                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EDGAR E. CHAMBERS,

                Plaintiff-Appellant,

    v.                                                    No. 03-7007
                                                    (D.C. No. 02-CV-123-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TYMKOVICH , HOLLOWAY , and ANDERSON , 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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff Edgar E. Chambers appeals from a district court order affirming

the Commissioner’s refusal to reinstate his social security disability benefits

following their termination under the alcoholism provisions of the Contract with

America Advancement Act of 1996, Pub. L. No. 104-121, § 105(a)(1)(C), (5).

See 42 U.S.C. § 423(d)(2)(C). “[W]e closely examine the record as a whole to

determine whether [the Commissioner’s] decision is supported by substantial

evidence and adheres to applicable legal standards.”        Berna v. Chater , 101 F.3d

631, 632 (10 th Cir. 1996) (quotation omitted). “The scope of our review,

however, is limited to the issues the claimant properly preserves in the district

court and adequately presents on appeal[.]”         Id. For the reasons stated below, we

reverse.

      Plaintiff was initially found disabled as of January 1993 based on

“alcoholism, seizure disorder, and left leg arteriosclerotic peripheral vascular

disease,” which left him with a residual functional capacity (RFC) for sedentary

work “reduced by his inability to work at unrestricted heights or around moving

machinery and his inability to sustain work on a regular and reliable basis.” App.

at 32. After his benefits were terminated under the Act, he sought an “entitlement

redetermination,” § 105(a)(5)(C), requiring him to show that alcohol was not “a

contributing factor material to the determination of disability,” i.e., that he would

still be disabled if he stopped drinking, 20 C.F.R. § 404.1535(b).


                                              -2-
      Plaintiff waived a new evidentiary hearing. Upon review of the existing

record, the administrative law judge (ALJ) found that (a) plaintiff had an RFC for

sedentary work “limited further by the requirement that he perform only simple

and unskilled work that is performed in a non-public work setting and that does

not require regular work attendance;”     1
                                              (b) these further limitations–which were

“solely due to [plaintiff’s] frequent and daily alcohol consumption”–precluded his

“adjustment to work which exists in significant numbers in the national

economy;” (c) in contrast, if plaintiff had an unrestricted sedentary RFC, the

regulations “would direct a conclusion of ‘not disabled;’” and (d) consequently,

“alcoholism is a contributing factor material to the finding of his disability.”

App. at 18-19. The Appeals Council denied review of the ALJ’s decision.

      Plaintiff sought judicial review in the district court. While that action was

pending, the Commissioner filed a motion to remand under 42 U.S.C. § 405(g),

“to fully develop and update the record,” hold a new evidentiary hearing, and

permit a thorough reevaluation of plaintiff’s impairments and how they relate to

his use of alcohol. App. at 157-58. Over plaintiff’s objection, the district court

fully granted the Commissioner’s request, remanding “for further administrative

proceedings as outlined in the Motion.”         Id. at 154-55.



1
       The ALJ did not impose any restrictions relating to plaintiff’s seizure
disorder, which he concluded was not severe.  See App. at 14

                                               -3-
         Additional medical evidence was obtained and the ALJ held an evidentiary

hearing to secure new testimony from plaintiff and professional testimony from a

vocational expert (VE). The ALJ again denied benefits, but on different predicate

findings. The ALJ recognized plaintiff had severe impairments, including

“alcohol addictive disorder, seizure disorder, and depressive disorder.” App.

at 138. Although the ALJ discussed plaintiff’s alcoholism in his evaluation of the

evidence, he did not make explicit findings about its contributive role in

plaintiff’s asserted disability, presumably because of the inconclusive nature of

the medical record on the question. Rather, the ALJ found that (a) plaintiff had

the RFC for “a significant range of light work,” in that he could “lift and/or carry

40 pounds occasionally and 25 pounds frequently; stand and/or walk 4 out of 8

hours; [and] sit at least 6 out of 8 hours;” (b) this RFC was limited by an inability

to “perform detailed or complex job tasks, work with the general public, or work

around . . . unprotected heights or dangerous moving machinery;” (c) plaintiff did

not have applicable transferable skills from past work; but (d) plaintiff could still

perform numerically significant jobs in the national economy as identified by the

VE, including bagger, assembler, and collar turner, and, thus, “was not under a

‘disability’ . . . at any time through the date of this decision.”   Id. at 138-39. The

Appeals Council once again denied review and plaintiff returned to the district

court.


