                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         SEP 29 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    JO LEE EDEN,

                Plaintiff-Appellant,

    v.                                                  No. 97-7011
                                                  (D.C. No. CV-95-257-B)
    JOHN J. CALLAHAN, Acting                            (E.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before TACHA, MCKAY, and BALDOCK, 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. Pursuant to Fed. R. App. P. 43(c), John J.
Callahan, Acting Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in this caption,
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      This order and judgment is not binding precedent, except under the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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff appeals from the district court’s affirmance of the Secretary’s

determination that he is not disabled and is, therefore, not entitled to disability

benefits or supplemental security income benefits. On appeal, plaintiff argues

that the administrative law judge (ALJ) failed to consider properly his mental

impairments in combination with his other impairments to determine his residual

functional capacity (RFC) when the ALJ failed to prepare a Psychiatric Review

Technique (PRT) form. We review the Secretary’s decision to determine whether

the factual findings are supported by substantial evidence in the administrative

record viewed as a whole and whether correct legal standards were applied. See

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

1994). Because we conclude the ALJ failed to apply correct legal standards, we

remand for further proceedings by the ALJ to assess plaintiff’s mental impairment

in accordance with the regulations.




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      Plaintiff has made three prior applications for disability and SSI benefits. 1

In this fourth case, plaintiff alleges disability due to pain in his right shoulder, leg

and ankle, back problems, and limitations imposed by borderline intelligence and

functional illiteracy. After holding an administrative hearing, the ALJ denied

benefits. The ALJ determined that although plaintiff suffers from arthritis of the

right ankle, bursitis of the right shoulder, tenderness in his low back, and an

inability to read and write and he is unable to perform his past work, he retains

the RFC to perform a full range of sedentary work, subject to his inability to read

and write. Accordingly, the ALJ concluded plaintiff is not disabled and denied

benefits at step five of the controlling five-step analysis. See 20 C.F.R.

§§ 404.1520; 416.920.

      Plaintiff argues the ALJ failed to evaluate his mental impairment of

borderline intelligence as required by 20 C.F.R. §§ 404.1520a and 416.920a and

failed to prepare a PRT form. In evaluating a mental impairment allegedly

preventing the plaintiff from working, the ALJ must follow special procedures

and prepare a PRT form. See 20 C.F.R. §§ 404.1520a; 416.920a; Cruse v. United



1
      The ALJ declined to reopen the most recent, August 19, 1993, denial.
Thus, plaintiff must show disability as of August 20, 1993. See Califano v.
Sanders, 430 U.S. 99, 107-08 (1977) (42 U.S.C. § 405(g) does not permit judicial
review of refusal to reopen social security claims); Brown v. Sullivan, 912 F.2d
1194, 1196 (10th Cir. 1990) (federal courts have no jurisdiction to review
Secretary’s refusal to reopen claim for disability benefits).

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

Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1048-49 (10th

Cir. 1993). The ALJ failed to do so. Accordingly, remand is required for the ALJ

to follow the special procedures and prepare the form as required by the

regulations.

      Because the ALJ must reconsider plaintiff’s alleged mental impairment,

we do not consider plaintiff’s argument that the ALJ failed to fully present

plaintiff’s impairments to the vocational expert. After making the appropriate

findings regarding plaintiff’s mental impairment, the ALJ must then determine

whether to obtain further vocational testimony.

      Because the ALJ failed to apply the correct legal standards, the judgment of

the United States District Court for the Eastern District of Oklahoma is

VACATED. The action is REMANDED to the district court with directions to

remand to the Commissioner for further findings by the ALJ, who is to reconsider

the disability determination after properly assessing plaintiff’s mental impairment.

                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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