* This order and judgment is not binding precedent, except under the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

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(G). The case is

therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 5 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT W. KAPITAN,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-5124

(D.C. No. 96-CV-1095-M)

(N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

Robert W. Kapitan (claimant) appeals from the district court’s order

affirming the decision of the Commissioner of Social Security. 1

 In that decision,

the Commissioner denied claimant’s applications for disability insurance benefits 
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made under Title II of the Social Security Act. See 42 U.S.C. § 423. We exercise

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and reverse.

Our review is limited to determining whether the Commissioner’s decision

is supported by substantial evidence on the whole record and comports with

relevant legal standards. See Casias v. Secretary of Health & Human Servs. , 933

F.2d 799, 800-01 (10th Cir. 1991). Claims for disability benefits are evaluated

according to the five-step sequential process set out in 20 C.F.R. § 404.1520. See

Williams v. Bowen , 844 F.2d 748, 750 (10th Cir. 1988). At step three of the

sequential evaluation, the administrative law judge (ALJ) determines whether the

claimant’s impairment “is equivalent to one of a number of listed impairments

that the [Commissioner] acknowledges are so severe as to preclude substantial

gainful activity . . . . If the impairment is listed and thus conclusively presumed

to be disabling, the claimant is entitled to benefits.” Id. at 751 (quotation

omitted). 

In this case, the ALJ determined at step five that claimant has a severe

impairment--HIV positive status--that precluded him from performing his past

relevant work, but that he retained the ability to do the full range of light work. 

Claimant raises six points of error, including the assertion that at step three, the

ALJ improperly rejected the treating physician’s diagnoses and opinion that
2 The Commissioner argues that these asserted errors were not recognized by

the district court as constituting sufficient grounds to remand the case, were in

violation of the court’s order requiring claimant to make specific claims of error,

and were therefore waived. Our review of claimant’s brief to the district court

and the court’s order indicates that, although the brief is certainly not a model of

specificity and was deserving of the court’s criticism, the district court did

understand claimant’s assertion that the ALJ improperly rejected the treating

physician’s diagnoses and opinion in regard to the disability listings. Albeit at the

margin, we conclude that claimant (barely) preserved the error for appeal.

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claimant met certain disability listings. 2

 Because we conclude that the ALJ

erroneously discounted the treating physician’s diagnoses and opinions and that

all the medical evidence supports a finding of disability at step three, we address

only this claim of error. 

The criteria for evaluating an HIV-infected claimant for disability benefits

are set forth in appendix 1 of 20 C.F.R., Chapter III, part 404, subpart P, sections

14.00(D) and 14.08. Using the forms provided by the Social Security

Administration, claimant’s treating physician, Dr. Beal, reported that claimant

met the disability listing for sections 14.08(H) and (N). See Appellant’s App.

Vol. II at 130-31. Under section 14.08(H), a patient meets the listing if there is

laboratory documentation of HIV infection and HIV encephalopathy

“characterized by cognitive or motor dysfunction that limits function and

progresses.” The medical record shows that claimant had often complained of

intermittent pain and numbness in his upper extremities. See Appellant’s App.

Vol. II at 140, 167, 172, 175. In June 1994, Dr. Hickman, a clinical
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psychologist, found that claimant’s motor speed in his upper extremities was

severely impaired on the left side, that his motor strength was severely impaired

bilaterally, and that his fine motor dexterity was moderately impaired bilaterally. 

See id. at 119. Claimant also had a “moderately impaired” cognitive ability to

differentiate similar sounding speech. Id. Because Dr. Hickman characterized

these symptoms as “ minor cognitive, motor, and sensory changes,” see id. at 117

(emphasis added), the ALJ disregarded Dr. Beal’s conclusion that claimant met

listing 14.08(H). 

The listing, however, does not require that HIV encephalopathy be severe;

it requires only that it limits cognitive or motor function and progresses. We

conclude that the ALJ improperly disregarded the medical evidence and the

treating physician’s opinion and misinterpreted the listing. See Frey v. Bowen ,

816 F.2d 508, 513 (10th Cir. 1987) (Commissioner “must give substantial weight

to the testimony of a claimant’s treating physician unless good cause is shown to

the contrary”). 

A claimant meets disability listing 14.08(N) if he/she has repeated

manifestations of HIV infection and a marked level of either restriction of daily

living activities, difficulties in maintaining social functioning, or difficulties in

completing tasks in a timely manner. See 20 C.F.R. Ch. III, Pt. 404, Subpt. P,

App. 1, § 14.08(N). Dr. Beal listed claimant’s qualifying manifestations as
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ongoing and persistent schizophrenia and HIV-related motor changes, constant

fatigue, recurrent episodes of diarrhea, and a marked level of restriction of daily

living activities. See Appellant’s App. Vol. II at 131. Dr. Beal stated that

claimant’s “mild” HIV central nervous system involvement, combined with his

schizophrenia, severe fatigue, and secondary cognitive motor and sensory changes

qualified claimant as having AIDS dementia complex and precluded his

employment. See id. at 177. The ALJ rejected Dr. Beal’s opinion that claimant

met listing 14.08(N). He also rejected Dr. Beal’s diagnosis of schizophrenia,

stating that he could “find no basis for such a condition to exist” because

Dr. Beal’s treatment notes “never appear to tie complaints of the claimant or

findings by Dr. Beal’s office to such a condition.” Id. at 17. 

Simple schizophrenia is a psychosis “characterized by withdrawal, apathy,

indifference, and impoverishment of human relationships.” S TEDMAN ’S MEDICAL

DICTIONARY 1390 (25th ed. 1990). To diagnose schizophrenia, a doctor should

observe at least two of the following characteristic symptoms during a one-month

period: delusions, hallucinations, disorganized speech, grossly disorganized or

catatonic behavior, and negative symptoms. See DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS (DSM-IV) 273 (4th ed. 1994). The term

“delusions” includes distortions or exaggerations of inferential thinking and

erroneous beliefs that usually involve a misinterpretation of perceptions or
-6-

experiences. See id. at 274-75. The DSM-IV lists the three basic negative

symptoms of schizophrenia as: affective flattening, alogia (poverty of speech

characterized by brief, empty replies), and avolition (the inability to initiate and

persist in goal directed activities marked by long periods of sitting and little

interest in participating in work or social activities). See id. at 276-77. 

Anhedonia (loss of interest or pleasure) and dysphoric mood (depression, anxiety,

or anger) are also common manifestations of schizophrenia. See id. at 279. 

Our review of claimant’s records reveals medical observations of serious

and chronic psychiatric difficulties including anxiety, depression, difficulties with

social and vocational functioning, limited psychological insight, and blunt affect. 

See Appellant’s App. Vol. II at 117-18. Dr. Hickman specifically reported that

claimant’s scale scores on certain personality tests were consistent with a

diagnosis of schizophrenia. See id. at 120. Claimant also reported major

confrontations with his partner over his belief that his partner was trying to

control him, see id. at 122, and he tried to commit suicide by taking an overdose

of medication that he “knew” wouldn’t kill him, see id. at 58, which may be

considered as delusional thinking if the doctor interpreted those beliefs as

erroneous or based upon distortions of inferential thinking. His testimony

reflected both anhedonia and avolition during the claimed period of disability. 
-7-

See id. at 54-58. The medical records support Dr. Beal’s diagnosis of

schizophrenia. 

While agreeing that the medical record supported Dr. Beal’s findings of

ongoing and persistent HIV motor changes, constant fatigue, and frequent

diarrhea, the ALJ rejected Dr. Beal’s determination that these manifestations

resulted in a marked restriction of daily living activities because, in the ALJ’s

view, none of the manifestations individually were severe enough to have a

marked effect. See id. at 16-19. Again, the ALJ’s conclusion is not supported by

substantial evidence. The medical record reflects many reports of severe fatigue,

although it was intermittent. Dr. Hickman characterized claimant’s psychiatric

difficulties of depression and anxiety as “serious” and “chronic.” Even if an

episode of diarrhea is only “mild,” twenty-four occurrences during the course of a

year, each episode lasting several days, certainly would restrict an individual’s

daily activities. According to the regulations, “marked” means 

more than moderate, but less than extreme. A marked limitation does

not represent a quantitative measure of the individual’s ability to do

an activity for a certain percentage of the time. A marked limitation

may be present when several activities or functions are impaired or

even when only one is impaired. However, an individual need not be

totally precluded from performing an activity to have a marked

limitation, as long as the degree of limitation is such as to seriously

interfere with the ability to function independently, appropriately,

and effectively. The term “marked” does not imply that the impaired

individual is confined to bed, hospitalized, or in a nursing home. 
-8-

20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1, § 14.00(D)(8). The ALJ failed to

consider the total impact of claimant’s combination of HIV manifestations and

did not give good reasons to reject Dr. Beal’s opinion that this combination of

manifestations seriously interfered with claimant’s ability to function

independently, appropriately, and effectively. Because the ALJ’s determination

that claimant did not meet disability listings 14.08(H) and (N) is not supported by

substantial evidence and he failed to apply proper legal standards, we reverse his

decision.

“When a decision of the [Commissioner] is reversed on appeal, it is within

this court’s discretion to remand either for further administrative proceedings or

for an immediate award of benefits.” Ragland v. Shalala , 992 F.2d 1056, 1060

(10th Cir. 1993). Under the circumstances of this case, we conclude that an

award of benefits is appropriate. 

 The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED, and the cause is REMANDED with directions to

remand, in turn, to the Social Security Administration for an award of benefits.

Entered for the Court

Carlos F. Lucero

Circuit Judge