* 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. App. P. 43(c), John J. Callahan, Acting Commissioner of Social Security, i s substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in this caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### SEP 29 1997 

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

JO LEE EDEN,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-7011 (D.C. No. CV-95-257-B) (E.D. Okla.)

ORDER AND JUDGMENT **

Before TACHA, MCKAY, and BALDOCK, 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from the district court’s affirma nce of the Secretary’s determination that he is not disabled and is, there fore, not entitled to disability benefits or supplemental security income benefits. On appeal, plaintiff argues that the administrative law judge (ALJ) failed to c onsider properly his mental impairments in combination with his other impairments to determine his residual functional capacity (RFC) when the ALJ failed to pr epare a Psychiatric Review Technique (PRT) form. We review the Secretary’s de cision to determine whether the factual findings are supported by substantial e vidence in the administrative record viewed as a whole and whether correct legal standards were applied. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Because we conclude the ALJ failed to applycorrect legal standards, we remand for further proceedings by the ALJ to assess plaintiff’s mental impairment in accordance with the regulations.1 The ALJ declined to reopen the most recent, August 19, 1993, denial.

Thus, plaintiff must show disability as of August 2 0, 1993. See Califano v. Sanders , 430 U.S. 99, 107-08 (1977) (42 U.S.C. § 405(g) do es not permit judicial review of refusal to reopen social security claims) ; Brown v. Sullivan , 912 F.2d 1194, 1196 (10th Cir. 1990) (federal courts have no jurisdiction to review Secretary’s refusal to reopen claim for disability benefits). -3- Plaintiff has made three prior applications for dis ability and SSI benefits. 1 In this fourth case, plaintiff alleges disability d ue to pain in his right shoulder, leg and ankle, back problems, and limitations imposed b y borderline intelligence and functional illiteracy. After holding an administrative hearing, the ALJ denied benefits. The ALJ determined that although plainti ff suffers from arthritis of the right ankle, bursitis of the right shoulder, tender ness in his low back, and an inability to read and write and he is unable to per form his past work, he retains the RFC to perform a full range of sedentary work, subject to his inability to read and write. Accordingly, the ALJ concluded plaintif f is not disabled and denied benefits at step five of the controlling five-step analysis. See 20 C.F.R. §§ 404.1520; 416.920. Plaintiff argues the ALJ failed to evaluate his men tal impairment of borderline intelligence as required by 20 C.F.R. §§ 404.1520a and 416.920a and failed to prepare a PRT form. In evaluating a ment al impairment allegedly preventing the plaintiff from working, the ALJ mustfollow special procedures and prepare a PRT form. See 20 C.F.R. §§ 404.1520a; 416.920a; Cruse v. United-4-

States Dep’t of Health & Human Servs. , 49 F.3d 614, 617 (10th Cir. 1995); Andrade v. Secretary of Health & Human Servs. , 985 F.2d 1045, 1048-49 (10th Cir. 1993). The ALJ failed to do so. Accordingly, remand is required for the ALJ to follow the special procedures and prepare the fo rm as required by the regulations. Because the ALJ must reconsider plaintiff’s allegedmental impairment, we do not consider plaintiff’s argument that the AL J failed to fully present plaintiff’s impairments to the vocational expert. After making the appropriate findings regarding plaintiff’s mental impairment, t he ALJ must then determine whether to obtain further vocational testimony. Because the ALJ failed to apply the correct legal s tandards, the judgment of the United States District Court for the Eastern Di strict of Oklahoma is VACATED. The action is REMANDED to the district co urt with directions to remand to the Commissioner for further findings by the ALJ, who is to reconsider the disability determination after properly assessi ng plaintiff’s mental impairment. Entered for the Court

Deanell Reece Tacha Circuit Judge