                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 24, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JOHN R. GREEN,

      Plaintiff - Appellant,

v.                                                          No. 17-7032
                                                  (D.C. No. 6:16-CV-00024-KEW)
COMMISSIONER, SOCIAL SECURITY                               (E.D. Okla.)
ADMINISTRATION,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      John R. Green is an Army veteran who has been rated 100 percent

unemployable by the Veteran’s Administration (VA) due to his service-related

conditions. Based on this rating, he receives VA disability benefits. He appeals from

the district court’s order affirming the Commissioner’s decision denying his

application for Social Security disability insurance benefits. We reverse and remand

for further proceedings.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
       Mr. Green filed his application for Social Security benefits on January 27,

2015, alleging he became disabled on May 30, 2012. The Commissioner denied his

application, both initially and on reconsideration. On October 8, 2015, Mr. Green

received a hearing before an administrative law judge (ALJ).

       The ALJ determined that Mr. Green had severe impairments including

“degenerative disc disease of the cervical and lumbar spines; knee and hip

impairments; status post abdominal gunshot wound; major depressive disorder; and

[post-traumatic stress disorder (PTSD)].” Aplt. App., Vol. 2 at 13. Given these

impairments, the ALJ assessed he had the residual functional capacity (RFC)

       to perform medium work . . . except with lifting no more than 50 pounds at
       a time; frequent lifting or carrying up to 25 pounds; standing/walking 6
       hours out of an 8-hour workday; and sitting 6 hours out of an 8-hour
       workday. The claimant is able to understand, remember, and [carry out]
       simple instructions consistent with unskilled work that is repetitive and
       routine in nature and able to relate and interact with co-workers and
       supervisors on a work-related basis only with no to minimal interaction
       with the general public. The claimant can adapt to a work situation with
       these limitations [and] restrictions and his medications would not preclude
       him from remaining reasonably alert to perform required functions
       presented in a work setting.
Id. at 15.

       The ALJ further determined that with his RFC, Mr. Green was capable of

performing his past relevant work as a spot welder and a feed loader. Alternatively,

given his age, education, work experience, and RFC, there were other jobs that

existed in the national economy that he could perform, including hardware assembler,

final inspector, and laminator. The ALJ therefore concluded that Mr. Green had not

been under a disability from May 30, 2012, through the date of his decision. The

                                            2
Appeals Council denied review, making the ALJ’s decision the Commissioner’s final

decision.

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the correct

legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.

2010). “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

      On appeal, Mr. Green raises two issues: whether the ALJ failed to properly

consider the disability rating assessed by the VA, and whether the ALJ properly

considered a consulting physician’s opinion. Because the ALJ failed to give proper

consideration to the VA’s disability rating and in particular to the evidence

underlying that determination, we reverse and remand for further proceedings.

      1. VA Disability Rating

      The VA determined in 2013 that Mr. Green had an overall or combined rating

of 80% disability. This rating was attributed primarily to his PTSD, to which the VA

assigned a 70% disability rating. The VA also assigned ten percent disability each

for his lumbar strain, left and right knee strain, and right hip strain. It paid Mr. Green

disability benefits at the 100% rate, however, finding that he was “unemployable due

to [his] service-connected disabilities.” Aplt. App., Vol. 2 at 185.

      In his decision, the ALJ did not mention the VA’s unemployability finding, but

noted the service-connected disability percentages assigned by the VA and then

analyzed the VA’s disability rating, giving it little weight. The ALJ reasoned:

                                            3
       The disability determination processes utilized by the Department of
       Veterans Affairs and the Social Security Administration are fundamentally
       different. [The] Department of Veterans Affairs does not make a
       function-by-function assessment of an individual’s capabilities
       (i.e., determine the claimant’s residual functional capacity) or determine
       whether the claimant is able to perform either his past relevant work or
       other work that exists in significant numbers in the national economy as is
       required by the [Social Security] Regulations. Thus, a disability rating by
       the Department of Veterans Affairs is of little probative value in these
       proceedings.
Id. at 17-18.

