                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 7 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JEANETTE P. TIGER,

                Plaintiff-Appellant,

    v.                                                   No. 97-5134
                                                   (D.C. No. 96-CV-353-W)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before BRORBY, BARRETT, and BRISCOE, 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




*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      In 1992, claimant Jeanette P. Tiger filed an application for supplemental

security income benefits under Title XVI of the Social Security Act, alleging

disability since September of 1991 as a result of asthma and nervous tension. Her

application was denied administratively, both initially and upon reconsideration.

After a hearing, an administration law judge (ALJ) determined that claimant was

not disabled under the Social Security Act. His decision became the final

decision of the agency when the Appeals Council denied claimant’s request for

review. The district court affirmed the denial of benefits, and claimant now

appeals. Our jurisdiction arises under 42 U.S.C. § 405(g). Because we conclude

that both the district court and ALJ committed legal error, we reverse and remand

for further agency proceedings.

      To qualify for disability benefits, claimant must demonstrate an “inability

to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The agency has established a

five-step sequential test for evaluating a disability. See 20 C.F.R. § 416.920; see

also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing five


                                         -2-
steps). Here, the ALJ determined, at step two of the sequential analysis, that

claimant’s alleged mental impairments were not severe and, at step four of the

sequential analysis, that her asthma did not preclude her from performing her past

relevant work. On appeal, claimant raises two main issues with regard to her

alleged mental impairments. First, she contends that the ALJ’s step two

determination that her mental impairments are not severe is not supported by

substantial evidence in the record. Specifically, she contends that the ALJ’s

analysis at this step ignored pertinent record evidence regarding her mental

limitations and misconstrued other evidence of record. She also asserts that the

ALJ substituted his own opinion for that of medical experts.

      The ALJ, in reaching his determination that claimant’s mental impairments

are not severe, relied on a report by psychiatrist Dr. Dean assessing claimant’s

mental status. He summarized Dr. Dean’s diagnosis that claimant suffered from

generalized anxiety disorder, mixed personality disorder and major depression,

but then discussed certain observations by Dr. Dean which would seem to

diminish that diagnosis. He noted, for example, that Dr. Dean found claimant to

be “friendly, appropriate, and well grounded in reality,” and that she

“demonstrated no unusual behavior.” Appellant’s App., Vol. II, at 17. Dr. Dean

did not fill out a Psychiatric Review Technique (PRT) or comparable form

assessing claimant’s residual functional capacity in light of his diagnosis. The


                                         -3-
ALJ, without discussing or mentioning any other medical evidence, ultimately

concluded that claimant “can concentrate, understand, remember, and carry out

instructions. She can use judgment, respond to supervision and co-workers, deal

with usual work setting and routine changes.” Id. As required by agency

regulation, the ALJ filled out a PRT form concluding that claimant had no severe

mental impairments. See Cruse v. United States Dep’t of Health & Human Servs.,

49 F.3d 614, 617 (10th Cir. 1995).

      First, we agree with appellant that the ALJ apparently did not consider

other record evidence regarding claimant’s alleged mental impairments. Dr.

Carolyn Goodrich, an agency psychologist, filled out a PRT form and a Mental

Residual Functional Capacity form after a review of claimant’s medical records,

including the psychiatric report from Dr. Dean. Based on the three points in Dr.

Dean’s diagnosis, Dr. Goodrich concluded that claimant had a severe mental

impairment which required further assessment of her mental residual functional

capacity. Id. at 37. Dr. Goodrich concluded that claimant’s mental impairments

resulted in some functional limitations, including marked limitations in her

abilities to understand, remember, and carry out detailed instructions, and to

interact appropriately with the general public. Id. at 45-46. Dr. Goodrich added

the following hand-written notes under “Functional Capacity Assessment:”

“Claimant can understand & perform simple tasks. She can interact appropriately


                                         -4-
with co-workers & supervisors, but not the general public. She can adapt to a

work situation.” Id. at 47. Dr. Goodrich’s assessment of claimant was reviewed

and affirmed by another agency psychologist, Dr. Smallwood. Id. Nowhere in his

decision did the ALJ mention, discuss, or weigh Dr. Goodrich’s findings or

opinions.

      Social Security Ruling 96-6p states that findings regarding the nature and

severity of an impairment made by state agency consultants and other program

physicians and psychologists “must be treated as expert opinion evidence of

nonexamining sources.” Soc. Sec. Rul. 96-8p, 1996 WL 374180, at *1. Further,

ALJs “may not ignore these opinions and must explain the weight given to these

opinions in their decisions.” Id. Dr. Goodrich’s assessment of claimant’s mental

capabilities was contrary in some respects to the ultimate conclusions reached by

the ALJ in this case. The ALJ’s failure to discuss and weigh this record expert

medical evidence violated the requirements of Soc. Sec. Rul. 96-6p and

undermined the ALJ’s ultimate conclusions regarding claimant’s alleged mental

impairments. 1




1
      We also note that the district court erred in concluding that the ALJ was not
required to discuss this evidence. See Appellant’s App., Vol. I, at 13. “The
agency’s rulings are binding on an ALJ.” Nielson v. Sullivan, 992 F.2d 1118,
1120 (10th Cir. 1993).

                                        -5-
      Finally, we also agree with claimant that Dr. Dean’s report does not support

the ALJ’s conclusions. Dr. Dean did not discuss or opine how claimant’s mental

limitations might affect her residual functional capacity or her ability to perform a

job. Therefore, to the extent that the ALJ made findings about claimant’s mental

limitations while appearing to rely solely on Dr. Dean’s report, he did so without

supporting evidence. An ALJ cannot substitute his own opinion for medical

opinion. See Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d

739, 744 (10th Cir. 1993).

      Because we conclude that the ALJ erred at step two in reaching his

conclusion that claimant’s mental impairments were not severe, we need not reach

claimant’s second issue: a challenge to the ALJ’s step four determination that she

could return to her past relevant work. We note, however, that at step four even

nonsevere impairments should be taken into consideration in combination with




                                         -6-
any severe impairments. See Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *5. The

judgment of the United States District Court for the Northern District of

Oklahoma is REVERSED and the case REMANDED with a direction that the

district court remand the case to the agency for further proceedings.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




                                         -7-
