                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 4 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JANET K. STEPHENS,

                Plaintiff-Appellant,

    v.                                                   No. 97-6090
                                                   (D.C. No. CIV-94-1361-L)
    KENNETH S. APFEL, Commissioner                       (W.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before PORFILIO, KELLY, and HENRY, Circuit Judges.




         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.



*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff Janet K. Stephens appeals from a district court order affirming the

denial of social security benefits. The administrative law judge found she “has

severe spinal disease with chronic neck and back pain, thoracic outlet syndrome,

degenerative disease of her right knee, asthma, gastrointestinal disorders, and

mental disorders.” Appellant’s Appendix (App.) A at 23. Holding that these

conditions necessitate sedentary work “which does not require her to squat, stoop,

kneel, pivot, or climb,” the ALJ concluded she cannot return to past work. Id.

However, based on expert vocational testimony, the ALJ found plaintiff could

perform other jobs, specifically telephone solicitor and timekeeper, see id. at

22-23, and held she was not disabled at step five of the controlling analysis. See

generally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). We review

this decision to determine whether it is supported by substantial evidence and

adheres to applicable legal standards. See Berna v. Chater, 101 F.3d 631, 632

(10th Cir. 1996). For reasons explained below, we reverse.

      Among numerous assignments of error, plaintiff contends the ALJ failed

properly to consider, and include in the dispositive hypothetical inquiry posed to

the vocational expert, significant mental limitations arising from her affective

(depression) and anxiety disorders. We agree. Our comparison of the record with

the ALJ’s analysis of these impairments reveals several interrelated errors. For a

full understanding of these, it will be useful to provide some background,


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beginning with an earlier ALJ decision in this same proceeding that was vacated

on administrative review.

      The ALJ issued that decision--the second in this proceeding begun over

eight years ago--in October 1992, following an earlier administrative remand. In

the Psychiatric Review Technique (PRT) attached to the decision, the ALJ noted a

“moderate” limitation on social functioning, see App. B at 445, borne out by the

psychiatric record generally and the only pertinent professional PRT therein, see,

e.g., id. at 341-43 (report diagnosing “moderate” depression and anxiety, and

noting daily treatment with prozac and valium); id. at 256-264 (PRT noting

affective and anxiety disorders and assessing “moderate” limitation on social

functioning). Accordingly, in his decision, the ALJ qualified plaintiff’s sedentary

work capacity with a nonexertional restriction regarding public interaction. See

id. at 439. Although the same materials indicated plaintiff “often” suffered

concentration/persistence difficulties as well, id. at 263, and consequently was

“markedly limited” in her ability to understand, remember, and sustain attention

for anything but short and simple instructions, id. at 252, the ALJ himself found

such difficulties were only “seldom” a problem, id. at 446, and did not recognize

any limitation in this regard, see id. at 439.

      After this decision was reversed, the ALJ conducted further proceedings

before issuing the January 27, 1994 decision under review. Additional


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psychological evidence pointed only to a deterioration in plaintiff’s condition.

The one new mental evaluation, conducted by plaintiff’s treating psychiatrist, Dr.

J. E. McCalister, see App. C at 632-35, bluntly stated: “[T]here is no question in

my mind but what her depression is much more severe than it was . . . [and that]

she is totally and permanently disabled and unable to engage in any substantial

gainful employment.” App. B at 494. Noting “marked” limitations in social

functioning, “constant” deficiencies in concentration/persistence, and “continual”

episodes of decompensation or deterioration in work-like settings, id. at 504, the

psychiatrist concluded plaintiff met the step-three listings for disability on the

basis of mental impairment alone, see id. at 497.

      The psychiatrist further elaborated on the nature of plaintiff’s impairment,

specifically as to work related activities, by rating as “poor/none” her capacities

to interact with the public, co-workers, and supervisors; maintain attention and

concentration; follow complex, or just detailed, job instructions; deal with work

stresses; and behave in an emotionally stable manner. Id. at 495-96. He rated as

only “fair” 1 such basic capacities as execution of simple instructions and ability to

follow work rules. Id. Independent of his conclusion that step-three listings were


1
       In this context, a “fair” rating “is essentially the same as the listing
requirement’s definition of the term ‘marked,’” which indicates “a degree of
limitation . . . such as to seriously interfere with the ability to function
independently, appropriately, and effectively.” Cruse v. United States Dep’t of
Health & Human Servs., 49 F.3d 614, 618 (10th Cir. 1995) (quotations omitted).

