* This order and judgment is not binding precedent, e xcept under the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

### FEB 4 1998 

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

JANET K. STEPHENS,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-6090 (D.C. No. CIV-94-1361-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

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.-2-

Plaintiff Janet K. Stephens appeals from a districtcourt order affirming the denial of social security benefits. The administrative law judge found she “has severe spinal disease with chronic neck and back pa in, thoracic outlet syndrome, degenerative disease of her right knee, asthma, gas trointestinal disorders, and mental disorders.” Appellant’s Appendix (App.) A at 23. Holding that these conditions necessitate sedentary work “which does n ot require her to squat, stoop, kneel, pivot, or climb,” the ALJ concluded she cann ot return to past work. Id. However, based on expert vocational testimony, the ALJ found plaintiff could perform other jobs, specifically telephone solicito r and timekeeper, see id. at 22-23, and held she was not disabled at step five o f the controlling analysis. See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). We review this decision to determine whether it is supported by substantial evidence and adheres to applicable legal standards. See Berna v. Chater , 101 F.3d 631, 632 (10th Cir. 1996). For reasons explained below, we reverse. Among numerous assignments of error, plaintiff cont ends the ALJ failed properly to consider, and include in the dispositiv e hypothetical inquiry posed to the vocational expert, significant mental limitatio ns arising from her affective (depression) and anxiety disorders. We agree. Ourcomparison of the record with the ALJ’s analysis of these impairments reveals sev eral interrelated errors. For a full understanding of these, it will be useful to p rovide some background,-3-

beginning with an earlier ALJ decision in this same proceeding that was vacated on administrative review. The ALJ issued that decision--the second in this pr oceeding begun over eight years ago--in October 1992, following an earl ier administrative remand. In the Psychiatric Review Technique (PRT) attached to the decision, the ALJ noted a “moderate” limitation on social functioning, see App. B at 445, borne out by the psychiatric record generally and the only pertinentprofessional PRT therein, see,
e.g. , id. at 341-43 (report diagnosing “moderate” depressionand anxiety, and noting daily treatment with prozac and valium); id. at 256-264 (PRT noting affective and anxiety disorders and assessing “mode rate” limitation on social functioning). Accordingly, in his decision, the AL J qualified plaintiff’s sedentary work capacity with a nonexertional restriction rega rding public interaction. See id. at 439. Although the same materials indicated pla intiff “often” suffered concentration/persistence difficulties as well, id. at 263, and consequently was “markedly limited” in her ability to understand, re member, and sustain attention for anything but short and simple instructions, id. at 252, the ALJ himself found such difficulties were only “seldom” a problem, id. at 446, and did not recognize any limitation in this regard, see id. at 439. After this decision was reversed, the ALJ conductedfurther proceedings before issuing the January 27, 1994 decision under review. Additional1 In this context, a “fair” rating “is essentially th e same as the listing

requirement’s definition of the term ‘marked,’” whi ch indicates “a degree of limitation . . . such as to seriously interfere wit h the ability to function independently, appropriately, and effectively.” Cr use v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 618 (10th Cir. 1995) (quotations omi tted). -4- psychological evidence pointed only to a deterioration in plaintiff’s condition. The one new mental evaluation, conducted by plainti ff’s treating psychiatrist, Dr. J. E. McCalister, see App. C at 632-35, bluntly stated: “[T]here is no question in my mind but what her depression is much more severe than it was . . . [and that] she is totally and permanently disabled and unable to engage in any substantial gainful employment.” App. B at 494. Noting “marke d” limitations in social functioning, “constant” deficiencies in concentrati on/persistence, and “continual” episodes of decompensation or deterioration in work -like settings, id. at 504, the psychiatrist concluded plaintiff met the step-three listings for disability on the basis of mental impairment alone, see id. at 497. The psychiatrist further elaborated on the nature o f plaintiff’s impairment, specifically as to work related activities, by rati ng as “poor/none” her capacities to interact with the public, co-workers, and superv isors; maintain attention and concentration; follow complex, or just detailed, jo b instructions; deal with work stresses; and behave in an emotionally stable manne r. Id. at 495-96. He rated as only “fair” 1 such basic capacities as execution of simple instr uctions and ability to follow work rules. Id. Independent of his conclusion that step-three lis tings were2 The ALJ discounted plaintiff’s credibility for lackof evidence that she had

