching the conclusions expressed on the form." Id. (quotation omitted).
The ALJ failed to do that. In his written opinion, the ALJ repeated the
conclusions indicated on the PRT form, but only generally discussed the
evidence of Ms. Cruse's mental impairment. He did not relate that evidence to
his conclusions. More importantly, we have serious doubts whether there is
substantial evidence to support his conclusion.
Though the
Secretary referred Ms. Cruse to Drs. Rasmussen and Barker and could have
requested them to evaluate her based on the listing requirements and complete
PRT forms, they instead completed forms called "Medical Assessment of
Ability To Do Work-Related Activities (Mental)." And as we have pointed
out before, "[u]nfortunately for purposes of our review, ... the forms Dr.
Rasmussen and Dr. Barker filled out in [claimant's] behalf do not match the
four requirements of section 12.04 B" and the PRT form. Hargis v.
Sullivan, 945 F.2d 1482, 1488 (10th Cir.1991). Not only do these forms hamper
our review, but they hamper an ALJ's review as well.
The mental
assessment forms are designed "[t]o determine this individual's ability to
do work-related activities on a day-to-day basis in a regular work
setting." Appellant's App. at 393, 398. Instead of seeking data directly
tied to the severity of the impairment under Part B of the listing
requirements, the mental assessment forms ask for evaluations of a claimant's
abilities in three work-related areas: making occupational adjustments, making
performance adjustments, and making personal-social adjustments. Then, rather
than evaluating the severity of a claimant's functional impairments using the
same terms as the listing requirements, the mental assessment forms evaluate
the claimant's abilities as "unlimited/very good," "good,"
"fair," and "poor or none." Moreover, the forms' definition
of "fair" is misleading. Though describing a functional ability as
"fair" would imply no disabling impairment, "fair" is
defined to mean: "Ability to function in this area is seriously limited
but not precluded." Id. We conclude that "seriously limited but not
precluded" is essentially the same as the listing requirements' definition
of the term "marked:"
Where "marked" is used as a standard for measuring
the degree of limitation, it means more than moderate, but less than extreme. A
marked limitation may arise when several activities or functions are impaired
or even where only one is impaired, so long as the degree of limitation is such
as to seriously interfere with the ability to function independently,
appropriately and effectively.
Sec. 12.00
C. A "marked" impairment represents a degree of disability that
satisfies two of the four listing requirements. Id.
The ALJ
misinterpreted Drs. Rasmussen's and Barker's evaluations of Ms. Cruse's
abilities to the extent they described those abilities as "fair." In
his written decision, he stated that "[t]he claimant's ability to perform
work related activities from a mental stand point were rated 'good' or 'fair'
in all categories." Appellant's App. at 21. 2 The ALJ apparently
considered "fair" as being evidence of ability. As that term is
defined on the medical assessment form, we hold it is evidence of disability.
Looking at
Drs. Rasmussen's and Barker's assessments in that light, there appears to be
evidence that Ms. Cruse meets the listing requirements. For example,
deficiencies in concentration, persistence and pace "refer to the ability
to sustain focused attention sufficiently long to permit the timely completion
of tasks commonly found in work settings." Sec. 12.00 C. Both Drs.
Rasmussen and Barker found Ms. Cruse to have seriously limited
("fair") abilities to deal with work stresses, function
independently, maintain attention/concentration, demonstrate reliability and
understand anything more than simple job instructions. Similarly, deterioration
or decompensation "refers to repeated failure to adapt to stressful
circumstances which cause the individual either to withdraw from that
Page 619
situation or to experience exacerbation of signs and
symptoms (i.e., decompensation) with an accompanying difficulty in maintaining
activities of daily living, social relationships, and/or maintaining
concentration, persistence, or pace (i.e., deterioration ...)." Id. Drs.
Rasmussen and Barker agreed that Ms. Cruse's abilities to behave in an
emotionally stable manner, relate predictably in social situations, and
generally deal with work stresses were seriously limited. 3
We thus
agree with Ms. Cruse that the Secretary improperly considered the evidence at
step three. We also agree that this error tainted the step-five analysis. At
step five, the ALJ concluded that she could perform a full range of light work
as long as that work was not performed in "unusually stressful
situations." Appellant's App. at 26. 4
Clearly
there is evidence of a severe mental impairment, which is a nonexertional
impairment. See Hargis, 945 F.2d at 1491. When the listing requirements for
mental disorders are not met, but the impairment is nonetheless severe,
"[t]he determination of mental [residual functional capacity] is crucial
to evaluation of an individual's capacity to engage in substantial gainful work
activity." Sec. 12.00 A. And when, as here, both exertional and
nonexertional impairments diminish a claimant's residual functional capacity,
"the Secretary must produce expert vocational testimony or other similar
evidence to establish the existence of jobs in the national economy."
Hargis, 945 F.2d at 1491.
The ALJ did
solicit testimony from a vocational expert concerning Ms. Cruse's ability to
perform certain jobs. However, his questioning related only to various
exertional impairments; he did not question the vocational expert concerning
the effect her mental impairments would have on her ability to perform these jobs.
5 The ALJ's "failure to recognize any mental impairment affecting the
claimant's ability to perform ... work is, in our estimation, not supported by
substantial evidence or correct legal standards." Id. at 1492. Thus, the
step-five determination of no disability is also error.
Because of
the errors at steps three and five, we REVERSE the district court's order and
REMAND the case to the Secretary for further consideration of Ms. Cruse's
mental impairment.
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1 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) and 10th Cir.R.
34.1.9. The case is therefore ordered submitted without oral argument.
2 That statement is not entirely correct. Dr. Barker rated
Ms. Cruse's ability to carry out complex job instructions as poor/none
("No useful ability in this area." Appellant's App. at 398.). Dr.
Rasmussen rated her ability in a number of areas as on the line between fair
and poor/none. Even "good" is not as positive an evaluation as it
might imply. "Good" is defined to mean "[a]bility to function in
this area is limited but satisfactory." Id.
3 We realize that the standards for measuring the degree of
limitation for deficiencies in concentration, persistence or pace and for
episodes of deterioration and decompensation are not "marked" but are
"frequent" and "repeated" respectively. Describing an
ability as "fair" does not correlate as well with
"frequent" and "repeated" as it does with
"marked." This difficulty in correlation is one of the primary
reasons why we consider the Secretary's use of the mental assessment forms to
be "unfortunate." Nonetheless, having only "fair" abilities
in areas relevant to the assessments for deficiencies of concentration and
episodes of deterioration and decompensation clearly is evidence of severe
functional limitations.
4 Ms. Cruse does not challenge the ALJ's conclusion that she
has the exertional capacity to perform light work. She also does not challenge
the ALJ's conclusion that she could perform semi-skilled work. We note that the
district court found this conclusion to be error, but considered it harmless
because the ALJ also found she could perform unskilled work.
5 The only reference to any possible mental difficulty the
ALJ made during his questioning of the vocational expert was asking the expert
whether a gate-tending job was low stress. Ms. Cruse's attorney also asked the
expert whether her inability to deal with the public on an ongoing basis would
affect her ability to do certain jobs. The expert testified that it would not.
We do not consider the ALJ's conclusion that Ms. Cruse could only perform
"low stress" jobs to be full consideration of her mental impairment.