       Under the regulations in effect at the time of the ALJ’s decision

       [a] decision by . . . any other governmental agency about whether you are
       disabled . . . is based on its rules and is not our decision about whether you
       are disabled . . . . We must make a disability . . . determination based on
       social security law. Therefore, a determination made by another agency
       that you are disabled . . . is not binding on us.
20 C.F.R. § 404.1504 (2015).1

       “Although findings by other agencies are not binding on the [Commissioner],

they are entitled to weight and must be considered.” Baca v. Dep’t of Health &

Human Servs., 5 F.3d 476, 480 (10th Cir. 1993) (internal quotation marks omitted);

see also Grogan v. Barnhart, 399 F.3d 1257, 1262-63 (10th Cir. 2005). In both Baca

and Grogan, the ALJ completely failed to discuss the claimant’s VA disability rating.

In this case, by contrast, the ALJ did discuss the VA rating, but found it of little

1
       For claims filed on or after March 27, 2017, the agency has amended its
regulations to state that “we will not provide any analysis in our determination or
decision about a decision made by any other governmental agency or a
nongovernmental entity about whether you are disabled, blind, employable, or
entitled to any benefits. However, we will consider all of the supporting evidence
underlying the other governmental agency or nongovernmental entity’s decision that
we receive as evidence in your claim.” 20 C.F.R. § 404.1504 (2017).

                                              4
probative value because of the differing standards that apply to VA disability

determinations. The question is whether the ALJ provided sufficient consideration to

the VA’s determination.

      In discounting the VA’s rating the ALJ identified three factors that he was

required to analyze, but that the VA had not been required to consider: (1) a

function-by-function assessment of a claimant’s capacities; (2) a determination of

whether the claimant was able to perform his past relevant work; and (3) a

determination of whether the claimant was able to perform work that exists in

significant numbers in the national economy. The ALJ did not explain how his

analysis of these factors in Mr. Green’s case had caused his conclusions about

disability to diverge from the VA’s. But assuming the ALJ’s citation of these factors

provided a sufficient explanation for his rejection of the VA’s disability rating,2

Mr. Green points out a related but more serious deficiency in the ALJ’s analysis.

He argues that in addition to the VA’s ultimate determination about disability, its

disability determination referenced “specific factual finding[s] or evidence” that he

asserts “should have changed the [ALJ’s] decision,” but that the ALJ failed to

consider. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).

      Although “an ALJ is not required to discuss every piece of evidence,” he

“must discuss the uncontroverted evidence he chooses not to rely upon, as well as


2
       The parties cite several unpublished decisions from this circuit on this issue.
Such unpublished panel decisions are not binding on us, see, e.g., Lexington Ins. Co.
v. Precision Drilling Co., 830 F.3d 1219, 1224 (10th Cir. 2016), and we need not
discuss them here.
                                            5
significantly probative evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576

(10th Cir. 2014) (internal quotation marks omitted). This duty seems particularly

significant where another agency has relied on significant, probative evidence as the

basis for its disability determination, and the ALJ has failed even to mention that

evidence. See Grogan, 399 F.3d at 1262 (“Although another agency’s determination

of disability is not binding on the Social Security Administration . . . it is evidence

that the ALJ must consider and explain why he did not find it persuasive.”).

      In determining that Mr. Green’s PTSD was disabling in combination with his

other impairments, the VA cited Mr. Green’s “[n]ear-continuous panic affecting the

ability to function independently, appropriately and effectively”; his difficulties “in

adapting to a worklike setting,” “in adapting to stressful circumstances,” and “in

establishing and maintaining effective work and social relationships”; his

“[o]ccupational and social impairment with reduced reliability and productivity”; and

his panic attacks, chronic sleep impairment, anxiety, suspiciousness, and depressed

mood. Aplt. App., Vol. 3 at 455. To substantiate these conclusions, the VA relied on

the extensive psychological evidence of Mr. Green’s years of treatment for PTSD and

associated anxiety and depression. See id. at 454 (listing evidence relied on by VA).

