Dukes v. Apfel ( 1998 )


Menu:
  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 11 1998
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    RANDELL DUKES,
    Plaintiff-Appellant,
    v.                                                   No. 98-6031
    (D.C. No. 96-CV-887)
    KENNETH S. APFEL, Commissioner                       (W.D. Okla.)
    of Social Security Administration,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District
    Judge.
    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
    *
    This order and judgment is not binding precedent, except under the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.
    **
    Honorable Wesley E. Brown, Senior District Judge, United States District
    Court for the District of Kansas, sitting by designation.
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument.
    Plaintiff appeals the district court’s affirmance of the Commissioner’s
    decision denying his application for disability insurance benefits. On appeal,
    plaintiff argues that (1) the ALJ erred in determining his combined impairments
    did not meet or equal a listed impairment, and (2) the ALJ failed to recognize that
    his mental impairment affected his ability to perform his past work. We exercise
    jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
    Plaintiff alleges disability as of February 11, 1993, 1 due to chronic back
    pain, depression, right eye blindness, high blood pressure, and stomach ulcers.
    After conducting an evidentiary hearing, the administrative law judge (ALJ)
    analyzed plaintiff’s claims pursuant to the five-part sequential evaluation process.
    See 20 C.F.R. § 404.1520; Williams v. Bowen, 
    844 F.2d 748
    , 750-52 (10th Cir.
    1988). At step one, the ALJ found that plaintiff had not engaged in substantial
    gainful activity since his alleged disability date. At step two, the ALJ determined
    1
    Plaintiff filed his application for benefits on June 23, 1993, alleging
    disability since March 6, 1992. The ALJ determined that because plaintiff had
    failed to appeal an earlier denial of benefits dated February 11, 1993, and no
    reason existed to reopen the earlier application, the earlier denial was res judicata
    to the issue of disability before February 11, 1993. Plaintiff does not contest this
    determination. Moreover, we lack jurisdiction to review the Commissioner’s
    refusal to reopen and his determination that the earlier denial was res judicata.
    See Brown v. Sullivan, 
    912 F.2d 1194
    , 1196 (10th Cir. 1990).
    -2-
    that plaintiff has the severe impairments of degenerative disease of the lumbar
    spine and lumbar disk herniation. The ALJ determined at step three that plaintiff
    does not have an impairment or combination of impairments meeting or equaling
    any listed impairment. See 20 C.F.R. pt. 404, subpt. P, app. 1. The ALJ
    concluded at step four that subject to plaintiff’s residual functional capacity
    limitations of inability to engage in the exertional demands of medium, heavy,
    and very heavy work, right eye blindness, and ability to stoop only occasionally,
    plaintiff could perform his past relevant work as a cashier and, therefore, was not
    disabled. When the Appeals Council denied plaintiff’s request for review, the
    ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R.
    § 404.981.
    “We review the [Commissioner’s] decision to determine whether it is
    supported by substantial evidence and whether the [Commissioner] applied the
    correct legal standards.” Washington v. Shalala, 
    37 F.3d 1437
    , 1439 (10th Cir.
    1994). Substantial evidence is “‘such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.’” Richardson v. Perales,
    
    402 U.S. 389
    , 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 
    305 U.S. 197
    , 229 (1938)).
    Plaintiff first argues that the Commissioner erred at step three in failing to
    consider his combined impairments when determining whether his impairments
    -3-
    met or equaled the listing for affective disorders. See 20 C.F.R. pt. 404, subpt. P,
    app. 1, § 12.04. Plaintiff believes that his mental impairment either alone or in
    combination with his other impairments meets or equals listing § 12.04, and,
    therefore, he is presumptively disabled.
    The ALJ determined that plaintiff’s mental impairment was not severe. In
    reaching this decision, the ALJ, as is required, see 20 C.F.R. § 404.1520a,
    completed a Psychiatric Review Technique (PRT) form, which tracks the
    requirements of the relevant listing, see 20 C.F.R. pt. 404, subpt. P, app. 1,
    § 12.04A, B (requiring both A and B criteria to be met before claimant is
    presumed disabled under listing). On the form, the ALJ indicated that plaintiff
    had depression, but his depression did not restrict his activities of daily living,
    caused only slight difficulty in maintaining social functioning, seldom resulted in
    deficiencies in concentration, persistence or pace resulting in failure to complete
    tasks in a timely manner, and never caused episodes of deterioration or
    decompensation in work or work-like settings. See Appellant’s App. at
    12 010-12. Thus, the ALJ found that plaintiff’s mental impairment did not meet
    the required level of severity in any of the areas measured by listing § 12.04B.
    Plaintiff argues that contrary to the ALJ’s PRT findings, the medical
    evidence of Dr. Dougherty and Dr. Krueger, both consulting doctors, proves that
    he meets listing § 12.04. Dr. Dougherty, who is board certified in internal
    -4-
    medicine and pulmonary disease, reported in the history section of his consulting
    report dated February 2, 1993, that plaintiff had been depressed for six months,
    cried frequently, slept poorly, had urinary frequency and anxiety, and had not
    contemplated suicide. See Appellant’s App. at 45 001. Dr. Dougherty found
    during the neurological portion of the physical examination that plaintiff’s
    memory and behavior were normal. See 
    id. at 45
    002. Dr. Dougherty noted,
    however, that plaintiff had not had a psychiatric evaluation. See 
    id. at 45
    001.
