* 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), Kenneth S. Apfel, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

*** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

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

### JAN 9 1998 

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

DORIS A. RAILEY,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-7050 (D.C. No. CV-96-220-B) (E. D. Okla.)

ORDER AND JUDGMENT **

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, *** District Judge.-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. Plaintiff-appellant Doris A. Railey appeals the dis trict court’s affirmance of the final decision of the Commissioner of Social Se curity denying plaintiff’s application for disability insurance benefits. Bec ause the Commissioner’s decision, rendered after four admininstrative heari ngs, is not supported by substantial evidence and several legal errors occurred, we reverse and remand for an immediate award of benefits. Procedural History This case has an extensive procedural history. Pla intiff filed her application for disability benefits on July 25, 199 0, alleging an inability to work after July 4, 1989, due to back and knee pain, diff iculty with her hands, and asthma. She also has been diagnosed with a mental impairment. Plaintiff’s insured status lapsed on September 30, 1990. Four hearings have been held now on plaintiff’s app lication. After the first hearing in June 1991, an administrative law judge ( ALJ) found plaintiff able to perform a wide range of medium to light work, and t hus not disabled. This decision was reversed and remanded by the Appeals C ouncil because it was both-3-

internally inconsistent and inconsistent with the e vidence. After a second hearing in September 1992, the ALJ determined plaintiff cou ld perform light work, and thus was not disabled. The Appeals Council again r emanded the case on the ground that the decision disregarded, without explanation, the impact plaintiff’s mental condition had on her ability to work. Aftera third hearing, plaintiff was determined able to perform her former light work. The Appeals Council denied review, but in September 1994 the case was remandedby the district court, because the ALJ’s findings on the Psychiatric Revie w Technique Form (PRTF) were inconsistent with his finding that plaintiff d id not suffer from a mental impairment before September 30, 1990, thereby undermining the finding that plaintiff had the mental residual functional capaci ty to return to her former work. A fourth hearing was had on January 19, 1996, at wh ich a medical expert and a vocational expert testified. Thereafter, the ALJ d etermined that despite plaintiff’s physical and mental impairments, she could perform her former work and thus was not disabled. The Appeals Council denied revie w, making the ALJ’s decision the final decision of the Commissioner. The distri ct court affirmed, and this appeal followed. We review the Commissioner’s decision to determine whether his factual findings are supported by substantial evidence and whether correct legal standards were applied. See Hawkins v. Chater , 113 F.3d 1162, 1162 (10th Cir. 1997).-4-

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v . Perales , 402 U.S. 389, 401 (1971) (quotations omitted). We may “neither rewei gh the evidence nor substitute our judgment for that of the agency.” Casias v. Se cretary of Health & Human
Servs. , 933 F.2d 799, 800 (10th Cir. 1991). On appeal, plaintiff argues the Commissioner’s deci sion must be reversed because (1) the finding that plaintiff has the resi dual functional capacity to perform light work is deficient because the ALJ didnot consider all her medically determinable impairments; (2) the ALJ did not speci fy the evidence relied upon to find plaintiff’s nonexertional impairments nondisab ling, as required by Kepler v. Chater , 68 F.3d 387, 390-91 (10th Cir. 1995); (3) the ALJ ’s findings on the PRTF regarding plaintiff’s mental impairment are not sup ported by substantial evidence; and (4) the ALJ did not determine plaintiff’s menta l residual functional capacity and compare it to the demands of her former work as required by Henrie v. United States Department of Health & Human Services , 13 F.3d 359, 361 (10th Cir. 1993). The Commissioner argues plaintiff is barre d from raising her first and second issues because she did not appeal the distri ct court’s approval of these findings in its review of the third administrative decision. We conclude plaintiff is not barred from raising these issues on appeal, and that obvious legal errors in the fourth administrative decision require reversal

.-5- Analysis In reviewing the Commissioner’s third administrativ e decision, the district court held substantial evidence supported the ALJ’s findings that plaintiff could perform light work and that she was not disabled bypain. The court reversed the Commissioner’s decision, however, because the ALJ’s assessment of plaintiff’s mental residual functional capacity was not support ed by the evidence. Plaintiff’s failure to appeal the district court’s unfavorable rulings in its order reversing the third administrative decision d oes not preclude her from raising similar arguments to this court. First, itis doubtful plaintiff had standing to appeal such rulings, as the overall judgment was in her favor. See, e.g. , California v. Rooney , 483 U.S. 307, 311-13 (1987) (dismissing writ as improvidently granted where party seeking review ob tained judgment entirely in its favor, and objectionable statement in opinion, if given effect in subsequent trial, could be appealed); Affiliated Ute Citizens v. Ute Indian Tribe , 22 F.3d 254, 255-56 (10th Cir. 1994) (holding party lacked stand ing to appeal favorable judgment). Second, the district court’s approval o f the administrative findings was not essential to its ultimate judgment reversin g the third administrative decision, and such findings now have been supersede d by new findings in the fourth administrative decision. See Sullivan v. Finkelstein , 496 U.S. 617, 624-25 (1990) (explaining “each final decision of the [Com missioner] will be reviewable-6-