“complained of or sought treatment for [the] mental symptoms” related during her 1993 examination. App. A at 21. Actually, the rec ord reflects continuous treatment--including a daily regimen of valium and prozac--for depression and anxiety, with references to her variable but often severe symptoms throughout. -5- met, these specific findings would, in conjunction with plaintiff’s sedentary RFC, dictate a determination of disability at step five in any event. See Soc. Sec. Rul. 96-9p, 1996 WL 374185 at *9 (“A substantial loss of ability to meet any one of several basic work-related activities [including un derstanding, remembering, and carrying out simple instructions, and responding ap propriately to supervision and co-workers] . . . will substantially erode the unsk illed sedentary occupational base and would justify a finding of disability.”). The ALJ did not explicitly reject this professional evaluation. He did, however, completely ignore all of its findings to c onclude that “except for the claimant’s subjective report [of symptoms] . . . the examination did not show considerable reductions in her ability for cognitiv e, mental, and emotional functions .” App. A at 21 (emphasis added). This remarkable conclusion is made possible only by the ALJ’s tacit equation of the ps ychiatrist’s findings with plaintiff’s subjective complaints, 2 as if the former merely parroted the latter without any medical judgment/assessment intervening . This unstated assumption is unwarranted as a professional medical matter and unsupported by any unique facts specific to this case.-6-

Instead of relying on these extensive findings fromplaintiff’s treating psychiatrist, the ALJ looked to a report from plain tiff’s consultative examination in September 1989, which in his view “display[ed] g ood to excellent mental, cognitive, and emotional functions.” Id. at 20. There are many problems with this approach, beyond the obvious objection to the use of a stale consulting report in preference to a treating physician’s current ass essment. The 1989 report could not, as a logical matter, contradict the later medi cal conclusion that plaintiff’s condition had worsened in the intervening four years . Moreover, this narrative report did not contain anyspecific findings to compare with those in the det ailed 1993 evaluation. And, as noted above in connection with the second ALJ decision, the only pertinent medical conclusions in the 1989 report, namely its diagnoses of “moderate” affective and anxiety disor ders, revealed conditions that would support nonexertional restrictions; it did no t reflect “good to excellent” functioning. Finally, there was an intervening psy chological assessment that the ALJ did not address--the professional PRT prepared in February 1990 (also cited above in connection with the second ALJ decision). The findings therein, that plaintiff had “moderate” social deficiencies, “ofte n” experienced problems in concentration/persistence, and was “markedly limite d” in handling detailed instructions, App. B at 252, 263, are certainly con sistent with the severe and worsening condition depicted in the 1993 evaluation

.-7-

In light of the evidence discussed above, the ALJ’s denial of benefits clearly cannot stand. The ALJ (1) unaccountably ig nored the most probative psychiatric opinion in the record--an opinion whichwould direct a finding of disability; (2) plainly erred in denying the existe nce of any work-related mental impairment; and, as a result, (3) relied on a legal ly deficient hypothetical inquiry to the vocational expert which omitted substantial nonexertional limitations established by the evidentiary record. In fairness to the district court, however, we note plaintiff has not always artfully articulat ed and effectively demonstrated these errors throughout the proceedings on judicial review. This case has dragged on through eight years and th ree inadequate ALJ decisions. And, at this point, the record would support a finding of disability at steps three or five. “When a decision of the [Soci al Security Administration (SSA)] is reversed on appeal, it is within this cou rt’s discretion to remand either for further administrative proceedings or for an im mediate award of benefits.” Ragland v. Shalala , 992 F.2d 1056, 1060 (10th Cir. 1993). Under the circumstances, we conclude an award of benefits is appropriate. See, e.g. , Sisco v. United States Dep’t of Health & Human Servs. , 10 F.3d 739, 746 (10th Cir. 1993) (remanding for award of benefits in similarlyprotracted case, and admonishing that SSA “is not entitled to adjudicate a case ad infinitum until it correctly applies the proper legal standard and gat hers evidence to support its-8-

conclusion” (quotation omitted)); Ragland , 992 F.2d at 1060 (remanding for award of benefits “[i]n light of [SSA’s] patent fai lure to satisfy [its] burden of proof at step five, and the long delay that has alr eady occurred as a result of [its] erroneous disposition of the proceedings”). More s pecifically, we direct SSA to make the award effective as of July 12, 1989, the p rotective filing date of plaintiff’s current application for benefits. The judgment of the United States District Court fo r the Western District of Oklahoma is REVERSED, and the cause is REMANDED with directions to remand, in turn, to the Social Security Administrat ion for an award of benefits.

Entered for the Court

Robert H. Henry Circuit Judge