* This order and judgment is not binding precedent, e xcept under the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.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

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

### AUG 11 1998 

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

RANDELL DUKES,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-6031 (D.C. No. 96-CV-887) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHAandMcKAY , Circuit Judges, and BROWN, ** Senior District Judge.

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 oral1 Plaintiff filed his application for benefits on Jun e 23, 1993, alleging

disability since March 6, 1992. The ALJ determinedthat because plaintiff had failed to appeal an earlier denial of benefits date d 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 r eview 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- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals the district court’s affirmance o f the Commissioner’s decision denying his application for disability ins urance benefits. On appeal, plaintiff argues that (1) the ALJ erred in determin ing 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 perfo rm 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, 199 3, 1 due to chronic back pain, depression, right eye blindness, high blood p ressure, and stomach ulcers. After conducting an evidentiary hearing, the admini strative 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 h ad not engaged in substantial gainful activity since his alleged disability date. At step two, the ALJ determined-3-

that plaintiff has the severe impairments of degene rative disease of the lumbar spine and lumbar disk herniation. The ALJ determin ed at step three that plaintiff does not have an impairment or combination of impai rments 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 exertiona l demands of medium, heavy, and very heavy work, right eye blindness, and abili ty to stoop only occasionally, plaintiff could perform his past relevant work as acashier and, therefore, was not disabled. When the Appeals Council denied plaintif f’s request for review, the ALJ’s decision became the final decision of the Com missioner. See 20 C.F.R. § 404.981. “We review the [Commissioner’s] decision to determi ne 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 evi dence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson v. Perales , 402 U.S. 389, 401 (1971) (quoting Consolidated Edis on 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-4-

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 menta l impairment either alone or in combination with his other impairments meets or equ als listing § 12.04, and, therefore, he is presumptively disabled. The ALJ determined that plaintiff’s mental impairme nt was not severe. In reaching this decision, the ALJ, as is required, se e 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 restricthis 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 me ntal 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 fin dings, the medical evidence of Dr. Dougherty and Dr. Krueger, both con sulting doctors, proves that he meets listing § 12.04. Dr. Dougherty, who is bo ard certified in internal-5-

medicine and pulmonary disease, reported in the his tory section of his consulting report dated February 2, 1993, that plaintiff had b een depressed for six months, cried frequently, slept poorly, had urinary frequen cy 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 e valuation. 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 norm al, even though he looked somewhat depressed; his mood was depressed; his spe ech and flow of thought were normal; he was generally cooperative, but too distracted or depressed to cooperate with memory testing; he could handle smal l calculations; his motor activity was somewhat slowed; he currently had no s uicidal ideation; he heard voices; and his judgment was somewhat impaired. Se e id. at 59 001-03. Dr. Krueger concluded that plaintiff’s ability to r eason 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 psychoti c features.” See id. at 59 003.2 This court has recognized that this form hampers th is 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- In addition to preparing the narrative, Dr. Kruegeralso filled out a Medical Assessment of Ability to Do Work-Related Activities (Mental) form. 2With regard to making occupational, personal, and social adjustments, Dr. Krueger checked blocks indicating that plaintiff had a “goo d” ability to follow work rules, relate to coworkers, deal with the public, use judg ment, interact with supervisors, deal with work stresses, function independently, ma intain concentration and attention, maintain personal appearance, behave in an emotionally stable manner, relate predictably in social situations, and demons trate reliability. See id. at 59 004-05. Dr. Krueger also checked blocks indicat ing that plaintiff had a “good” ability to understand, remember, and carry out simp le and detailed job instructions, but only a “fair” ability with respec t 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” ab ility as seriously limited but not precluded. See id. at 59 004.3 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- Dr. Krueger’s narrative and the form appear inconsi stent. 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 e xpressly 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. Givi ng 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 de pression 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.-8-

Plaintiff also argues that the ALJ failed to consid er his combined physical and mental impairments in deciding that his impairm ents did not equal listing § 12.04. The ALJ merely listed the back impairment s he found severe at step two and stated that he considered the combined effect o f plaintiff’s alleged impairments at step three. Although the ALJ did no t, 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 find ings 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 th e claimant’s impairments than is required at step two”). The record supports the AL J’s findings at step four, as well as his conclusions at steps two and three. Ac cordingly, 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 s tep two that plaintiff does not suffer from a severe mental impairment. If we disagree with his step three argument, plaint iff argues that the ALJ erred at step four in failing to recognize the impa ct his mental impairment has on-9-

his ability to perform his past work. Plaintiff be lieves that his combined physical and mental impairments preclude him from performing his past work. Contrary to plaintiff’s argument, the ALJ considere d plaintiff’s mental impairment, along with any alleged physical impairm ents, at step four. Plaintiff, however, failed to prove that his impairments precl uded 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 cl aimant has burden of proof at step four). Accordingly, we con clude substantial evidence supports the ALJ’s determination that plaintiff canperform his past relevant work as a cashier. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge