* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 4 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AURORA L. CHESTER,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-7106

(D.C. No. 97-CV-119)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , 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.
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Claimant Aurora Chester appeals the district court’s order adopting the

magistrate judge’s findings and recommendations and affirming the final decision

of the Commissioner of Social Security that she is not disabled within the

meaning of the Social Security Act, 42 U.S.C. § 423(d) and denying her claim

for disability and supplemental security income benefits. We exercise jurisdiction

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

Claimant, then age forty-six, filed applications for benefits in 1993,

claiming she was unable to work since April 15, 1992 due to chest pains,

shortness of breath, neck pain, shoulder pain, headaches, stress, fatigue and

depression. Her requests for benefits were denied initially and on

reconsideration. She then received a hearing before an administrative law judge

(ALJ), at which she and two medical experts testified.

The ALJ denied claimant’s claims at step four of the evaluation sequence. 

See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). 

He concluded that claimant has severe impairments consisting of chest pains,

shortness of breath, neck pain, shoulder pain, headaches, asthma, stress, fatigue

and depression. However, he determined that she did not have a listed

impairment or combination of listed impairments, and that she retained the

residual functional capacity (RFC) to lift and carry ten pounds occasionally and

twenty-five pounds frequently, to sit without restriction, to stand and walk for
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six hours in an eight-hour day, limited to doing no overhead work and only

occasional climbing in clean air environments at jobs in non-public settings

involving the performance of simple, repetitive tasks, with limited contact with

coworkers in a low stress environment. The ALJ determined that the exertional

requirements of claimant’s past relevant work as a home health care aide (which

he described as a “homemaker”) were not precluded by these limitations. He

therefore concluded that claimant was not disabled. The Appeals Council denied

review, making the ALJ’s decision the final agency decision.

The district court, adopting the report and recommendation of the

magistrate judge, affirmed the Commissioner’s decision. We review the

Commissioner’s decision to determine whether his factual findings are supported

by substantial evidence and whether he correctly applied the relevant legal

standards. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027,

1028 (10th Cir. 1994). 

On appeal, claimant contends the ALJ failed to perform the analysis

required at all three phases of the step four determination. Step four of the

sequential analysis, at which the ALJ found claimant not disabled, is comprised of

three phases. “In the first phase, the ALJ must evaluate a claimant’s physical and

[RFC], . . . and in the second phase, he must determine the physical and mental

demands of the claimant’s past relevant work.” Winfrey v. Chater , 92 F.3d 1017,
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1023 (10th Cir. 1996). “In the final phase, the ALJ determines whether the

claimant has the ability to meet the job demands found in phase two despite the

mental and/or physical limitations found in phase one.” Id. The burden of

proving disability remains with the claimant at step four; however, the ALJ does

have a duty “of inquiry and factual development.” Henrie v. United States Dep’t

of Health & Human Servs. , 13 F.3d 359, 361 (10th Cir. 1993) 

I.

We first address claimant’s contention that the ALJ failed to make a proper

step four analysis at the second and third phase because he did not make specific

findings regarding the demands of her past work and improperly relied on

vocational expert testimony to make his conclusion that claimant’s determined

limitations did not preclude the requirements of her past relevant work as a home

health care aide. See Winfrey , 92 F.3d at 1024-25 (requiring fact findings

regarding past work and discouraging practice of delegating fact-finding

responsibility to vocational expert). At the administrative hearing, claimant

testified that she had worked from 1980 through April 1992 as a nurse’s aide in

various nursing homes. She also testified that, because she needed the money,

she occasionally worked part time as an on-call nurse’s aide and occasionally

worked as a home health care worker in people’s homes.
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However, the ALJ failed to develop the record with “‘factual information’”

regarding the actual work demands of the claimant’s past relevant work, and

whether, given her physical and mental limitations, she could meet those

demands. See id. at 1024. The ALJ did ask claimant what her nurse’s aide work

involved, see R. Vol. II at 33, but he did not inquire into the mental requirements

of that job, nor did he ask her about the physical or mental requirements of her

home health care work. 

The ALJ’s failure to inquire about the mental demands of her home health

care work is particularly critical in this case. The psychiatrist called to testify

about claimant’s mental limitations, Dr. Bolter, testified that she suffered from

a major depressive disorder characterized by appetite and sleep disturbance,

psychomotor agitation, feelings of worthlessness, thoughts of suicide and

hallucinations. See id . at 60-61. Claimant testified that she hears voices that

sound like the devil which tell her someone is going to come and kill her or that

something bad is going to happen. See id . 57-59. Dr. Bolter testified that

claimant’s ability to maintain social functioning was markedly reduced, and that

she would only be able to work in a nonpublic setting, with simple, repetitive

tasks, if the job was low-stress and she had no contact with co-workers. See id .

at 62-63. When asked by the ALJ how claimant managed to work , Dr. Bolter

opined that her jobs had “very minimal kind of social challenge involved, so she
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barely squeaks by.” Id. at 62. When the claimant was asked how she managed to

do her home health care work if she hears voices, she gave a rambling response

that indicated she was scared and nervous by the job and might potentially be

a risk to her patients because of her mental limitations. See id . at 59.

