* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. Civ. P. 25(d)(1), the district court substituted Shirley S. Chater, Commi ssioner of Social Security, for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. In the text we continue to refer to t he Secretary because she was the appropriate party at the time of the underlying adm inistrative decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RANDY D. PRUITT,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5128 (D.C. No. CV-94-915-W) (N.D. Okla.)

ORDER AND JUDGMENT **

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Randy D. Pruitt appeals from an order of the distri ct court affirming the Secretary’s decision denying his application for Supplemental Security Income benefits (SSI). Mr. Pruitt filed for SSI on January 13, 1992. In his application, he alleged disability due to a back injury. Other problems, including abdominal pain with hernia surgery, generalized pain includin g joint pain, carpal tunnel syndrome, mental retardation, pancreatitis, and dep ression surfaced during the administrative process. Mr. Pruitt’s requests were denied initially and on reconsideration. Following a de novo hearing on Oc tober 14, 1993, an administrative law judge (ALJ) determined that he w as not disabled within the meaning of the Social Security Act. Mr. Pruitt the reafter filed a complaint in district court, and the case was assigned to a magi strate judge for final disposition by consent of the parties. See 28 U.S.C. § 636(c)(1). The magistrate judge affirmed the Secretary’s decision, and Mr. Pruitt appealed to this court. We review the Secretary’s decision to determine whe ther the factual findings are supported by substantial evidence in the record viewed as a whole and whether the correct legal standards were applie d. Andrade v. Secretary of-3-

Health & Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantia l evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Fowler v. Bowen , 876 F.2d 1451, 1453 (10th Cir. 1989)(quotation omitted). The Secretary has established a five-step evaluatio n process for determining whether a claimant is disabled within the meaning of the Social Security Act. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988)(discussing five-step disability test). When the analysis reaches step five, the Secretary bears the burden of showing that a cl aimant retains the capacity to perform other work and that such work exists in the national economy. Id. at 751. The ALJ determined that Mr. Pruitt retained the res idual functional capacity (RFC) to perform medium work, subject to c ertain exertional and non-exertional limitations. Given his RFC, the ALJ further determined that Mr. Pruitt could not return to his past relevant work. Reaching step five, however, he found that there were jobs within the national econ omy which Mr. Pruitt could perform. The ALJ applied the Medical-Vocational Gu idelines, 20 C.F.R. § 404, Subpt. P, App. 2 (the grids) as a framework, consid ered testimony from a vocational expert, and concluded that Mr. Pruitt wa s not disabled. Mr. Pruitt contends that the ALJ failed to develop the record concerning his depression, which resulted in a decision lacking insubstantial evidence. Where-4-

objective evidence of depression appears in the rec ord, the ALJ must develop the record concerning depression and its effect on the claimant’s ability to work. See Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996). The ALJ carefully questioned both Mr. Pruitt and hi s wife at the hearing concerning his depression. Mr. Pruitt testified th at he underwent counseling for depression at Grand Lake Mental Health Center (Gran d Lake) in February through July 1993. He attended counseling sessions once a week. At the time of the October hearing, Mr. Pruitt indicated that he was s till depressed, and that his depression stemmed from lack of funds and from his physical limitations. His wife testified that Mr. Pruitt was subject to explo sive outbursts, that depression led him to suicidal ideation, and that he went on ashooting spree in January or February 1993 and was placed in jail. There is objective corroboration in the record for Mr. Pruitt’s claim that he is depressed, in the form of a letter from Sandra D over, a counselor at Grand Lake. Ms. Dover indicated that Mr. Pruitt obtainedoutpatient counseling at Grand Lake. She described his condition as follows : The current diagnosis for Mr. Pruitt is Depressive Disorder Not Otherwise Specified. This means that Mr. Pruitt re ports symptoms of depression which are recurrent, but which do not me et the criteria for any specific mood disorder. In my opinion, this ap pears to be a chronic state for Mr. Pruitt. Psychosocial stresso rs such as-5-

inadequate finances and chronic pain can complicate or exacerbate the depressive symptoms. R., Vol. II at 350. The ALJ found this description of Mr. Pruitt’s depr ession, though expressed by a counselor with a bachelor’s degree, sufficiently credible that he factored the depression into his analysis all the w ay to step five. Although he did not find the depression to be so severe to meet or equal a listing, he concluded that Mr. Pruitt’s depression, along with his border line intellectual functioning and hostile and avoidant feelings, “often” results in “ Deficiencies of Concentration, Persistence or Pace Resulting in Failure to Complet e Tasks in a Timely Manner.” Id. at 32; see also id. at 23. The ALJ also found that his depression andother mental problems had only “slight” effect on his act ivities of daily living, and on his ability to maintain social functioning, and “ne ver” resulted in episodes of deterioration or decompensation in a work-like sett ing. Id. at 23-24, 32. Based on these findings, the ALJ concluded that Mr. Pruitt’s mental impairments imposed only moderate limitations in his ability to maintain attention and concentration. These findings, to the extent they evaluated the li mitations imposed by Mr. Pruitt’s depression on his mental RFC, are unsupported by any medical evidence in the record. 1 The ALJ must base his evaluation of a claimant’s mental1 The Secretary argues that since a counselor with a bachelor’s degree is not

