* 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. Accordingly, t he district court substituted Shirley S. Chater, Commissioner of Social Security, for Donna E. Shalala, Secretary of Health and Human Services, as the prop er defendant in this action. Although the caption reflects this substitution, inthe text we continue to refer to the Secretary because she was the appropriate partyat 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### APR 2 1997 

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

PAUL HIERSTEIN,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-6233 (D.C. No. CIV-94-1699-T) (W.D. Okla.)

ORDER AND JUDGMENT **

Before PORFILIO, ANDERSON, and BRISCOE, Circuit Jud ges.-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 appeals from a district court order affir ming the Secretary’s decision to deny social security benefits. The Sec retary conceded that plaintiff’s residual functional capacity (RFC) for sedentary wo rk, limited by his inability to deal with the public or handle stress, precluded a return to past work. However, based on vocational expert testimony, the Secretarydetermined plaintiff could perform other jobs in the national economy and, thu s, found him not disabled at step five of the controlling analysis. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). “We review the Secretary’ s decision to determine whether her factual findings are supported by subst antial evidence in the record viewed as a whole and whether she applied the corre ct legal standards.” Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). We reverse and remand for further proceedin gs in light of cumulative legal errors undermining the analysis of plaintiff’ s mental impairment.
A In November 1988, plaintiff was hospitalized in Mis souri under suicide precautions for nearly two weeks after overdosing o n medication. Upon1 Although the Appeals Council discussed other eviden ce presented on

administrative appeal, it did not even acknowledge this treating opinion. -3- discharge, he was diagnosed with dysthymic disorder , adjustment disorder with depressed mood, suspected obsessive compulsive diso rder, personality disorder, and a history of depression and anxiety. His progn osis guarded, he was placed on psychotropic medication and strongly urged to conta ct a local mental health center for follow-up care in San Antonio, where he plannedto relocate. Progress notes from a Veterans Administration (VA) medical center in San Antonio show continuing major depression and increasing medicati on in early 1989. After moving again, plaintiff sought treatment at anotherVA facility in Oklahoma. The voluminous record generated thereafter reflects chr onic depression, anxiety, and personality problems treated by weekly therapy and medicinal intervention through the date of the hearing decision in Decembe r 1993. Indeed, in an October 1993 statement, submitted on plaintiff’s administrative appeal, plaintiff’s treating physician, Dr. Florida Serquina, summarized her ass essment of plaintiff as “markedly depressed [with] suicidal [and] homicidal ideation” and flatly concluded “[h]e is unable to obtain a job because o f recurrent depression [and] marked anxiety.” App. II at 57. 12 The PRT and mental RFC assessment were prepared forthe Secretary by

Stephen J. Miller, PhD., on May 4, 1992. The menta l RFC was “affirmed as written” by a second professional on November 13, 1 992. App. II at 114. -4- The only psychiatric review technique (PRT) and mental RFC forms for plaintiff prepared by professional psychologists 2 reflect: (1) moderate limitation on daily activities; (2) moderate limitations on un derstanding, remembering, and carrying out detailed instructions (but no such lim itations for very short and simple instructions); (3) marked limitation on appr opriate interaction with the general public; (4) moderate limitation on appropri ate interaction with supervisors, coworkers, and peers; and (5) deficien cies of concentration, persistence, or pace “often” resulting in failure t o complete tasks in a timely manner. App. II at 112-24. The mental RFC conclud es with this narrative elaboration: “Can perform simple to mod. complex t asks only. Cannot tolerate involvement [with] public. Can relate adequately t o co-workers/supervisors if contact is minimal [and] superficial.” Id. at 114. At the Secretary’s direction, Dr. William S. Davies examined plaintiff on April 21, 1992. Dr. Davies diagnosed “a moderate d epression with a possible schizo-affective difficulty which appears to be in fair control.” Id. at 321. His only present vocational finding was the qualified j udgment that plaintiff’s “[a]bility to reason or make occupational, personal or social adjustments . . . . appear to be generally intact at least for generall y simple situations.” Id.-5- B The ALJ completed his own PRT form and attached it to his decision. The ALJ’s assessments deviate from those recorded on th e professional PRT form noted above, which he did not discuss. Indeed, the ALJ’s decision, which simply recites that a PRT form “has been attached to this decision and is made a part hereof,” id. at 70, does not tie any evidentiary explanation to his contrary findings that plaintiff had only “slight” restrictions on da ily activities and “seldom” suffered deficiencies of concentration, persistence or pace. Compare id. at 69-70 withid. at 75. Indeed, the ALJ’s general discussion of the psychol ogical evidence was extremely stunted. From plaintiff’s five-year treatment record, reflecting a severe chronic condition naturally fluctuating with extern al pressures, the ALJ selected but two isolated, marginal, and transitory items to minimize plaintiff’s mental impairment: “a mental status examination of Octobe r 1991 negative for suicidal ideations and the claimant noting to his social wor ker in 1992 that he was starting to feel better about his future.” Id. at 69-70 (internal quotation omitted). The only other evidence the ALJ mentioned was the consu ltative report submitted by Dr. Davies, whose qualified vocational assessment r egarding “simple situations” the ALJ recited as contra indicative of functional impairment. See id. at 70.3 The Secretary notes that some matters raised on app eal, including the PRT

