Bingham v. Apfel ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LYNDA J. BINGHAM,
Plaintiff-Appellant,
v. No. 99-4221
(D.C. No. 98-CV-94)
KENNETH S. APFEL, in his capacity (D. Utah)
as Commissioner of the Social
Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, PORFILIO, 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(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This order and judgment is not binding precedent, except under the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 Lynda J. Bingham appeals from the denial of social security
disability and supplemental security income benefits. We have jurisdiction under
28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the agency’s decision on
the whole record to determine only whether the factual findings are supported by
substantial evidence and the correct legal standards were applied. See Goatcher
v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir.
1995). We reverse and remand for additional proceedings.
Claimant was born in 1964 and is thirty-six years old now. She alleged a
disability due to mental impairments, obesity, and other physical impairments.
The ALJ denied benefits at step five of the evaluation sequence. See Williams v.
Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing steps in detail).
Claimant argues on appeal that the ALJ: (1) did not properly evaluate her mental
impairments at step three; (2) erred in his assessment of her credibility; and
(3) did not support with substantial evidence his finding at step five that she
could perform work other than her past work.
Claimant has medical documentation of her mental impairments. See
Appellant’s App. at 159-66. The ALJ expressly accepted this evidence as “being
based on objective signs and laboratory testing.” Id. at 16. It shows that
claimant’s mental aptitude equals that of an eight-year-old to an eleven-year-old
child, depending on what skill was being measured. See id. at 162. She also has
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numerous other mental problems, such as extreme impulsivity, severe problems
getting along with supervisors and coworkers, inability to control her anger,
defensiveness, insecurity, et al. See id. at 164. The psychologist had a “guarded”
opinion that she would be employable if she received vocational rehabilitation
and individual psychotherapy, considering her mental impairments and obesity.
Id. at 165.
The ALJ made two legal errors with respect to this evidence at step three.
First, in contravention of Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir.
1996), the ALJ did not specify which listings he reviewed at step three or discuss
the evidence he accepted or rejected with respect to the requirements of those
specific listings. Rather, as in Clifton , the ALJ simply stated that claimant did
not meet the criteria of any listing. See Appellant’s App. at 13. As this court
stated in Clifton , “[s]uch a bare conclusion is beyond meaningful judicial
review.” 79 F.3d at 1009.
Second, the ALJ failed to follow the specific analysis for mental
impairments required by the agency’s regulations, as stated in Cruse v. United
States Dep’t of Health & Human Serv. , 49 F.3d 614, 617 (10th Cir. 1995). Even
though the ALJ completed a Psychiatric Review Technique Form (PRTF) and
attached it to his decision, that is not enough. Rather, the ALJ was obligated to
discuss in his decision the evidence as it related to his conclusions on the PRTF.
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“[I]f the ALJ prepares the form himself [instead of having a psychiatrist or
psychologist do it], he must ‘discuss in his opinion the evidence he considered in
reaching the conclusions expressed on the form.’” Id. at 617-18 (quoting
Washington v. Shalala , 37 F.3d 1437, 1442 (10th Cir. 1994)). The ALJ did not
discuss the evidence of mental impairments, except in the most cursory fashion.
The only specific statement the ALJ made about this evidence, other
than accepting it as well-supported, was that he did not accept the psychologist’s
assessment of claimant’s vocational limitations because of claimant’s work
evaluations in Exhibit 3D. See Appellant’s App. at 16, 48-61. The ALJ’s
statement implies that her work evaluations were acceptable. However, the first
page of Exhibit 3D shows that the evaluator would not have hired claimant if he
had the decision to make that day. See id. at 48. The evaluator marked her
performance as unacceptable on numerous items, including requiring excessive
supervisory support, inability to complete work without prodding, poor quality
work, inability to control herself and cope with annoyances at work, failure to
punch in and out of work, inability to work as fast as coworkers, failure to show
up at work each day, poor quantity of work output, lack of stamina displayed at
work, and a poor attitude towards work and herself. See id. The whole of
Exhibit 3D is a warning that claimant could be fired for poor performance. See
id. at 48-61. It states that claimant had a limited amount of time to bring her
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performance up to par or she would be reassigned or discharged. See id. at 51,
54, 55. This evidence thus contradicts the ALJ’s implied finding that claimant
received acceptable evaluations at work, and does not provide a valid reason to
reject the psychologist’s assessment of claimant’s vocational limitations.
Clifton and Cruse teach that the evidence must be analyzed by the ALJ in
the first instance at step three. It is unnecessary to address claimant’s other
arguments.
The judgment of the United States District Court for the District of Utah is
REVERSED and the case is REMANDED for additional proceedings.
Entered for the Court
Wade Brorby
Circuit Judge
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