                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 11 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RANDELL DUKES,

                Plaintiff-Appellant,

    v.                                                   No. 98-6031
                                                     (D.C. No. 96-CV-887)
    KENNETH S. APFEL, Commissioner                       (W.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before TACHA and McKAY, Circuit Judges, and BROWN, ** Senior District
Judge.




         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




*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
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 the district court’s affirmance of the Commissioner’s

decision denying his application for disability insurance benefits. On appeal,

plaintiff argues that (1) the ALJ erred in determining his combined impairments

did not meet or equal a listed impairment, and (2) the ALJ failed to recognize that

his mental impairment affected his ability to perform his past work. We exercise

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

      Plaintiff alleges disability as of February 11, 1993, 1 due to chronic back

pain, depression, right eye blindness, high blood pressure, and stomach ulcers.

After conducting an evidentiary hearing, the administrative law judge (ALJ)

analyzed plaintiff’s claims pursuant to the five-part sequential evaluation process.

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

1988). At step one, the ALJ found that plaintiff had not engaged in substantial

gainful activity since his alleged disability date. At step two, the ALJ determined



1
       Plaintiff filed his application for benefits on June 23, 1993, alleging
disability since March 6, 1992. The ALJ determined that because plaintiff had
failed to appeal an earlier denial of benefits dated February 11, 1993, and no
reason existed to reopen the earlier application, the earlier denial was res judicata
to the issue of disability before February 11, 1993. Plaintiff does not contest this
determination. Moreover, we lack jurisdiction to review the Commissioner’s
refusal to reopen and his determination that the earlier denial was res judicata.
See Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990).

                                         -2-
that plaintiff has the severe impairments of degenerative disease of the lumbar

spine and lumbar disk herniation. The ALJ determined at step three that plaintiff

does not have an impairment or combination of impairments meeting or equaling

any listed impairment. See 20 C.F.R. pt. 404, subpt. P, app. 1. The ALJ

concluded at step four that subject to plaintiff’s residual functional capacity

limitations of inability to engage in the exertional demands of medium, heavy,

and very heavy work, right eye blindness, and ability to stoop only occasionally,

plaintiff could perform his past relevant work as a cashier and, therefore, was not

disabled. When the Appeals Council denied plaintiff’s request for review, the

ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R.

§ 404.981.

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

supported by substantial evidence and whether the [Commissioner] applied the

correct legal standards.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.

1994). Substantial evidence is “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Richardson v. Perales,

402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).

      Plaintiff first argues that the Commissioner erred at step three in failing to

consider his combined impairments when determining whether his impairments


                                          -3-
met or equaled the listing for affective disorders. See 20 C.F.R. pt. 404, subpt. P,

app. 1, § 12.04. Plaintiff believes that his mental impairment either alone or in

combination with his other impairments meets or equals listing § 12.04, and,

therefore, he is presumptively disabled.

      The ALJ determined that plaintiff’s mental impairment was not severe. In

reaching this decision, the ALJ, as is required, see 20 C.F.R. § 404.1520a,

completed a Psychiatric Review Technique (PRT) form, which tracks the

requirements of the relevant listing, see 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 12.04A, B (requiring both A and B criteria to be met before claimant is

presumed disabled under listing). On the form, the ALJ indicated that plaintiff

had depression, but his depression did not restrict his activities of daily living,

caused only slight difficulty in maintaining social functioning, seldom resulted in

deficiencies in concentration, persistence or pace resulting in failure to complete

tasks in a timely manner, and never caused episodes of deterioration or

decompensation in work or work-like settings. See Appellant’s App. at

12 010-12. Thus, the ALJ found that plaintiff’s mental impairment did not meet

the required level of severity in any of the areas measured by listing § 12.04B.

      Plaintiff argues that contrary to the ALJ’s PRT findings, the medical

evidence of Dr. Dougherty and Dr. Krueger, both consulting doctors, proves that

he meets listing § 12.04. Dr. Dougherty, who is board certified in internal


                                           -4-
medicine and pulmonary disease, reported in the history section of his consulting

report dated February 2, 1993, that plaintiff had been depressed for six months,

cried frequently, slept poorly, had urinary frequency and anxiety, and had not

contemplated suicide. See Appellant’s App. at 45 001. Dr. Dougherty found

during the neurological portion of the physical examination that plaintiff’s

memory and behavior were normal. See id. at 45 002. Dr. Dougherty noted,

however, that plaintiff had not had a psychiatric evaluation. See id. at 45 001.

      Dr. Krueger performed a psychiatric evaluation on April 11, 1995. In the

narrative portion of his report, Dr. Krueger indicated that plaintiff had no past

psychiatric history; his facial expression was normal, even though he looked

somewhat depressed; his mood was depressed; his speech and flow of thought

were normal; he was generally cooperative, but too distracted or depressed to

cooperate with memory testing; he could handle small calculations; his motor

activity was somewhat slowed; he currently had no suicidal ideation; he heard

voices; and his judgment was somewhat impaired. See id. at 59 001-03.

