                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 24, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    JAMES E. MUSHERO,

                Plaintiff-Appellant,

    v.                                                    No. 09-5164
                                                (D.C. No. 4:08-CV-00136-TLW)
    MICHAEL J. ASTRUE, Commissioner                       (N.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



         James E. Mushero appeals the district court’s order affirming the

Commissioner’s denial of his Title II application for a period of disability and

disability benefits and his Title XVI application for supplemental security

income. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Because the Commissioner erred in assessing Mr. Mushero’s residual functional

capacity (RFC), and therefore the denial of benefits is not supported by

substantial evidence, we reverse and remand for further proceedings.

                                   Background

      Mr. Mushero claims disability resulting from HIV infection, back and neck

problems, depression, and other impairments. In evaluating his application for

benefits, the ALJ applied the familiar five-step benefits determination process.

See generally Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). At step one,

he found that Mr. Mushero had not engaged in substantial gainful activity since

his amended alleged onset date (December 17, 2003). At step two, the ALJ

determined that he had several severe impairments (HIV infection, early

degenerative disk disease of the lumbar spine with mild scoliosis, degenerative

disk disease of the cervical spine without herniation, and asymptomatic bilateral

inguinal hernias). The ALJ further concluded that other alleged impairments

(hyperlipidemia, substance abuse, and depression) were not severe.

      At step three, the ALJ found that none of the impairments or a combination

of impairments met or equaled any of the listed impairments in 20 C.F.R. Part

404, Subpart P, Appendix 1. The ALJ then assessed Mr. Mushero’s RFC, and, at

step four, determined that (1) he could perform a range of sedentary work so long

as he avoided exposure to infections, but (2) he could not perform his past

relevant work as a soldier and a truck driver. Concluding that his RFC allowed

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him to perform a significant number of jobs in the national economy, such as

order clerk and assembler, the ALJ found Mr. Mushero not disabled at step five

and denied his application for benefits. The Appeals Council denied review,

making the ALJ’s decision the final agency decision. The district court affirmed,

and Mr. Mushero now appeals to this court.

                                     Analysis

      “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.” Doyal v. Barnhart, 331 F.3d 758, 760

(10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. It requires more than a

scintilla, but less than a preponderance.” Wall, 561 F.3d at 1052 (quotation

omitted). “Although we will not reweigh the evidence or retry the case, we

meticulously examine the record as a whole, including anything that may

undercut or detract from the ALJ’s findings in order to determine if the

substantiality test has been met.” Id. (quotations omitted).

      Mr. Mushero argues that the Commissioner did not satisfy his burden at

step five, because the hypothetical questions submitted to the vocational expert

(VE) did not “relate with precision” all of Mr. Mushero’s impairments,

particularly his depression. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.

1991) (quotation omitted). Mr. Mushero also contends that the ALJ erred in

                                        -3-
weighing the opinion of his treating psychiatrist and in evaluating his credibility.

The first argument is dispositive of this appeal.

      When confronted with a claim of mental impairment, the ALJ must apply a

“special technique.” See 20 C.F.R. §§ 404.1520a, 416.920a. Under this

technique, once a claimant has established a medically determinable mental

impairment, the ALJ must “rate the degree of functional limitation resulting from

the impairment(s).” Id. §§ 404.1520a(b)(2), 416.920a(b)(2). The ALJ does this

by rating the claimant’s limitations in “four broad functional areas,” which are

“[a]ctivities of daily living; social functioning; concentration, persistence, or

pace; and episodes of decompensation.” Id. §§ 404.1520a(c)(3), 416.920a(c)(3).

The ALJ then uses the functional-limitation ratings to determine the severity of

the mental impairment(s). Id. §§ 404.1520a(d), 416.920a(d). To document the

application of the special technique, the ALJ’s “written decision must incorporate

the pertinent findings and conclusions based on the technique. . . . The decision

must include a specific finding as to the degree of limitation in each of the

functional areas . . . .” Id. §§ 404.1520a(e)(2), 416.920a(e)(2).

