                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 2 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    PAUL HIERSTEIN,

                Plaintiff-Appellant,

    v.                                                  No. 96-6233
                                                  (D.C. No. CIV-94-1699-T)
    SHIRLEY S. CHATER,                                  (W.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.




*
      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. Accordingly, the district court substituted
Shirley S. Chater, Commissioner of Social Security, for Donna E. Shalala,
Secretary of Health and Human Services, as the proper defendant in this action.
Although the caption reflects this substitution, in the text we continue to refer to
the Secretary because she was the appropriate party at the time of the underlying
decision.
**
      This order and judgment is not binding precedent, except under the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.
      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 appeals from a district court order affirming the Secretary’s

decision to deny social security benefits. The Secretary conceded that plaintiff’s

residual functional capacity (RFC) for sedentary work, limited by his inability to

deal with the public or handle stress, precluded a return to past work. However,

based on vocational expert testimony, the Secretary determined plaintiff could

perform other jobs in the national economy and, thus, found him not disabled at

step five of the controlling analysis. See Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988). “We review the Secretary’s decision to determine

whether her factual findings are supported by substantial evidence in the record

viewed as a whole and whether she applied the correct legal standards.”

Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.

1994). We reverse and remand for further proceedings in light of cumulative

legal errors undermining the analysis of plaintiff’s mental impairment.

                                         A

      In November 1988, plaintiff was hospitalized in Missouri under suicide

precautions for nearly two weeks after overdosing on medication. Upon


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discharge, he was diagnosed with dysthymic disorder, adjustment disorder with

depressed mood, suspected obsessive compulsive disorder, personality disorder,

and a history of depression and anxiety. His prognosis guarded, he was placed on

psychotropic medication and strongly urged to contact a local mental health center

for follow-up care in San Antonio, where he planned to relocate. Progress notes

from a Veterans Administration (VA) medical center in San Antonio show

continuing major depression and increasing medication in early 1989. After

moving again, plaintiff sought treatment at another VA facility in Oklahoma. The

voluminous record generated thereafter reflects chronic depression, anxiety, and

personality problems treated by weekly therapy and medicinal intervention

through the date of the hearing decision in December 1993. Indeed, in an October

1993 statement, submitted on plaintiff’s administrative appeal, plaintiff’s treating

physician, Dr. Florida Serquina, summarized her assessment of plaintiff as

“markedly depressed [with] suicidal [and] homicidal ideation” and flatly

concluded “[h]e is unable to obtain a job because of recurrent depression [and]

marked anxiety.” App. II at 57. 1




1
     Although the Appeals Council discussed other evidence presented on
administrative appeal, it did not even acknowledge this treating opinion.

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      The only psychiatric review technique (PRT) and mental RFC forms for

plaintiff prepared by professional psychologists 2 reflect: (1) moderate limitation

on daily activities; (2) moderate limitations on understanding, remembering, and

carrying out detailed instructions (but no such limitations for very short and

simple instructions); (3) marked limitation on appropriate interaction with the

general public; (4) moderate limitation on appropriate interaction with

supervisors, coworkers, and peers; and (5) deficiencies of concentration,

persistence, or pace “often” resulting in failure to complete tasks in a timely

manner. App. II at 112-24. The mental RFC concludes with this narrative

elaboration: “Can perform simple to mod. complex tasks only. Cannot tolerate

involvement [with] public. Can relate adequately to co-workers/supervisors if

contact is minimal [and] superficial.” Id. at 114.

      At the Secretary’s direction, Dr. William S. Davies examined plaintiff on

April 21, 1992. Dr. Davies diagnosed “a moderate depression with a possible

schizo-affective difficulty which appears to be in fair control.” Id. at 321. His

only present vocational finding was the qualified judgment that plaintiff’s

“[a]bility to reason or make occupational, personal or social adjustments . . . .

appear to be generally intact at least for generally simple situations.” Id.


2
      The PRT and mental RFC assessment were prepared for the Secretary by
Stephen J. Miller, PhD., on May 4, 1992. The mental RFC was “affirmed as
written” by a second professional on November 13, 1992. App. II at 114.

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                                          B

      The ALJ completed his own PRT form and attached it to his decision. The

ALJ’s assessments deviate from those recorded on the professional PRT form

noted above, which he did not discuss. Indeed, the ALJ’s decision, which simply

recites that a PRT form “has been attached to this decision and is made a part

hereof,” id. at 70, does not tie any evidentiary explanation to his contrary findings

that plaintiff had only “slight” restrictions on daily activities and “seldom”

suffered deficiencies of concentration, persistence or pace. Compare id. at 69-70

with id. at 75.

      Indeed, the ALJ’s general discussion of the psychological evidence was

extremely stunted. From plaintiff’s five-year treatment record, reflecting a severe

chronic condition naturally fluctuating with external pressures, the ALJ selected

but two isolated, marginal, and transitory items to minimize plaintiff’s mental

impairment: “a mental status examination of October 1991 negative for suicidal

ideations and the claimant noting to his social worker in 1992 that he was starting

to feel better about his future.” Id. at 69-70 (internal quotation omitted). The

only other evidence the ALJ mentioned was the consultative report submitted by

Dr. Davies, whose qualified vocational assessment regarding “simple situations”

the ALJ recited as contraindicative of functional impairment. See id. at 70.