an “acceptable source” of medical evidence, see 20 C.F.R. § 416.913(a), the ALJ had no duty to accept her diagnosis of depression o r to inquire further. We need not decide this point, since the ALJ didaccept the diagnosis of depression and concluded that depression had an effect on the clai mant’s mental RFC. Once he made that determination, it was his responsibility to ensure that the record was fully developed, with appropriate medical evidence concerning the depression. -6- impairments on “evidence from qualified mental heal th professionals.” See Bishop v. Sullivan , 900 F.2d 1259, 1263 (8th Cir. 1990). By statute, the Secretary is required to make every reasonable effo rt to ensure that a qualified psychiatrist or psychologist assesses the claimant’ s mental RFC. 42 U.S.C. § 421(h). If the ALJ completes the PRT form himsel f, the record must contain substantial, competent evidence to support his conc lusions. See Cruse v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 617-18 (10th Cir. 1995). The counselor’s one-page summary statement, which c ontains no discussion of the effect of Mr. Pruitt’s depression on his ability to work, is not substantial, competent evidence of Mr. Pruitt’s ability to work. The ALJ should have developed the record further by obtaining such evid ence. The prejudicial effect of the ALJ’s failure to deve lop the record is particularly evident in the questions he posed to the vocational expert (VE) concerning Mr. Pruitt’s depression. He asked the V E whether “moderate depression” or unspecified “depressive symptoms” co uld affect Mr. Pruitt’s ability to do other work. R. Vol. II at 93. This question does not incorporate any-7-

specific, functional restriction. The Secretary ha s recognized that the reaction of persons with mental impairments to the demands of w ork is highly individualized. See S.S.R. 85-15. A proper examination of Mr. Pruitt might have assisted the ALJ in posing a more specific hypothetical to the V E. The ALJ, in a further hypothetical, incorporated th e restrictions described by Mr. Pruitt and his wife during the hearing. The VE replied that Mr. Pruitt’s ability to do other work would depend on the degree to which his concentration had been affected. The ALJ responded by asking the VE to measure Mr. Pruitt’s ability to concentrate at work by assuming that he could not watch television for an hour. R., Vol. II at 94-95. It is unclear whatrelevance this question had to the performance of actual job duties. Specific medical evidence would have assisted the ALJ in better expressing Mr. Pruitt’s nonexerti onal capacity in terms of workrelated functions. See S.S.R. 96-8p. The ALJ’s failure to develop the record is particul arly egregious, because this is a step five case. In step five cases, the burden is on the Secretary to show that the claimant can do other work in the national economy, based on substantial evidence in the record. See Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993) (Secretary must order consultative exami nation, if necessary to determine RFC at step five). Substantial evidence is missing here.2 The Secretary does not argue that the missing docum ents, had they been

present in the record, would demonstrate that she f ulfilled her duty to develop. -8- Mr. Pruitt argues that further development should i nclude a consultative examination. We agree. The Secretary has broad latitude in deciding whether to order consultative examinations. See Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 778 (10th Cir. 1990). Here, howeve r, Mr. Pruitt has shown objective evidence of a condition which requires fu rther development, see Howell v. Sullivan , 950 F.2d 343, 348-49 (7th Cir. 1991), and that a final determination cannot be made because the evidence as a whole is i nsufficient to support a decision, see 20 C.F.R. § 416.919a(b). Under these circumstance s, a consultative examination is required. Mr. Pruitt also complains that the Appeals Council should have developed the record further after his representative informe d it that he had been courtcommitted to a mental hospital. While this issue t echnically has been waived by Mr. Pruitt’s failure to raise it before the distric t court, see Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994), since we remand bas ed on the record before the ALJ, the Secretary on remand should also take all n ecessary steps to obtain any pertinent, available medical records connected with the alleged hospitalization. Finally, Mr. Pruitt complains of various documents missing from the administrative record presented to the district cou rt and this court. 2There is no-9-

indication that his counsel brought this problem to the attention of the district court. Although the Secretary has the responsibili ty to assemble the record for purposes of review, see 42 U.S.C. § 405(g), counsel for the claimant canno t simply remain silent in the district court proceedi ngs concerning deficiencies in the record, and then assert those deficiencies as f urther support for reversal in this court. In the event of further court review of thi s and other cases, we admonish Mr. Pruitt’s counsel to bring any deficiencies in the assembed administrative record to the attention of the district court. The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and this case is REMANDED, with instructions to the district court to REMAND this case to the Secre tary for further proceedings in accordance with this order and judgment.

Entered for the Court

Stephen H. Anderson Circuit Judge