issue discussed in text above, have not been urged consistently throughout the proceedings. However, given the ALJ’s substantial misuse of the PRT form, and its inseparability from plaintiff’s other, preserve d challenges to the psychological evidence underlying the finding of nondisability, w e deem it appropriate to reach and correct that error. In contrast, we do not con sider the merits of plaintiff’s belated, collateral arguments regarding the Appeals Council’s duty to develop the record. See generallyCrow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). -6- The ALJ found plaintiff capable of performing sedentary work, excluding occupations “involving contact with the general pub lic” and those imposing more than “low stress.” Id. at 71. Limited co-worker/supervisor interaction and substantive job simplicity, both called for withoutdissent by psychological professionals in this case, were not expressly addr essed by the ALJ. More importantly, the ALJ did not include either of thes e restrictive conditions in the decisive hypothetical posed to the vocational expert. See id. at 100 (inquiring about examples of “sedentary work that would not in volve directly dealing with the public, and that also would be of the least amo unt of stress--be unstressful or have little stress. That’s it. That’s all.”).
C Our comparison of the record with the ALJ’s analysi s reveals several interrelated legal errors. 3 First of all, the ALJ’s choice of two superficial ly favorable notations out of a five-year treatment re cord, downplaying the severity of a chronic mental impairment inherently varying w ith the vicissitudes of the-7-

patient’s life, reflects the kind of misleading sel ective inquiry courts have decried on numerous occasions. See, e.g. , Sisco v. United States Dep’t of Health &
Human Servs. , 10 F.3d 739, 743 (10th Cir. 1993); Teter v. Heckl er , 775 F.2d 1104, 1106 (10th Cir. 1985); Switzer v. Heckler , 742 F.2d 382, 385-86 (7th Cir. 1984); Fiorello v. Heckler , 725 F.2d 174, 175-76 (2d Cir. 1983). Second, compounding this general problem, the Appeals Counc il specifically failed to address Dr. Serquino’s finding of psychological dis ability presented on administrative appeal. The limited, and partly cor roborative, consulting opinion from Dr. Davies noted by the ALJ could not justify ignoring Dr. Serquino’s treating opinion. See Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996); see,
e.g. , Washington v. Shalala , 37 F.3d 1437, 1440-41 (10th Cir. 1994) (consultin g psychiatrists’ observation of claimant’s relative s tability under nonstressful circumstances did not undercut treating physicians’ opinions about inability to cope with stress of handling people and demands in work setting). Third, in light of the contrary evidence, particularly the findings recorded on the professional PRT and mental RFC forms, the ALJ’s failure to expl ain his PRT assessment was both procedurally and substantively erroneous. See Cruse v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 617-18 (10th Cir. 1995); see, e.g. , Washington , 37 F.3d at 1441-42 (ALJ erred procedurally in fai ling “to discuss the evidence on which he relied in completing the PRT f orm,” and substantively in-8-

that “his conclusions on the form . . . differed fr om the opinions of [the treating physicians] as well as the opinions of the agency’s medical consultants who completed PRT forms”). Fourth, the ALJ’s hypotheti cal to the vocational expert improperly omitted specific nonexertional limitatio ns, regarding job simplicity and restricted interaction with co-workers/supervis ors, that were uncontradicted in the medical record. See Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995);
see, e.g. , Cruse , 49 F.3d at 619 & n.5 (constellation of mental lim itations improperly oversimplified by ALJ in hypothetical re garding “low stress”). Although plaintiff does not challenge the Secretary ’s step-one finding that his intermittent employment in 1990-91 constituted substantial gainful activity precluding disability for that period, he does argu e that his sporadic and consistently unsuccessful vocational efforts otherw ise evidence an inability to obtain and hold a job for step-five purposes. Whil e we need not express any final opinions on these matters, which may be revisited and resolved differently on remand, we do note that reliance on ineffectual job searches and abortive work attempts as evidence of non disability--suggested here by the ALJ’s comment that even plaintiff’s unsuccessful employment efforts “r eflect negatively upon the claimant’s general credibility,” App. II at 68--is contrary to controlling law. See,
e.g. , Miller , 99 F.3d at 978; Washington , 37 F.3d at 1442-43; cf. Jozefowicz v. Heckler , 811 F.2d 1352, 1357-58 (10th Cir. 1987). Indeed, the problems-9-

encountered by plaintiff in these attempts, particu larly stress-related difficulties and personal conflict with supervisors, appear to r eflect the real-world impact of his recognized psychological impairments. Finally, plaintiff objects to the incompleteness of the evidentiary record. Specifically, in addition to his contentions regard ing inadequate development at the administrative level, see supranote 3, plaintiff complains that the district court exacerbated the problem by erroneously refusi ng to remand the case pursuant to 42 U.S.C. § 405(g) for consideration of additional materials, including a 100% disability rating by the VA made retroactive to 1990. See Baca v. Department of Health & Human Servs. , 5 F.3d 476, 480 (10th Cir. 1993) (“Although findings by other agencies are not bindi ng on the Secretary, they are entitled to weight and must be considered.” (quotat ion omitted)). To warrant a § 405(g) remand, “we normally must determine that t he new evidence would have changed the Secretary’s decision had it been before [her].” Hargis v. Sullivan , 945 F.2d 1482, 1493 (10th Cir. 1991). “Because we remand this case for further evaluation of the claimant’s combined nonexertional impairments, however, we believe it appropriate that the Secretary initially determine whether th[is] additional [evidence] significantly alter[s] [her] initial determination.” Id. Our remand also provides plaintiff an opportunity to co rrect for himself the asserted gaps in the administrative record.-10-

The judgment is REVERSED and the cause is REMANDED to the district court with instructions to remand, in turn, to the Secretary for further proceedings consistent herewith.

Entered for the Court

Mary Beck Briscoe Circuit Judge