                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    January 7, 2008
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court




    CARL E. SHIVEL,

                Plaintiff-Appellant,

    v.                                                    No. 07-5093
                                                   (D.C. No. 06-CV-82-FHM)
    MICHAEL J. ASTRUE,                                    (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.



         Carl Shivel appeals from an order of the district court affirming the

Commissioner’s decision to grant disability insurance benefits as of August 1,

2001, rather than his originally alleged onset date of December 1, 1999.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we

reverse the district court’s judgment and remand for further proceedings.

                                         I.

      Mr. Shivel filed his application for benefits in November of 2001. He

claimed disability since December 1, 1999, from degenerative disc disease of the

lumbar and cervical spine, paranoid schizophrenia, depression, anxiety, and a

personality disorder. After two hearings before an Administrative Law Judge

(ALJ), Mr. Shivel apparently was told by the ALJ that his application would be

granted if he amended his alleged onset date to March 13, 2002. Mr. Shivel

acceded, and on August 21, 2004, his application was approved using the

amended onset date.

      Mr. Shivel subsequently sought review by the Appeals Council, alleging

that the ALJ had been biased and coerced him into amending his onset date by

purposefully prolonging the evaluation process. The Appeals Council agreed to

review Mr. Shivel’s application, rejected the ALJ’s pertinent findings, and

concluded at step five of the five-step sequential evaluation process, see

20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

(explaining the five-step process), that Mr. Shivel was entitled to benefits as of

August 1, 2001. The Appeals Council also found no specific evidence of bias.

Mr. Shivel appealed to the district court, but a magistrate judge acting with the

consent of the parties affirmed the Appeals Council’s decision.

                                         -2-
      Mr. Shivel then brought his appeal here, maintaining that benefits should

have been granted from his originally alleged onset date, December 1, 1999,

rather than August 1, 2001. In taking this position, Mr. Shivel argues that the

Appeals Council (1) failed to accurately assess his residual functional capacity

(RFC); (2) improperly relied upon the medical-vocational guidelines (grids) to

find him non-disabled; (3) wrongfully discounted his credibility; and (4) ignored

evidence indicating that the ALJ was biased.

                                         II.

      We review the Commissioner’s decision to determine whether it is

supported by substantial evidence in the record and to evaluate whether he

applied the correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261

(10th Cir. 2005). The Appeals Council’s decision is the final agency decision for

purposes of our review. See Fierro v. Bowen, 798 F.2d 1351, 1353-54 (10th Cir.

1986). In conducting our review, we neither reweigh the evidence nor retry the

case, but “examine the record as a whole, including anything that may undercut or

detract from the [Appeals Council’s] findings in order to determine if the

substantiality test has been met.” Grogan, 399 F.3d at 1262.

                               A. RFC Assessment

      We first consider whether the Appeals Council properly assessed

Mr. Shivel’s RFC. The Appeals Council concluded that Mr. Shivel retained the

ability to perform light, unskilled work before August 1, 2001, but not after.

                                         -3-
With regard to his physical impairments, the Appeals Council noted the findings

of Dr. Subrahim Krishnamurthi, who indicated that in February of 2002,

Mr. Shivel suffered from mild arthalgia of the back and right shoulder,

hypertension, and a history of depression, but nevertheless could perform light to

medium work. The Appeals Council recognized that this latter finding was

consistent with assessments done by agency physicians who reported that

Mr. Shivel retained the capacity for nearly the full range of medium work. The

Appeals Council also examined the opinion of Dr. William Stolzer, who believed

that Mr. Shivel could return to light work in February of 2001, as well as that of

Dr. Moses Owoso, who at the same time found that Mr. Shivel was alert and

oriented, his dexterity for gross and fine manipulations were normal (as were his

strength, reflexes, and grip), and that he had no sensory deficits. After reviewing

this evidence, the Appeals Council concluded that Mr. Shivel’s physical

limitations did not preclude him from light work before August 1, 2001. This

finding is supported by substantial evidence. To the extent the Appeals Council

did not discuss a diagnostic showing disc degeneration or reports from Dr. Stolzer

and Dr. Owoso indicating his slow gait and limited cervical and lumbar range of

motion, it is clear from the decision that this evidence was considered, even if not

discussed. See Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996).