                                          -4-
met, these specific findings would, in conjunction with plaintiff’s sedentary RFC,

dictate a determination of disability at step five in any event. See Soc. Sec. Rul.

96-9p, 1996 WL 374185 at *9 (“A substantial loss of ability to meet any one of

several basic work-related activities [including understanding, remembering, and

carrying out simple instructions, and responding appropriately to supervision and

co-workers] . . . will substantially erode the unskilled sedentary occupational base

and would justify a finding of disability.”).

      The ALJ did not explicitly reject this professional evaluation. He did,

however, completely ignore all of its findings to conclude that “except for the

claimant’s subjective report [of symptoms] . . . the examination did not show

considerable reductions in her ability for cognitive, mental, and emotional

functions.” App. A at 21 (emphasis added). This remarkable conclusion is made

possible only by the ALJ’s tacit equation of the psychiatrist’s findings with

plaintiff’s subjective complaints, 2 as if the former merely parroted the latter

without any medical judgment/assessment intervening. This unstated assumption

is unwarranted as a professional medical matter and unsupported by any unique

facts specific to this case.


2
      The ALJ discounted plaintiff’s credibility for lack of evidence that she had
“complained of or sought treatment for [the] mental symptoms” related during her
1993 examination. App. A at 21. Actually, the record reflects continuous
treatment--including a daily regimen of valium and prozac--for depression and
anxiety, with references to her variable but often severe symptoms throughout.

                                          -5-
      Instead of relying on these extensive findings from plaintiff’s treating

psychiatrist, the ALJ looked to a report from plaintiff’s consultative examination

in September 1989, which in his view “display[ed] good to excellent mental,

cognitive, and emotional functions.” Id. at 20. There are many problems with

this approach, beyond the obvious objection to the use of a stale consulting report

in preference to a treating physician’s current assessment. The 1989 report could

not, as a logical matter, contradict the later medical conclusion that plaintiff’s

condition had worsened in the intervening four years. Moreover, this narrative

report did not contain any specific findings to compare with those in the detailed

1993 evaluation. And, as noted above in connection with the second ALJ

decision, the only pertinent medical conclusions in the 1989 report, namely its

diagnoses of “moderate” affective and anxiety disorders, revealed conditions that

would support nonexertional restrictions; it did not reflect “good to excellent”

functioning. Finally, there was an intervening psychological assessment that the

ALJ did not address--the professional PRT prepared in February 1990 (also cited

above in connection with the second ALJ decision). The findings therein, that

plaintiff had “moderate” social deficiencies, “often” experienced problems in

concentration/persistence, and was “markedly limited” in handling detailed

instructions, App. B at 252, 263, are certainly consistent with the severe and

worsening condition depicted in the 1993 evaluation.


                                          -6-
      In light of the evidence discussed above, the ALJ’s denial of benefits

clearly cannot stand. The ALJ (1) unaccountably ignored the most probative

psychiatric opinion in the record--an opinion which would direct a finding of

disability; (2) plainly erred in denying the existence of any work-related mental

impairment; and, as a result, (3) relied on a legally deficient hypothetical inquiry

to the vocational expert which omitted substantial nonexertional limitations

established by the evidentiary record. In fairness to the district court, however,

we note plaintiff has not always artfully articulated and effectively demonstrated

these errors throughout the proceedings on judicial review.

      This case has dragged on through eight years and three inadequate ALJ

decisions. And, at this point, the record would support a finding of disability at

steps three or five. “When a decision of the [Social Security Administration

(SSA)] is reversed on appeal, it is within this court’s discretion to remand either

for further administrative proceedings or for an immediate award of benefits.”

Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). Under the

circumstances, we conclude an award of benefits is appropriate. See, e.g., Sisco

v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 746 (10th Cir.

1993) (remanding for award of benefits in similarly protracted case, and

admonishing that SSA “is not entitled to adjudicate a case ad infinitum until it

correctly applies the proper legal standard and gathers evidence to support its


                                          -7-
conclusion” (quotation omitted)); Ragland, 992 F.2d at 1060 (remanding for

award of benefits “[i]n light of [SSA’s] patent failure to satisfy [its] burden of

proof at step five, and the long delay that has already occurred as a result of [its]

erroneous disposition of the proceedings”). More specifically, we direct SSA to

make the award effective as of July 12, 1989, the protective filing date of

plaintiff’s current application for benefits.

      The judgment of the United States District Court for the Western District of

Oklahoma is REVERSED, and the cause is REMANDED with directions to

remand, in turn, to the Social Security Administration for an award of benefits.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




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