Dr. Krueger concluded that plaintiff’s ability to reason and make occupational,

personal, and social adjustments was “fair” and that his psychiatric prognosis

was “fair.” See id. at 59 002-03. It was Dr. Krueger’s impression that plaintiff

suffers from “Depression NOS possibly with psychotic features.” See id. at

59 003.


                                         -5-
      In addition to preparing the narrative, Dr. Krueger also filled out a Medical

Assessment of Ability to Do Work-Related Activities (Mental) form. 2 With

regard to making occupational, personal, and social adjustments, Dr. Krueger

checked blocks indicating that plaintiff had a “good” ability to follow work rules,

relate to coworkers, deal with the public, use judgment, interact with supervisors,

deal with work stresses, function independently, maintain concentration and

attention, maintain personal appearance, behave in an emotionally stable manner,

relate predictably in social situations, and demonstrate reliability. See id. at

59 004-05. Dr. Krueger also checked blocks indicating that plaintiff had a “good”

ability to understand, remember, and carry out simple and detailed job

instructions, but only a “fair” ability with respect to complex instructions. See id.

at 59 005. The form specifically defined a “good” ability as a limited but

satisfactory ability; whereas, it defined “fair” ability as seriously limited but not

precluded. See id. at 59 004.




2
       This court has recognized that this form hampers this court’s and the ALJ’s
review, because it does not match the requirements of § 12.04B and the PRT
form. See Cruse v. United States Dep’t of Health & Human Servs., 49 F.3d 614,
618, 619 n.3 (10th Cir. 1995); Hargis v. Sullivan, 945 F.2d 1482, 1488 (10th Cir.
1991).

                                          -6-
      Dr. Krueger’s narrative and the form appear inconsistent. 3 Plaintiff argues

that the narrative assessment, that his ability to make occupational, personal, and

social adjustments was “fair,” should control, and, therefore, under the narrative

he meets the requirements of listing § 12.04B. See Cruse v. United States Dep’t

of Health & Human Servs., 49 F.3d 614, 618 (10th Cir. 1995) (defining “fair” as

“essentially the same as the listing requirement’s definition of the term ‘marked,’”

which is the degree of disability satisfying two of four listing requirements).

Furthermore, he submits that the ALJ’s failure to expressly consider Dr.

Krueger’s statements that his prognosis was “fair” and that he has only “fair”

ability to make occupational, personal, and social adjustments is reversible error.

We disagree.

      To the extent the narrative appeared to be different from the form, the ALJ

looked at both and gave credence to the form. Giving credence to the form was

reasonable in light of the other statements in the narrative, as well as plaintiff’s

testimony that he never sought the treatment for depression to which he had been

referred because he believed he could deal with his depression on his own, see

Appellant’s App. at 16 021.




3
      Although we cannot be certain, it is reasonable to assume Dr. Krueger did
not define “fair” in his narrative in the technical way that it is defined on the
form.

                                          -7-
      Plaintiff also argues that the ALJ failed to consider his combined physical

and mental impairments in deciding that his impairments did not equal listing

§ 12.04. The ALJ merely listed the back impairments he found severe at step two

and stated that he considered the combined effect of plaintiff’s alleged

impairments at step three. Although the ALJ did not, but should have, made

detailed findings at steps two and three, see Clifton v. Chater, 79 F.3d 1007, 1009

(10th Cir. 1996); Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995), he did

evaluate all of the evidence and make specific findings relating to steps two and

three at step four, see Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997)

(“step four requires a more detailed analysis of the claimant’s impairments than is

required at step two”). The record supports the ALJ’s findings at step four, as

well as his conclusions at steps two and three. Accordingly, we conclude

substantial evidence supports the ALJ’s conclusion that plaintiff’s mental

impairment, either alone or in combination with his other impairments, does not

meet or equal the requirements for presumptive disability under listing § 12.04.

Also, we conclude the ALJ correctly determined at step two that plaintiff does not

suffer from a severe mental impairment.

      If we disagree with his step three argument, plaintiff argues that the ALJ

erred at step four in failing to recognize the impact his mental impairment has on




                                          -8-
his ability to perform his past work. Plaintiff believes that his combined physical

and mental impairments preclude him from performing his past work.

      Contrary to plaintiff’s argument, the ALJ considered plaintiff’s mental

impairment, along with any alleged physical impairments, at step four. Plaintiff,

however, failed to prove that his impairments precluded him from performing his

past relevant work as a cashier. See Henrie v. United States Dep’t of Health &

Human Servs., 13 F.3d 359, 360 (10th Cir. 1993) (recognizing claimant has

burden of proof at step four). Accordingly, we conclude substantial evidence

supports the ALJ’s determination that plaintiff can perform his past relevant work

as a cashier.

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

Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




                                         -9-