    Dr. Krueger performed a psychiatric evaluation on April 11, 1995. In the
    narrative portion of his report, Dr. Krueger indicated that plaintiff had no past
    psychiatric history; his facial expression was normal, even though he looked
    somewhat depressed; his mood was depressed; his speech and flow of thought
    were normal; he was generally cooperative, but too distracted or depressed to
    cooperate with memory testing; he could handle small calculations; his motor
    activity was somewhat slowed; he currently had no suicidal ideation; he heard
    voices; and his judgment was somewhat impaired. See 
    id. at 59
    001-03.
    Dr. Krueger concluded that plaintiff’s ability to reason and make occupational,
    personal, and social adjustments was “fair” and that his psychiatric prognosis
    was “fair.” See 
    id. at 59
    002-03. It was Dr. Krueger’s impression that plaintiff
    suffers from “Depression NOS possibly with psychotic features.” See 
    id. at 59
    003.
    -5-
    In addition to preparing the narrative, Dr. Krueger also filled out a Medical
    Assessment of Ability to Do Work-Related Activities (Mental) form. 2 With
    regard to making occupational, personal, and social adjustments, Dr. Krueger
    checked blocks indicating that plaintiff had a “good” ability to follow work rules,
    relate to coworkers, deal with the public, use judgment, interact with supervisors,
    deal with work stresses, function independently, maintain concentration and
    attention, maintain personal appearance, behave in an emotionally stable manner,
    relate predictably in social situations, and demonstrate reliability. See 
    id. at 59
    004-05. Dr. Krueger also checked blocks indicating that plaintiff had a “good”
    ability to understand, remember, and carry out simple and detailed job
    instructions, but only a “fair” ability with respect to complex instructions. See 
    id. at 59
    005. The form specifically defined a “good” ability as a limited but
    satisfactory ability; whereas, it defined “fair” ability as seriously limited but not
    precluded. See 
    id. at 59
    004.
    2
    This court has recognized that this form hampers this court’s and the ALJ’s
    review, because it does not match the requirements of § 12.04B and the PRT
    form. See Cruse v. United States Dep’t of Health & Human Servs., 
    49 F.3d 614
    ,
    618, 619 n.3 (10th Cir. 1995); Hargis v. Sullivan, 
    945 F.2d 1482
    , 1488 (10th Cir.
    1991).
    -6-
    Dr. Krueger’s narrative and the form appear inconsistent. 3 Plaintiff argues
    that the narrative assessment, that his ability to make occupational, personal, and
    social adjustments was “fair,” should control, and, therefore, under the narrative
    he meets the requirements of listing § 12.04B. See Cruse v. United States Dep’t
    of Health & Human Servs., 
    49 F.3d 614
    , 618 (10th Cir. 1995) (defining “fair” as
    “essentially the same as the listing requirement’s definition of the term ‘marked,’”
    which is the degree of disability satisfying two of four listing requirements).
    Furthermore, he submits that the ALJ’s failure to expressly consider Dr.
    Krueger’s statements that his prognosis was “fair” and that he has only “fair”
    ability to make occupational, personal, and social adjustments is reversible error.
    We disagree.
    To the extent the narrative appeared to be different from the form, the ALJ
    looked at both and gave credence to the form. Giving credence to the form was
    reasonable in light of the other statements in the narrative, as well as plaintiff’s
    testimony that he never sought the treatment for depression to which he had been
    referred because he believed he could deal with his depression on his own, see
    Appellant’s App. at 16 021.
    3
    Although we cannot be certain, it is reasonable to assume Dr. Krueger did
    not define “fair” in his narrative in the technical way that it is defined on the
    form.
    -7-
    Plaintiff also argues that the ALJ failed to consider his combined physical
    and mental impairments in deciding that his impairments did not equal listing
    § 12.04. The ALJ merely listed the back impairments he found severe at step two
    and stated that he considered the combined effect of plaintiff’s alleged
    impairments at step three. Although the ALJ did not, but should have, made
    detailed findings at steps two and three, see Clifton v. Chater, 
    79 F.3d 1007
    , 1009
    (10th Cir. 1996); Kepler v. Chater, 
    68 F.3d 387
    , 391 (10th Cir. 1995), he did
    evaluate all of the evidence and make specific findings relating to steps two and
    three at step four, see Hinkle v. Apfel, 
    132 F.3d 1349
    , 1352 (10th Cir. 1997)
    (“step four requires a more detailed analysis of the claimant’s impairments than is
    required at step two”). The record supports the ALJ’s findings at step four, as
    well as his conclusions at steps two and three. Accordingly, we conclude
    substantial evidence supports the ALJ’s conclusion that plaintiff’s mental
    impairment, either alone or in combination with his other impairments, does not
    meet or equal the requirements for presumptive disability under listing § 12.04.
    Also, we conclude the ALJ correctly determined at step two that plaintiff does not
    suffer from a severe mental impairment.
    If we disagree with his step three argument, plaintiff argues that the ALJ
    erred at step four in failing to recognize the impact his mental impairment has on
    -8-
    his ability to perform his past work. Plaintiff believes that his combined physical
    and mental impairments preclude him from performing his past work.
    Contrary to plaintiff’s argument, the ALJ considered plaintiff’s mental
    impairment, along with any alleged physical impairments, at step four. Plaintiff,
    however, failed to prove that his impairments precluded him from performing his
    past relevant work as a cashier. See Henrie v. United States Dep’t of Health &
    Human Servs., 
    13 F.3d 359
    , 360 (10th Cir. 1993) (recognizing claimant has
    burden of proof at step four). Accordingly, we conclude substantial evidence
    supports the ALJ’s determination that plaintiff can perform his past relevant work
    as a cashier.
    The judgment of the United States District Court for the Western District of
    Oklahoma is AFFIRMED.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
    -9-