by a separate piece of litigation” in the district court); Affiliated Ute Citizens , 22 F.3d at 255 (explaining “[a] prevailing party may n ot appeal and obtain a review of the merits of findings it deems erroneous which are not necessary to support the [judgment]”). We therefore examine the merits of plaintiff’s appeal. In support of her application for disability benefi ts, plaintiff submitted medical evidence she has been diagnosed with severa l physical impairments, including a post-surgical knee condition, an impair ment to the lumbosacral spine, carpal tunnel syndrome, and a respiratory condition . In evaluating plaintiff’s physical impairments, the ALJ determined that plain tiff’s knee condition was the only “physical impairment which might be considereddisabling,” citing 20 C.F.R. § 404.1520(c) (setting out step-two requirement that impairment or combination of impairments be “severe”). See Appellant’s App. at 438. Thereafter, the ALJ made no mention of plaintiff’s back impairment, wri st impairment, or respiratory impairment. This analysis constituted legal error. At step two, a claimant is required only to make a “de minimus showing” that her medically determinable impairments, in com bination, are severe enough to significantly limit her ability to perform work- related activity. See Williams v.
Bowen , 844 F.2d 748, 750-51 (10th Cir. 1988). To determ ine whether the claimant’s impairments are sufficiently severe, the Commissioner must “consider the combined effect of all of the individual’s impa irments without regard to-7-

whether any such impairment, if considered separate ly, would be of such severity.” 42 U.S.C. § 423(d)(B); 20 C.F.R. § 404. 1523. At this stage, the ALJ may not dismiss any of a claimant’s impairments as nonsevere and disregard them thereafter. See Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *5 (July 2, 1996) (clarifying that ALJ must consider both severe and not severe impairments when assessing residual functional capacity). Instead, the statutes and regulations make it clear state that if the claimant’s combined impa irments are medically severe, the Commissioner must consider “the combined impactof the impairments throughout the disability determination process.” 42 U.S.C. § 423(d)(B); 20 C.F.R. § 404.1523. The record shows plaintiff’s medically determinable knee impairment, back impairment, wrist impairment, and respiratory impai rment, when combined with her mental impairment, were medically severe, in th at they significantly limited her ability to do basic work activities. See 20 C.F.R. § 1520(c). The ALJ was then required to assess these impairments further t o determine the effect, if any, they had on plaintiff’s residual functional capacity. His failure to do so requires reversal of the decision. The ALJ’s decision is also deficient based on his f ailure to set out the evidence relied upon in determining the credibility of plaintiff’s nonexertional complaints. In evaluating plaintiff’s complaints o f pain and weakness, the ALJ-8-

simply summarized the factors he considered and con cluded her complaints were not credible, without discussing any of the specifi c evidence and how it related to the factors. This is exactly the procedure condemn ed in Kepler v. Chater , 68 F.3d 387, 390-91 (10th Cir. 1995) (holding inadequate AL J’s summary of factors and conclusion regarding credibility without explanatio n of how specific evidence led to conclusion). Finally, the ALJ committed reversible error in his failure to determine the mental requirements of plaintiff’s former work and plaintiff’s ability to perform such work given her mental residual functional capa city. See Henrie v. United States Dep’t of Health & Human Servs ., 13 F.3d 359, 361 (10th Cir. 1993) (requiring ALJ to determine claimant’s residual fun ctional capacity, physical and mental demands of former job, and claimant’s ability to return to job given her residual functional capacity). The ALJ’s questions to the vocational expert concerned only the physical demands of claimant’s f ormer work as a mail clerk or sales clerk, with no discussion of the mental deman ds of either position. As such, the record was “not sufficiently developed” to make a ruling that plaintiff could return to her past relevant work. Id. at 360. The errors in the ALJ’s decision are obvious and un explained, requiring reversal for a fourth time. Plaintiff has requeste d this court to award benefits as a matter of law. Given plaintiff’s advanced age when she filed her application, her-9-

evidence of several medically determinable impairme nts, and the Commissioner’s inability to produce an affirmable decision after f our administrative hearings, we agree. See, e.g. , Nielson v. Sullivan , 992 F.2d 1118, 1122 (10th Cir. 1993) (directing award of benefits based on Secretary’s f ailure to follow regulations, claimant’s advanced age, and length of time case pe nding, and noting court’s discretion to order award of benefits); Emory v. Su llivan , 936 F.2d 1092, 1093-95 (10th Cir. 1991) (reversing step four determinationand directing award of benefits). The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED and the case is REMANDED for an immediate award of benefits.

Entered for the Court

J. Thomas Marten District Judge-10-

Case No. 97-7050, Railey v. Apfel Carlos F. Lucero, Circuit Judge, concurring in part , dissenting in part I agree with the analysis of the majority determini ng that legal errors in the fourth administrative decision require reversal. N evertheless, I cannot concur in the majority’s conclusion directing the award of be nefits to plaintiff. My review of the record persuades me that it is debatable whe ther plaintiff is entitled to an award on the merits. It is regrettable that the ALJ has been unable to a dequately respond to previous directions, but given that this is our fir st opportunity to review plaintiff’s appeal, I would remand for an administr ative hearing and a proper analysis. See, e.g. , Kepler v. Chater , 68 F.3d 387, 392 (10th Cir. 1995) (remanding for express findings and further proceed ings); Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 361 (10th Cir. 1993) (reversing and remanding for further proceedings).