Opinion
Civ 01-67 JP/KBM
November 26, 2001
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before the Court on Plaintiffs Motion to Reverse or Remand. Doc. 10. Defendant requests a remand so that the Administrative Law Judge (ALJ) can obtain any new medical evidence available, obtain vocational expert testimony, and reevaluate the matter in its entirety. Doc. 12. I agree.
Plaintiff argues that his mental impairment of depression meets the listing § 12.04 and therefore outright reversal is warranted. He asserts that there is no need for additional evidence, a reevaluation of residual functional capacity, or taking vocational expert testimony on remand because no evidence contradicts the opinion of his treating psychiatrist (Dr. Leo Kreuz of the Veterans Administration) that Plaintiff meets the listing.
Plaintiff concedes that the Veteran Administration agency's finding of 100% disability is not binding on the Secretary. Doc. 13 at 2.
Both in the administrative proceedings and here, Plaintiff relies exclusively on Dr. Kreuzs findings. See Doc. 11 at 13, Doc. 13 at 2-4; Administrative Record (Record). The ALJ, however, gave little weight to Dr. Kreuzs findings because the physician filled out his PRT form a year after his last evaluation of Plaintiff. Id. at 14.
Further, Dr. Jacob Tendler, a nontreating, nonexamining evaluator, found in his Psychiatric Review Technique Form (PRT) that Plaintiff did not meet the impairment severity B criteria of the listing to qualify as disabled. See Record at 100, 150. The ALJ's PRT form found likewise. Id. at 25. Although the ALJ erred in not discussing the evidence he considered in reaching his own PRT findings, due to Dr. Tendlers findings I cannot conclude the record is entirely devoid of evidence as Plaintiff contends. Having carefully reviewed the record, and because the terms of remand outlined in Defendants response take into account Plaintiffs other objections to the ALJs decision, I therefore find remand is appropriate. See Cruse v. United States Dept. of Health Human Servs., 49 F.3d 614, 619 (10th Cir. 1995).
Wherefore,
IT IS HEREBY RECOMMENDED that Plaintiffs motion be granted in part and the matter remanded to the Secretary for further proceedings consistent with Defendants response.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 10 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the ten day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.