      We pause, however, at the Appeals Council’s treatment of Mr. Shivel’s

mental limitations, particularly its failure to properly account for limitations

                                          -4-
recorded on a psychiatric review technique (PRT) form. The regulations require

the agency to evaluate a claimant’s mental impairments that allegedly prevent him

from working and document its findings on a PRT form. 20 C.F.R. § 404.1520a;

Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996). To this end, agency

physician Sally Varghess completed a PRT form, noting that Mr. Shivel

experienced moderate restrictions in his activities of daily living and moderate

difficulties in maintaining social functioning, concentration, persistence, and

pace. The Appeals Council was then required to discuss these findings and

explain why the impairments failed to satisfy the criteria of a listed impairment.

See 20 C.F.R. § 404.1520a(d)(2).

      But the Appeals Council never discussed the PRT form or the limitations

recorded on it. Instead, the Appeals Council acknowledged that Mr. Shivel may

have had a mental impairment before August 2001, but concluded – without

explanation – that this impairment had no more than a minimal impact on his

ability to function. Although the Appeals Council noted Dr. Dennis Rawlings’

testimony that Mr. Shivel’s mental impairments did not satisfy a listed

impairment, it failed to mention that this statement contradicted his own earlier

testimony that Mr. Shivel did, in fact, meet a listing. The Appeals Council also

failed to mention that Dr. Rawlings’ testimony had been expressly stricken by the

ALJ. Thus, the Appeals Council’s decision lacks any explanation of how it




                                         -5-
determined the impact Mr. Shivel’s mental impairments had on his functionality

either before or after August 1, 2001. See id. § 404.1520a(e)(2).

      The Commissioner insists there was no need to discuss the PRT findings

because there was no evidence of mental impairment prior to August 1, 2001.

This is a post-hoc attempt to justify the agency’s deficient analysis. “[W]hile [the

Commissioner] is not required to discuss every piece of evidence in the record, he

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

significantly probative evidence he rejects.” Threet v. Barnhart, 353 F.3d 1185,

1190 (10th Cir. 2003) (quotation omitted).

      Here, the Appeals Council not only failed to discuss the PRT form, but it

completely omitted from its decision any discussion of Dr. John Hickman’s

July 16, 2003 exam. During this exam, Mr. Shivel revealed that he had been

diagnosed with bipolar disorder in 1997, previously experienced suicidal thoughts

and hallucinations, and presently suffered manic episodes, delusional thoughts,

and “obsessive ideation about the death of his father and the burn injury to his

daughter.” Aplt. App., Vol. III at 376. Dr. Hickman’s report indicated that

Mr. Shivel was in an “extreme degree of psychological turmoil,” and suffered

“[d]ifficulties in concentration and attention, memory deficits, and poor

judgment.” Id. It also suggested that Mr. Shivel was “severely and chronically

maladjusted if not actually psychotic.” Id. Dr. Hickman’s diagnoses included




                                         -6-
bipolar disorder, paranoid type delusional disorder, pain disorder, borderline

personality disorder, and severe difficulties with mood control.

      Additionally, other evidence directly relates to the relevant period before

August 1, 2001. See Baca v. Dep’t of Health & Human Servs., 5 F.3d 476, 479

(10th Cir. 1993) (explaining that medical records that post-date the relevant time

frame may be considered if they relate back to the relevant time frame). Indeed, a

progress note from the Veteran’s Administration dated October 4, 2001, indicates

that Mr. Shivel had been experiencing “progressive paranoia, irritability,

difficulty concentrating, insomnia, [and] auditory and visual hallucinations” since

as early as February of 2001. Aplt. App., Vol. II at 235. And an agency

interviewer observed in November of 2000 that Mr. Shivel had difficulty

concentrating and answering questions as evidenced by his “problems

remembering information about his physicians” and “confus[ion] on exact dates.”

Id. at 132. Yet there is no indication that the Appeals Council considered any of

this evidence.

