Andrade v. Secretary of Health and Human Services, 92-2017

• Decision Date: 11 February 1993
• Docket Number: No. 92-2017,92-2017
• Citation: 985 F.2d 1045
• Parties: , Unempl.Ins.Rep. (CCH) P 17282A Sam A. ANDRADE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1045

985 F.2d 1045

40 Soc.Sec.Rep.Ser. 117, Unempl.Ins.Rep. (CCH) P 17282A

Sam A. ANDRADE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 92-2017.

United States Court of Appeals, Tenth Circuit.

Feb. 11, 1993.

Gary J. Martone, Albuquerque, NM, for plaintiff-appellant.

Don J. Svet, U.S. Atty., Gayla Fuller, Chief Counsel, Region IV, and Christopher Carillo, Asst. Regional Counsel, Office of the General Counsel, U.S. Dept. of Health and Human Services, Dallas, TX, for defendant-appellee.

Before BALDOCK and SETH, Circuit Judges, and BABCOCK, ^* District Judge.

BABCOCK, District Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Appellant Sam A. Andrade (claimant) appeals from an order of the district court affirming the Secretary of Health and Human Services' decision that claimant is not entitled to disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, or to supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381a. Claimant argues that substantial evidence does not support the Secretary's determination that his mental impairment did not limit his ability to work. Claimant also argues that the Secretary either incorrectly categorized his past relevant work or applied an incorrect legal standard in determining that he could return to his past relevant work. We disagree with claimant's second argument, but agree with his first. Therefore, we affirm in part, reverse in part, and remand with directions.

Claimant was a self-employed general contractor in New Mexico from August 1974, until May 1987. Claimant's duties, however, were not limited to those typically performed by a general contractor: because he owned a small business, he also functioned as a plumber and manual laborer at times. He claims that physical and mental limitations, including epilepsy, a heart condition, and problems with his right arm, rendered him disabled as of July, 1987. He also claims to be disabled from a mental impairment.

Claimant's applications for benefits were denied both initially and upon reconsideration at the administrative level. The applications and documentary evidence were then reviewed de novo by an administrative law judge (ALJ). After conducting a hearing, the ALJ determined that claimant was not disabled because he retained the capacity to perform his former job as that job is performed in the national economy. The Appeals Council denied claimant's request for review. The ALJ's decision, therefore, became the final decision of the Secretary. The district court upheld the ALJ's decision.

Our review of the Secretary's decision is limited to "whether his findings are supported by substantial evidence in the record and whether he applied the correct legal standards." Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir.1991). The " '[f]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.' " Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984) (quoting Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir.1983)). Additionally, we must reverse if the Secretary's findings are not supported by substantial evidence. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988). Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir.1983) (further citation omitted)).

To prove a disability, a claimant must establish a "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 1382c(a)(3)(A) & 423(d)(1)(A). Social security regulations specify that a five-step sequential analysis must be used to evaluate a claim for disability benefits. 20 C.F.R. §§ 404.1520 & 416.920; see also Williams 844 F.2d at 750-52 (providing explanation of the five steps). At issue in this appeal is step four, which requires examination of whether physical or mental impairments prevent a claimant from continuing past relevant work.

I. Claimant's Alleged Mental Disability

Claimant argues that the ALJ's decision regarding the extent of his depression is unsupported by the record. Specifically, claimant maintains that his severe depression substantially limits his residual functional capacity, and that the ALJ's conclusion otherwise is not supported by substantial evidence. Residual functional capacity represents the capacity of the claimant to perform work, despite mental or physical impairments. 20 C.F.R. §§ 404.1545(a) & 416.945(a) (residual functional capacity assesses "what you can still do despite your limitations"). The ALJ evaluated claimant's residual functional capacity as part of the fourth step of the disability analysis. See id. §§ 404.1520(e) & 416.920(e).

The evidence of claimant's depression in this case consisted of his testimony at the hearing before the ALJ, along with letters and hand-written treatment notes, which are mostly illegible, from claimant's physician. Claimant complained of depression and suicidal thoughts. He also admitted to crying spells, feelings of worthlessness, and withdrawing from people when he felt bad. Claimant testified that he had been treated on a weekly basis for depression by Dr. Jaramillo since August 1988 (four months before the hearing). Administrative R. at 81. Claimant stated that he saw Dr. Jaramillo for an individual session once a week, and for a group session twice a week. Id. In addition, Dr. Jaramillo gave claimant a shot every week to, in claimant's words, "help me mentally with my chemical imbalance." Id. at 80. Claimant added that Dr. Jaramillo said he would need the shots "for a year or so." Id. Regarding the effectiveness of Dr. Jaramillo's treatment, claimant explained that the treatments helped a lot, but shortly after the shots and group sessions he would start to feel bad again. Id. at 83.

At the hearing, claimant's attorney submitted a letter from Dr. Jaramillo which described claimant as "totally mentally disabled," and suggested claimant follow "an intense psychochemotherapeutic treatment program ... for at least 3-6 months." Id. at 239. Sometime after the hearing, the attorney submitted a letter from Dr. Jaramillo, written in December 1988, which assessed claimant as having "major depression with incongruent thoughts." Id. at 261. The letter also stated that claimant complained that he was overwhelmed and not sleeping, and that he felt "enormous stress and conflicts related to his legal issues of his old business." Id. The record contains a final letter from Dr. Jaramillo, written July 12, 1989, that states "[claimant] appears to continue to suffer a mental disability. His last visit occurred on February 24, 1989, and he was still in distress. [Claimant] has not continued with therapy due to a financial hardship." Id. at 271.

The ALJ found that it was unclear from the record whether claimant's depression was expected to continue for twelve months. Although the ALJ recognized that Dr. Jaramillo diagnosed claimant as totally mentally disabled, the ALJ found that there was "no other reference ... in [Dr. Jaramillo's] reports regarding claimant's inability to perform work. In fact, Dr. Jaramillo reported in November and December 1988 that the claimant was feeling overwhelmed due to certain legal problems." Id. at 44. The ALJ concluded that "[i]n view of this evidence, an inference can be drawn that claimant's mental problems are largely, if not all, situational in nature, leading to a conclusion that any symptomatology will subside once his legal problems do so." Id.

We conclude that the ALJ did not give proper consideration to claimant's alleged mental impairment. When a record "contains evidence of a mental impairment that allegedly prevented claimant from working, the Secretary [is] required to follow the procedure for evaluating the potential mental impairment set forth in his regulations and to document the procedure accordingly. See 20 C.F.R. § 404.1520a." Hill v. Sullivan, 924 F.2d 972, 975 (10th Cir.1991); see also 20 C.F.R. § 416.920a (for parallel regulations applicable to claims for SSI benefits). And, of course, the Secretary must also comply with all applicable procedures mandated by the statute. See, e.g., 42 U.S.C. § 421(a)(2) (disability determinations must be made in accordance with pertinent statutory provisions and applicable regulations of the Secretary). From the record it appears that the ALJ complied with the social security regulations, but not with the statutory requirement to make every reasonable effort to ensure that a qualified psychologist or psychiatrist completes the residual functional capacity assessment. See 42 U.S.C. § 421(h).

Section 421(h) of Title 42 provides that

[a]n initial determination ... that an individual is not under a disability, in any case where there is evidence which indicates the existence of a mental impairment, shall be made only if the Secretary has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.

This provision applies to claims for SSI benefits and for disability insurance benefits. Hill, 924 F.2d at 974. Thus, when the record contains evidence of a mental impairment, the Secretary cannot determine that the claimant is not under a disability without first making every reasonable effort to ensure that a qualified...