                                               -4-
       Plaintiff challenged the ALJ’s decision on four grounds, though these

incorporated multiple interrelated arguments. The magistrate judge issued a

report and recommendation in favor of the Commissioner, which the district court

summarily approved over plaintiff’s objections. We consider the various issues

raised on appeal, and where appropriate the district court’s disposition thereof, in

order of analytical convenience below.


                             Alcohol as Contributing Factor

       Plaintiff argues that the evidence as to whether alcohol is a “contributing

factor” within the meaning of § 423(d)(2)(C) is inconclusive and, therefore, that

the ALJ erred in refusing to reinstate benefits. However, as the magistrate judge

noted, the controlling analysis proceeds in discrete steps, the first of which is the

threshold determination whether the claimant has demonstrated a disability at all;

only if that “condition precedent” is satisfied must the ALJ assess the role alcohol

abuse plays in the demonstrated disability.         Drapeau v. Massanari , 255 F.3d

1211, 1214-15 (10 th Cir. 2001). As explained above, the ALJ determined that

plaintiff was not disabled   per se . Thus, the evidence regarding the contributive

role of alcohol in plaintiff’s impairments was immaterial to the ALJ’s disability

determination. By the same token, when we review plaintiff’s substantive

challenges to that determination, we must consider         all evidence of impairment,

without regard to indications of alcohol involvement.

                                              -5-
                          Incomplete Psychiatric Findings

      Plaintiff contends the ALJ violated 20 C.F.R. § 404.1520a(e)(2) by failing

to include in his decision the substantive findings regarding psychologically based

functional limitations which the regulation formerly required to be set out on a

Psychiatric Review Technique (PRT) form.         See generally Cruse v. United States

Dep’t of Health & Human Servs. , 49 F.3d 614, 617 (10 th Cir. 1995) (discussing

and enforcing former PRT requirement). He notes that PRT forms completed at

earlier stages of his case, including those attached to the two prior ALJ decisions,

found significant limitations which are not directly addressed in the decision

under review.

      Some of the assessments required by the regulation might arguably be

sufficiently inherent in the ALJ’s ultimate findings to obviate concerns that the

functional limitations in question had gone unaddressed. For example, the ALJ’s

restrictions regarding detailed/complex tasks and work with the public may reflect

consideration of basically the same functional areas designated in the regulation

as “activities of daily living” and “social functioning.” § 404.1520a(c). Indeed,

one ALJ who earlier had specified limitations in these categories on a PRT form

ultimately recognized task and personal-interaction work restrictions similar to

those recognized in the ALJ decision under review.       See App. at 18, 22.




                                           -6-
       There is, however, at least one important omission in this respect that

cannot be discounted in this manner. The regulation requires assessment of any

functional limitation in “concentration, persistence or pace,” § 404.1520a(c),

which the PRT specifically relates to the failure “to complete tasks in a timely

manner,” App. 22, 36. Substantial limitations recognized in this category on prior

PRT forms translated, as common sense would suggest, into findings regarding

plaintiff’s “inability to sustain work on a regular and reliable basis” and his need

for an occupational setting “that does not require regular work attendance.” App.

at 32, 36; id. at 18, 22. This critical factor is not directly considered in the ALJ

decision under review. Nor is it inherently accounted for through a related work

restriction in the ALJ’s ultimate findings.    2
                                                   In short, there is no indication that the

ALJ satisfied his duty under the regulation to assess this area of functional

limitation–which was a matter significant enough to call into question plaintiff’s

basic day-to-day reliability as a worker, whatever the occupation.




2
       We recognize the essentially tautological point that restricting a claimant to
simple tasks can address a deficiency in concentration, persistence and pace     if that
deficiency was found to apply only to complex tasks      , see Howard v. Massanari ,
255 F.3d 577, 582 (8 th Cir. 2001); Black v. Apfel , No. 97-5044, 1997 WL 767519,
at **1-**2 (10 th Cir. Dec. 11, 1997). Here, however, it would be pure
speculation to hold that the ALJ’s failure to make the explicit functional
assessment required by the regulation is obviated by a task-dependent
qualification that he never made.