      “When a record contains evidence of a mental impairment that allegedly

prevented claimant from working, the [Commissioner] is required to follow the

procedure for evaluating the potential mental impairment.” Andrade v. Sec’y of

Health & Human Servs., 985 F.2d 1045, 1048 (10th Cir. 1993) (quotation

omitted). Clearly, here, there was evidence of mental impairment. Therefore, it

was incumbent upon the Appeals Council to document the evidence and discuss

                                         -7-
how it impacted Mr. Shivel’s functionality. Because this was not done, the case

must be remanded to the Commissioner for further consideration. On remand, the

Commissioner shall discuss both the evidence relied on and rejected to determine

Mr. Shivel’s mental RFC, as well as the weight given to any source opinion and

the reasons for the weight assigned, see 20 C.F.R. § 404.1527(d).

                                      B. Grids

      We next consider whether the Appeals Council correctly applied the grids,

see 20 C.F.R. § 404, subpt. P, App. 2, to find Mr. Shivel non-disabled prior to

August 1, 2001. “[T]he grids cannot be applied conclusively if a claimant has

nonexertional limitations that significantly limit his ability to perform the full

range of work in a particular RFC category on a sustained basis.” Williams,

844 F.2d at 752 (quotation omitted). The grids may be applied, however, if a

claimant’s nonexertional limitations do not further limit his ability to perform

work at the applicable exertional level. Eggleston v. Bowen, 851 F.2d 1244, 1247

(10th Cir. 1988). Here, if a proper evaluation of Mr. Shivel’s mental impairments

reveals nonexertional limitations that impacted his functionality during the

relevant time period, the grids may not be applied conclusively.

                                   C. Credibility

      Mr. Shivel next contends the Appeals Council improperly discredited the

testimony of he and his wife. “Credibility determinations are peculiarly the

province of the finder of fact, and we well not upset such determinations when

                                          -8-
supported by substantial evidence. Nevertheless, findings as to credibility should

be closely and affirmatively linked to substantial evidence and not just a

conclusion in the guise of findings.” McGoffin v. Barnhart, 288 F.3d 1248, 1254

(10th Cir. 2002) (quotations and alteration omitted).

      In evaluating Mr. Shivel’s credibility, the Appeals Council examined his

wife’s testimony, but did not refute or otherwise discredit it. The Appeals

Council also noted that in February 2000, Mr. Shivel reported to Dr. Stolzer that

he had “done well,” had “not sought any medical attention,” and had “seen [a]

chiropractor who did adjustments.” Aplt. App., Vol. II at 199. The Appeals

Council referenced Dr. Stolzer’s opinion that Mr. Shivel was capable of returning

to work in February of 2001 and Dr. Owoso’s medical findings. It then

summarized “[t]he rather benign physical findings before March 12, 2002,

[Mr. Shivel’s] mostly conservative treatment, the opinions of various doctors who

ha[d] treated and examined him, the opinions of his [wife], and his daily

activities,” and concluded that this evidence did not support his allegations of

disabling impairment on December 1, 1999. Id. at 13. Given this discussion of

the evidence and our standard of review, we conclude that the Appeals Council

adequately linked its credibility findings to substantial evidence in the record.

                                       D. Bias

      We lastly consider Mr. Shivel’s contention that the ALJ was biased against

him. The Appeals Council found no specific evidence of bias and neither do we.

                                          -9-
The record shows that Mr. Shivel received a full and fair opportunity to develop

the record and present evidence. See Puckett v. Chater, 100 F.3d 730, 734 (10th

Cir. 1996). Although the Appeals Council acknowledged that the ALJ failed to

adequately justify his exclusion of Dr. Rawlings’ testimony, this isolated

evidentiary ruling, while troubling, is not substantial evidence of bias.

Mr. Shivel’s contention that the ALJ purposefully prolonged the administrative

process so as to coerce him into amending his onset date is mere speculation.

And we find no record support for Mr. Shivel’s assertion that the ALJ exhibited a

pattern of bias against claimants with histories of substance abuse. Accordingly,

we must reject his allegations of bias and deny his request to direct the

Commissioner to assign his case to a different ALJ on remand.

                                         III.

      The judgment of the district court is REVERSED. The case is

REMANDED to the district court with directions that it be remanded to the

Commissioner for further proceedings consistent with this order and judgment.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




                                         -10-