      The mental-health evidence in this case, on which the VA relied, makes up a

significant portion of the more than 1,700 pages of administrative record. The ALJ

disposed of this evidence in less than a page. See id., Vol. 2 at 17. He mentioned

only one specific piece of direct medical evidence concerning Mr. Green’s mental

state, a progress note from December 9, 2014. The remainder of his discussion of the

                                            6
issue was devoted to the opinions and conclusions of agency non-examining

psychologists and to the results of a consultative psychological examination.

      The ALJ’s discussion of this opinion evidence was hardly exemplary. The

ALJ stated he assigned great weight to the medical opinion of Dr. Gunter, a

non-examining agency psychologist, finding it “consistent with the totality of

evidence.” Id. But to explain the record support for Dr. Gunter’s opinions, the ALJ

provided only a word-for-word (though unattributed) direct quotation from

Dr. Gunter’s own analysis. Compare id. at 17 with id. at 101. Although this may

show the ALJ believed Dr. Gunter’s conclusions were consistent with Dr. Gunter’s

review of the medical evidence, it reflects no independent corroboration of that

analysis from the medical record.

      The ALJ also discussed the results of a consultative psychological examination

of Mr. Green, performed on May 5, 2015, by Kathleen Ward, Ph.D. Notably, the

ALJ’s summary omitted certain significant details of Dr. Ward’s report, including

that Mr. Green was involved in an incident in Afghanistan in which a ten year old

child was accidentally killed, that the incident involved a “half-burnt 10 year old

boy,” id., Vol. 8 at 1698, that he suffers from frequent flashbacks, and that he was

previously hospitalized in Alaska out of concern about suicide risk. The ALJ’s

unattributed quotation from Dr. Gunter’s analysis includes Dr. Gunter’s summary of

Dr. Ward’s report. This summary opines that Mr. Green “was not as anxious as

might be expected if his PTSD was debilitating,” see id. at 17, 101—an observation

not made by Dr. Ward—but it omits Dr. Ward’s specific observations that Mr. Green

                                           7
was “on alert to a limited degree” and that he “dissociate[d]” during discussion of

traumatic events. Id. at 1700.

      Turning to some examples of the medical records the VA relied on but the ALJ

did not discuss, on October 31, 2013, Mr. Green reported that he was “[n]ervous,

mad and agitated all the time,” that he “can’t get along with normal people,” and got

“mad about things that are not big deals.” Id. at 1601 (internal quotation marks

omitted). He stated he was “agitated and stressed most of the time.” Id. (internal

quotation marks omitted). He reported a “flashback” incident at his previous job at a

welding shop when a PVC line exploded and “[t]he sound reminded me of

Afghanistan.” Id. (internal quotation marks omitted). He left the job as a result of

the flashback. See id., Vol. 3 at 505. Mr. Green stated he “jumps at noises, sweats

profusely and finds his heart palpitating at various times.” Id., Vol. 8 at 1601. He

reported he was unable to remain employed because “everything and everyone

agitates me.” Id. at 1601-02 (internal quotation marks omitted). The licensed

clinical social worker who met with him reported that his mood was “depressed” and

“anxious.” Id. at 1602.

      On November 7, 2013, a psychiatrist assessed Mr. Green with “anxiety and

depressive symptoms as well as insomnia.” Id. at 1597. The psychiatrist provided a

detailed description of his symptoms of anxiety and depression, along with his social

difficulties and memory problems. Id. at 1596.

      The record also includes a questionnaire from September 2013 completed by a

VA psychologist who assessed Mr. Green with “[o]ccupational and social

                                           8
impairment” due to his PTSD. Id., Vol. 3 at 504. The questionnaire noted that

Mr. Green had “experienced, witnessed or was confronted with an event that

involved actual or threatened death or serious injury, or a threat to the physical

integrity of self or others,” resulting in “intense fear, helplessness or horror.”

Id. at 505. It described his symptoms, including anxiety and suspiciousness, a

depressed mood, panic or depression, and a chronic sleep impairment. The record

contains an additional questionnaire from November 2, 2011, which noted similar

symptoms. See id., Vol. 5 at 933-44. This, and much more, evidence is present in

the record, relied on by the VA, but not discussed in the ALJ’s decision.