The ALJ also failed to make any factual findings as to how claimant’s

impairments would relate to the actual demands of her work as a home health care

aide. At the hearing, the ALJ asked the VE if he was familiar with claimant’s

physical and mental limitations as described by Dr. Bolter and the other medical

expert who testified, and if the VE could assess those limitations in combination. 

See id . at 64. The ALJ never specified what these limitations were, nor did he

give the VE any description of the work demands of claimant’s past relevant

work. In response, the VE merely gave his conclusory opinion that claimant

could still function as a home health care aide with her limitations. See id .

In his written decision, the ALJ did identify claimant’s functional

limitations, but he never made any factual findings as to the physical and mental

demands of her work as a home health care aide, nor did he make any factual

findings comparing claimant’s limitations to the demands of her past relevant

work. The ALJ merely stated in his written decision that he concurred with the

VE’s opinion. See id. at 19. As we explained in Winfrey , the practice of

delegating the ALJ’s fact-finding responsibilities at step four to a VE is
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discouraged because it is feasible for an ALJ to make specific findings about the

limited jobs that qualify as a claimant’s past relevant work. See 92 F.3d at 1025. 

An “ALJ may rely on information supplied by the VE at step four, [but] the ALJ

himself must make the required findings on the record, including his own

evaluation of the claimant’s ability to perform [her] past relevant work.” Id. 

Here, the ALJ merely adopted the conclusory opinion of the VE that claimant was

not precluded from doing her past relevant work. “When, as here, the ALJ makes

findings only about the claimant’s limitations, and the remainder of the step four

assessment takes place in the VE’s head, we are left with nothing to review.” Id. 

Because we cannot reweigh the evidence, see Castellano , 26 F.3d at 1028,

or make factual determinations on behalf of the ALJ, and because the ALJ’s lack

of specific findings here leaves us nothing to review, see Winfrey , 92 F.3d at

1025, we must reverse and remand for further proceedings.

II.

Having determined the necessity of remand, we turn to claimant’s

contention that the ALJ failed to evaluate properly her physical and mental RFC

at the initial phase of the step four analysis because he erroneously discounted the

opinion of a consulting psychiatrist, Dr. McCarthy. Dr. McCarthy diagnosed

claimant as having had a major single depressive episode and gave her a “global

assessment of functioning” (GAF) score of thirty, which indicates claimant’s
1 A GAF score is a subjective determination which represents “the clinician’s

judgment of the individual’s overall level of functioning.” DSM-IV at 30. The

GAF Scale ranges from 100 (superior functioning) to 1 (persistent danger of

severely hurting self or others, persistent inability to maintain minimal personal

hygiene, or serious suicidal act with clear expectation of death). See id . at 32.

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“[b]ehavior is considerably influenced by delusions or hallucinations” or that she

suffers from “serious impairment in communication or judgment” or that she has

an “inability to function in almost all areas.” American Psychiatric Assoc.,

Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), (4th ed. 1994),

p. 32. 1 Claimant claims the ALJ failed to consider Dr. McCarthy’s opinion

because he did not discuss Dr. McCarthy’s GAF score.

It is clear from the record that the ALJ did not reject Dr. McCarthy’s

opinion, and, indeed, discussed her opinion in his decision. Although the ALJ did

not specifically discuss Dr. McCarthy’s GAF scores in his final written decision,

the ALJ did indicate he had considered all of the evidence. See Clifton v. Chater ,

79 F.3d 1007, 1009-10 (10th Cir. 1996) (“The record must demonstrate that the

ALJ considered all of the evidence, but an ALJ is not required to discuss every

piece of evidence.”). However, the ALJ may not use only portions of a report

which are favorable to his decision, while ignoring other parts of the report. 

See Smith v. Bowen , 687 F. Supp. 902, 904 (S.D.N.Y. 1988) (“Although the ALJ

is not required to reconcile every ambiguity and inconsistency of medical
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testimony, he cannot pick and choose evidence that supports a particular

conclusion.” (citation omitted)).

Because the ALJ’s discussion of Dr. McCarthy’s opinion does not mention

the GAF score of thirty, which does indicate a severe impairment, it is unclear

whether the ALJ considered this aspect of the report, or rejected this evidence,

favorable to claimant’s position, without discussion. On remand, in addition to

making the requisite findings regarding the demands of claimant’s past relevant

work and comparing her impairments with those demands, we direct the

Commissioner to reconsider the evidence of claimant’s mental impairments and to

include an evaluation and discussion of Dr. McCarthy’s GAF score. We note,

however, that our intent here is not to dictate any result, but simply to assure “that

the correct legal standards are invoked in reaching a decision based on the facts

of this case.” Huston v. Bowen , 838 F.2d 1125, 1132 (10th Cir. 1988).

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

of Oklahoma is REVERSED, and the case is REMANDED with directions to
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remand this case to the Commissioner for further proceedings in accordance with

this order and judgment.

Entered for the Court

James E. Barrett

Senior Circuit Judge