      It is clear that Mr. Mushero’s depression was a medically determinable

mental impairment. The ALJ, however, did not follow the special technique. He

recognized the existence of an impairment, but he assessed its severity without

first making the required findings regarding limitations in each of the four broad

functional areas. He discounted the opinions of the treating psychiatrist, giving

                                          -4-
her assessments of moderate and/or marked limitations “very little weight.” 1

Admin. R. at 25. But he did not discuss the only other medical opinion

concerning mental limitations, which was an agency psychiatrist’s assessment that

Mr. Mushero had mild limitations on social functioning and on maintaining

concentration, persistence, or pace. See id. at 353. Ultimately, the decision does

not reflect what limitations, if any, the ALJ found in connection with the

depression.

      The failure to follow the special technique underlies Mr. Mushero’s

argument that the ALJ failed to include any mental limitations in the hypothetical

questions posed to the VE. Because the ALJ never made any findings regarding

functional limitations, there is no basis to determine what limitations should have

been included in the hypothetical questions. And we cannot consider the error

harmless. Even if an impairment is not severe, it does not become irrelevant. All

medically determinable impairments, including non-severe impairments, must be

taken into account in assessing a claimant’s RFC. See 20 C.F.R.

§§ 404.1545(a)(2), 416.945(a)(2). “While a ‘not severe’ impairment(s) standing

alone may not significantly limit an individual’s ability to do basic work


1
      In light of our decision to remand, we need not separately address
Mr. Mushero’s argument about the weight the ALJ gave to the treating
psychiatrist’s assessments. We note, however, that it is not clear that the record
supports each reason the ALJ gave for discounting those assessments. On
remand, the ALJ should ensure that any reasons for discounting the treating
psychiatrist’s opinion are supported in the record.

                                        -5-
activities, it may–when considered with limitations or restrictions due to other

impairments–be critical to the outcome of a claim.” Soc. Sec. Rul. 96-8P,

1996 WL 374184, at *5 (July 2, 1996). “Testimony elicited by hypothetical

questions that do not relate with precision all of a claimant’s impairments cannot

constitute substantial evidence to support the [Commissioner’s] decision.”

Hargis, 945 F.2d at 1492 (alteration and quotation omitted); see also Evans v.

Chater, 55 F.3d 530, 532 (10th Cir. 1995) (stating that the ALJ’s hypothetical

questions “must include all (and only) those impairments borne out by the

evidentiary record”).

      The Commissioner suggests that the ALJ found no work-related limitations

from Mr. Mushero’s depression, but this conclusion is not supported by the

record. The ALJ only went so far as to find no “significant” limitations. See

Admin. R. at 21 (“[T]he record reflects that the claimant’s symptoms have not

significantly interfered with his daily activities[.]”); see also id. at 25 (“[T]he

record does not reflect that the claimant’s treating or examining physicians have

placed any significant limitations or restrictions on his activities.”). These

statements track the definition of a non-severe impairment, see 20 C.F.R.

§§ 404.1521(a), 416.921(a), but they are not the same as explicitly finding no

limitations. Further, the agency psychiatrist assessed limitations. The ALJ did

not discuss this opinion, and he neither included the assessed limitations in the

RFC determination and the hypothetical questions nor explained why he rejected

                                           -6-
them. Under these circumstances, we cannot conclude that the agency applied the

correct legal standards or that the decision is supported by substantial evidence. 2

                                     Conclusion

      The judgment of the district court is REVERSED and REMANDED with

instructions to remand to the Commissioner for further proceedings.

                                                     Entered for the Court


                                                     Wade Brorby
                                                     Senior Circuit Judge




2
       Mr. Mushero also complains that the ALJ did not include a reaching
limitation in the hypothetical question, even though the medical expert testified to
the existence of a reaching limitation. Because the testimony he relies upon
appears to be an inaccurate summary of prior testimony, we do not consider the
omission of a reaching limitation to be reversible error. But the ALJ may address
this issue on remand as appropriate.

                                          -7-