       Although the ALJ was not bound by the VA’s conclusion that Mr. Green’s

combined symptoms were disabling, he was required to give the VA’s determination,

and the evidence underlying it, more than a cursory treatment and a perfunctory

dismissal. Because the ALJ failed to conduct a proper analysis of this evidence, we

remand to the district court with instructions to remand to the Commissioner for

further proceedings in accordance with our explanation of the ALJ’s duties in this

order and judgment.

       2. Consulting Physician’s Opinion

       Mr. Green also argues that the ALJ improperly evaluated and rejected the

opinion of a consultative medical examiner, Dr. Ronald Schatzman. Dr. Schatzman

examined Mr. Green on August 27, 2013. He noted Mr. Green’s complaints and

statements about his medical history, but he does not appear to have reviewed any of

Mr. Green’s medical records. Dr. Schatzman performed a physical examination of

                                             9
Mr. Green, recording essentially normal findings for nearly all of the bodily systems

or functions he examined. See Aplt. App., Vol. 3 at 424-25.

      Dr. Schatzman concluded his report with the following assessment:

             1. Abdominal pain from gunshot wound
             2. Back pain
             3. Hip pain
             4. Depression
             5. PTSD through the VA
             6. This gentleman is significantly impaired from activities of daily
             living.

Id. at 425 (emphasis added).

      The ALJ thoroughly described Dr. Schatzman’s findings, but gave the

above-highlighted statement little weight, reasoning “[t]here is nothing in the

objective evidence to show this opinion would be substantiated.” Id., Vol. 2 at 16.

Although the ALJ’s analysis of Dr. Schatzman’s unexplained statement appears to be

supported by substantial evidence, the ALJ may need to reevaluate his reasoning in

light of the remand we have ordered for reconsideration of the medical evidence.3

      3. Adverse Credibility Finding

      The index to Mr. Green’s opening brief endorses a third issue, whether the

ALJ failed to properly assess his credibility, but he presents no argument on this

issue in the opening brief. “[W]e routinely have declined to consider arguments that

are not raised, or are inadequately presented, in an appellant’s opening brief.”


3
      Mr. Green refers briefly to the ALJ’s alleged failure to weigh the other
medical reports in the record. See Aplt. Opening Br. at 27-28. This inadequately
developed argument has been waived. See Bronson v. Swensen, 500 F.3d at 1099,
1104 (10th Cir. 2007).
                                           10
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). But here, our review of

the ALJ’s decision reveals what appear to be deficiencies in his credibility analysis

that we feel compelled to mention in light of the remand we now order.

      The ALJ opined that Mr. Green’s statements concerning his symptoms were

“not entirely credible for the reasons explained in this decision.” Aplt. App., Vol. 2

at 16. It is unclear which of Mr. Green’s statements the ALJ found not credible. For

example, he did not even mention his testimony about PTSD in his summary of

Mr. Green’s hearing testimony. See id.

      Although the ALJ reported that Mr. Green’s receipt of unemployment benefits

“significantly reduce[d his] credibility,” he immediately stated that his denial

decision was “not based on receipt of unemployment benefits.” Aplt. App., Vol. 2 at

18. It is thus unclear whether and to what extent the ALJ relied on Mr. Green’s

receipt of unemployment benefits in reaching his decision. Perhaps the ALJ meant

that the denial was not based solely on Mr. Green’s receipt of unemployment

benefits. Or perhaps (though this would seem to contradict his previous statement),

he meant that the receipt of unemployment benefits played no role in his decision at

all. Such a significant ambiguity concerning the very important issue of the

claimant’s credibility is troubling. The ALJ would be well advised to reexamine the

basis for his credibility findings on remand.

      The district court’s decision is reversed, and this case is remanded to the

district court, with instructions to remand to the Commissioner for further



                                           11
proceedings in accordance with this order and judgment.


                                         Entered for the Court


                                         Mary Beck Briscoe
                                         Circuit Judge




                                        12