                                         -5-
      The ALJ found plaintiff capable of performing sedentary work, excluding

occupations “involving contact with the general public” and those imposing more

than “low stress.” Id. at 71. Limited co-worker/supervisor interaction and

substantive job simplicity, both called for without dissent by psychological

professionals in this case, were not expressly addressed by the ALJ. More

importantly, the ALJ did not include either of these restrictive conditions in the

decisive hypothetical posed to the vocational expert. See id. at 100 (inquiring

about examples of “sedentary work that would not involve directly dealing with

the public, and that also would be of the least amount of stress--be unstressful or

have little stress. That’s it. That’s all.”).

                                            C

      Our comparison of the record with the ALJ’s analysis reveals several

interrelated legal errors. 3 First of all, the ALJ’s choice of two superficially

favorable notations out of a five-year treatment record, downplaying the severity

of a chronic mental impairment inherently varying with the vicissitudes of the



3
       The Secretary notes that some matters raised on appeal, including the PRT
issue discussed in text above, have not been urged consistently throughout the
proceedings. However, given the ALJ’s substantial misuse of the PRT form, and
its inseparability from plaintiff’s other, preserved challenges to the psychological
evidence underlying the finding of nondisability, we deem it appropriate to reach
and correct that error. In contrast, we do not consider the merits of plaintiff’s
belated, collateral arguments regarding the Appeals Council’s duty to develop the
record. See generally Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).

                                            -6-
patient’s life, reflects the kind of misleading selective inquiry courts have decried

on numerous occasions. See, e.g., Sisco v. United States Dep’t of Health &

Human Servs., 10 F.3d 739, 743 (10th Cir. 1993); Teter v. Heckler, 775 F.2d

1104, 1106 (10th Cir. 1985); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.

1984); Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983). Second,

compounding this general problem, the Appeals Council specifically failed to

address Dr. Serquino’s finding of psychological disability presented on

administrative appeal. The limited, and partly corroborative, consulting opinion

from Dr. Davies noted by the ALJ could not justify ignoring Dr. Serquino’s

treating opinion. See Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996); see,

e.g., Washington v. Shalala, 37 F.3d 1437, 1440-41 (10th Cir. 1994) (consulting

psychiatrists’ observation of claimant’s relative stability under nonstressful

circumstances did not undercut treating physicians’ opinions about inability to

cope with stress of handling people and demands in work setting). Third, in light

of the contrary evidence, particularly the findings recorded on the professional

PRT and mental RFC forms, the ALJ’s failure to explain his PRT assessment was

both procedurally and substantively erroneous. See Cruse v. United States Dep’t

of Health & Human Servs., 49 F.3d 614, 617-18 (10th Cir. 1995); see, e.g.,

Washington, 37 F.3d at 1441-42 (ALJ erred procedurally in failing “to discuss the

evidence on which he relied in completing the PRT form,” and substantively in


                                         -7-
that “his conclusions on the form . . . differed from the opinions of [the treating

physicians] as well as the opinions of the agency’s medical consultants who

completed PRT forms”). Fourth, the ALJ’s hypothetical to the vocational expert

improperly omitted specific nonexertional limitations, regarding job simplicity

and restricted interaction with co-workers/supervisors, that were uncontradicted

in the medical record. See Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995);

see, e.g., Cruse, 49 F.3d at 619 & n.5 (constellation of mental limitations

improperly oversimplified by ALJ in hypothetical regarding “low stress”).

      Although plaintiff does not challenge the Secretary’s step-one finding that

his intermittent employment in 1990-91 constituted substantial gainful activity

precluding disability for that period, he does argue that his sporadic and

consistently unsuccessful vocational efforts otherwise evidence an inability to

obtain and hold a job for step-five purposes. While we need not express any final

opinions on these matters, which may be revisited and resolved differently on

remand, we do note that reliance on ineffectual job searches and abortive work

attempts as evidence of nondisability--suggested here by the ALJ’s comment that

even plaintiff’s unsuccessful employment efforts “reflect negatively upon the

claimant’s general credibility,” App. II at 68--is contrary to controlling law. See,

e.g., Miller, 99 F.3d at 978; Washington, 37 F.3d at 1442-43; cf. Jozefowicz v.

Heckler, 811 F.2d 1352, 1357-58 (10th Cir. 1987). Indeed, the problems


                                          -8-
encountered by plaintiff in these attempts, particularly stress-related difficulties

and personal conflict with supervisors, appear to reflect the real-world impact of

his recognized psychological impairments.

      Finally, plaintiff objects to the incompleteness of the evidentiary record.

Specifically, in addition to his contentions regarding inadequate development at

the administrative level, see supra note 3, plaintiff complains that the district

court exacerbated the problem by erroneously refusing to remand the case

pursuant to 42 U.S.C. § 405(g) for consideration of additional materials, including

a 100% disability rating by the VA made retroactive to 1990. See Baca v.

Department of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993)

(“Although findings by other agencies are not binding on the Secretary, they are

entitled to weight and must be considered.” (quotation omitted)). To warrant a

§ 405(g) remand, “we normally must determine that the new evidence would have

changed the Secretary’s decision had it been before [her].” Hargis v. Sullivan,

945 F.2d 1482, 1493 (10th Cir. 1991). “Because we remand this case for further

evaluation of the claimant’s combined nonexertional impairments, however, we

believe it appropriate that the Secretary initially determine whether th[is]

additional [evidence] significantly alter[s] [her] initial determination.” Id. Our

remand also provides plaintiff an opportunity to correct for himself the asserted

gaps in the administrative record.


                                          -9-
      The judgment is REVERSED and the cause is REMANDED to the district

court with instructions to remand, in turn, to the Secretary for further proceedings

consistent herewith.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




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