                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 9 1998
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    DORIS A. RAILEY,

              Plaintiff-Appellant,

    v.                                                  No. 97-7050
                                                  (D.C. No. CV-96-220-B)
    KENNETH S. APFEL, Commissioner                      (E. D. Okla.)
    of Social Security, *

              Defendant-Appellee.




                           ORDER AND JUDGMENT **



Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, *** District
Judge.




*
      Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. 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 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      This order and judgment is not binding precedent, except under the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.
***
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff-appellant Doris A. Railey appeals the district court’s affirmance of

the final decision of the Commissioner of Social Security denying plaintiff’s

application for disability insurance benefits. Because the Commissioner’s

decision, rendered after four admininstrative hearings, 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. Plaintiff filed her

application for disability benefits on July 25, 1990, alleging an inability to work

after July 4, 1989, due to back and knee pain, difficulty 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 application. 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 thus not disabled. This

decision was reversed and remanded by the Appeals Council because it was both


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internally inconsistent and inconsistent with the evidence. After a second hearing

in September 1992, the ALJ determined plaintiff could perform light work, and

thus was not disabled. The Appeals Council again remanded the case on the

ground that the decision disregarded, without explanation, the impact plaintiff’s

mental condition had on her ability to work. After a third hearing, plaintiff was

determined able to perform her former light work. The Appeals Council denied

review, but in September 1994 the case was remanded by the district court,

because the ALJ’s findings on the Psychiatric Review Technique Form (PRTF)

were inconsistent with his finding that plaintiff did not suffer from a mental

impairment before September 30, 1990, thereby undermining the finding that

plaintiff had the mental residual functional capacity to return to her former work.

A fourth hearing was had on January 19, 1996, at which a medical expert and a

vocational expert testified. Thereafter, the ALJ determined that despite plaintiff’s

physical and mental impairments, she could perform her former work and thus

was not disabled. The Appeals Council denied review, making the ALJ’s decision

the final decision of the Commissioner. The district 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).


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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 reweigh the evidence nor substitute

our judgment for that of the agency.” Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991).

      On appeal, plaintiff argues the Commissioner’s decision must be reversed

because (1) the finding that plaintiff has the residual functional capacity to

perform light work is deficient because the ALJ did not consider all her medically

determinable impairments; (2) the ALJ did not specify the evidence relied upon to

find plaintiff’s nonexertional impairments nondisabling, 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 supported by substantial evidence;

and (4) the ALJ did not determine plaintiff’s mental 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 barred from raising her first and

second issues because she did not appeal the district 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.


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                                       Analysis

      In reviewing the Commissioner’s third administrative decision, the district

court held substantial evidence supported the ALJ’s findings that plaintiff could

perform light work and that she was not disabled by pain. The court reversed the

Commissioner’s decision, however, because the ALJ’s assessment of plaintiff’s

mental residual functional capacity was not supported by the evidence.

      Plaintiff’s failure to appeal the district court’s unfavorable rulings in its

order reversing the third administrative decision does not preclude her from

raising similar arguments to this court. First, it is 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 obtained 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 standing to appeal favorable

judgment). Second, the district court’s approval of the administrative findings

was not essential to its ultimate judgment reversing the third administrative

decision, and such findings now have been superseded 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 [Commissioner] will be reviewable


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by a separate piece of litigation” in the district court); Affiliated Ute Citizens, 22

F.3d at 255 (explaining “[a] prevailing party may not 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 benefits, plaintiff submitted

medical evidence she has been diagnosed with several physical impairments,

including a post-surgical knee condition, an impairment to the lumbosacral spine,

carpal tunnel syndrome, and a respiratory condition. In evaluating plaintiff’s

physical impairments, the ALJ determined that plaintiff’s knee condition was the

only “physical impairment which might be considered disabling,” 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, wrist 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 combination, 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 determine whether the

claimant’s impairments are sufficiently severe, the Commissioner must “consider

the combined effect of all of the individual’s impairments without regard to


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whether any such impairment, if considered separately, 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 impairments are medically severe,

the Commissioner must consider “the combined impact of 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 impairment, when combined with

her mental impairment, were medically severe, in that 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 to 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 failure to set out the

evidence relied upon in determining the credibility of plaintiff’s nonexertional

complaints. In evaluating plaintiff’s complaints of pain and weakness, the ALJ


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simply summarized the factors he considered and concluded her complaints were

not credible, without discussing any of the specific evidence and how it related to

the factors. This is exactly the procedure condemned in Kepler v. Chater, 68 F.3d

387, 390-91 (10th Cir. 1995) (holding inadequate ALJ’s summary of factors and

conclusion regarding credibility without explanation 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 capacity. 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 functional 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 former work as a mail clerk or

sales clerk, with no discussion of the mental demands 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 unexplained, requiring

reversal for a fourth time. Plaintiff has requested this court to award benefits as a

matter of law. Given plaintiff’s advanced age when she filed her application, her


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evidence of several medically determinable impairments, and the Commissioner’s

inability to produce an affirmable decision after four 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 failure to follow regulations,

claimant’s advanced age, and length of time case pending, and noting court’s

discretion to order award of benefits); Emory v. Sullivan, 936 F.2d 1092, 1093-95

(10th Cir. 1991) (reversing step four determination and directing award of

benefits).

      The judgment of the United States District Court for 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




                                         -9-
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 determining that legal errors in the
fourth administrative decision require reversal. Nevertheless, I cannot concur in
the majority’s conclusion directing the award of benefits to plaintiff. My review
of the record persuades me that it is debatable whether plaintiff is entitled to an
award on the merits.

       It is regrettable that the ALJ has been unable to adequately respond to
previous directions, but given that this is our first opportunity to review
plaintiff’s appeal, I would remand for an administrative 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 proceedings); Henrie v. United States
Dep’t of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993) (reversing
and remanding for further proceedings).




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