                                              -7-
                              Challenge to VE Testimony

       Plaintiff notes that the Commissioner’s own definition of light work, which

requires “standing or walking, off and on, for a total of approximately 6 hours of

an 8-hour workday,” Soc. Sec. Rul. (SSR) 83-10, 1983 WL 31251 at *6;         see also

SSR 96-9p, 1996 WL 374184 at *6, sets a standard not met by the ALJ’s specific

finding that plaintiff could stand/walk for only 4 hours of an 8-hour workday. As

a result, he argues the VE’s identification of light-work jobs he could perform

rested on a mistaken understanding of RFC. In the same vein, he notes that the

VE’s testimony deviated from the Dictionary of Occupation Titles (DOT), which

classifies the exertional level of the jobs in question as light, and argues that the

ALJ’s failure to clarify the facial inconsistency involved violated this court’s

directive in Haddock v. Apfel , 196 F.3d 1084 (10 th Cir. 1999), that any conflicts

between a VE’s testimony and the DOT must be adequately explained before the

VE’s opinion may provide the basis of decision. While we cannot say, as to the

first point, that the VE actually misapplied RFC principles, that is only because,

per the second point, we lack the explicit explanation    Haddock requires the VE to

provide for her divergence from the pertinent DOT classifications.

       In Haddock , this court discussed at length the potential for conflict between

a VE and the DOT whenever the VE opines about an occupation’s suitability for a

claimant whose functional capacity (or skill level) falls short in some particular


                                            -8-
way from the categorical specifications set out in the DOT.        See id. at 1089-92.

We acknowledged that general DOT classifications do not inherently trump a

VE’s testimony when there is a conflict about the nature of a particular job.      Id. at

1091. We also recognized, however, that when the burden has shifted to the

Commissioner to determine the functional demands of specific jobs and match

those to a claimant’s limitations, it is improper to allow the ALJ to rely on

summary VE conclusions that conflict with the DOT unless the ALJ obtains some

explicit clarification justifying reliance on the judgment of the VE.      Id. at 1090.

Thus, we held “that the ALJ must investigate and elicit a reasonable explanation

for any conflict between the [DOT] and expert testimony before the ALJ may rely

on the expert’s testimony as substantial evidence to support a determination of

nondisability.”   Id. at 1091. No such explanation was obtained here for the VE’s

identification of jobs which, at least as generally specified in the DOT, exceed the

functional capacity found by the ALJ. Under controlling circuit precedent, the

ALJ’s decision cannot stand on its stated rationale.


                                   RFC Determination

       Finally, plaintiff contends the ALJ’s RFC determination was flawed in two

respects. His broadest challenge invokes res judicata and/or collateral estoppel.

Citing the initial ALJ decision on his entitlement redetermination, which denied

benefits based on alcoholism but in the process found him capable of only a

                                             -9-
limited range of sedentary work, plaintiff insists the ALJ who heard his case on

remand from the district court was precluded from finding him capable of light

work. Preclusion principles do not apply, however, as the initial redetermination

decision never became final but, rather, was unconditionally vacated when the

case was remanded by the district court.    See generally United States v. Lacey ,

982 F.2d 410, 412 (10 th Cir. 1992) (holding judgment that has been vacated,

reversed, or set aside is deprived of all preclusive effect).

      Plaintiff raises problems of a more substantial nature with respect to the

ALJ’s reliance on a July 2001 consultative report from Dr. Sherman Lawton to

find him capable of light work. First of all, the ALJ’s reliance on this report for

“opinions regarding [plaintiff’s] functional limitations” is at odds with the ALJ’s

immediately preceding statement that medical records submitted by plaintiff from

1999 “are not relative [sic] for the purpose of determining whether [plaintiff] was

disabled prior to the date his insured status expired [i.e., December 31, 1997].”

App. 134-35. Further, Dr. Lawton failed to discuss a 1995 functional assessment

indicating physical restrictions clearly contrary to a light RFC. See id. at 253.

Significantly, such restrictions were based on laboratory testing and clinical

diagnosis of peripheral vascular disease, see id. at 304, 309-14, and Dr. Lawton

admitted he did not have the records relating to this medical problem, id. at 614

(noting plaintiff “may have vascular insufficiency of the legs, which would be an


                                           -10-
additional problem, but I have no studies in that regard”). In sum, though we

need not rest our disposition on this issue, we note that the ALJ’s heavy reliance

on Dr. Lawton’s report for a definitive RFC determination was problematic.


                                      Conclusion

      For the reasons discussed above, we reverse and remand for further

proceedings by the Commissioner. After two determinations finding plaintiff

disabled as of the expiration of his insured status, revisitation of that threshold

issue at ever more remote junctures seems ill advised. We encourage the

Commissioner to focus, rather, on the issue prompting the termination and

redetermination of plaintiff’s entitlement to benefits: Is alcoholism a contributing

factor within the meaning of § 404.1535(b) such that plaintiff would not be

disabled if he ceased drinking?

      The judgment of the district court is REVERSED, and the cause is

REMANDED with directions to remand, in turn, to the Commissioner for further

proceedings consistent with this order and judgment.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge


                                          -11-
