Wiederholt v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 8 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

MARJORIE E. WIEDERHOLT,

Plaintiff-Appellant,

v. No. 03-3251
(D.C. No. 02-CV-2313-GTV)
JO ANNE B. BARNHART, (D. Kan.)
Commissioner of the Social Security
Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.

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)(2); 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This order and judgment is not binding precedent, except under the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. 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.
 Marjorie Wiederholt appeals from an order affirming the Commissioner’s

decision that she is not entitled to social security disability insurance and

supplemental security income benefits. We have jurisdiction under 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291, and we affirm in part and reverse and remand in

part.

Background

Mrs. Wiederholt was diagnosed with carpal tunnel syndrome in her right

wrist in 1997. In March 1998, she underwent carpal tunnel release surgery, and

her condition improved somewhat. But as Mrs. Wiederholt continued to suffer

pain in her right arm, shoulder, and neck, it became apparent that she could not

return to her job, and her employment was terminated. Through her former

employer, in 1998 and 1999 she received disability insurance and worker’s

compensation payments in connection with her physical ailments, and she

continued to seek medical treatment for her pain. During the summer of 1998,

she also was diagnosed with fibromyalgia.

In February 2000, Mrs. Wiederholt applied for social security disability

insurance and supplemental security income benefits, alleging that she was

disabled because of pain in her hand and shoulder. After her claim was denied,

Mrs. Wiederholt requested a hearing before an administrative law judge (ALJ).

The hearing was scheduled for August 22, 2001. In a pre-hearing brief filed

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about a week before the hearing, Mrs. Wiederholt’s counsel identified her

impairments as carpal tunnel syndrome, degenerative disc disease, and

fibromyalgia. Aplt. App. at 173. In this brief, counsel also suggested, apparently

for the first time in the proceedings, that Mrs. Wiederholt was suffering from

depression and/or anxiety. Id. at 177-78. The ALJ heard testimony about Mrs.

Wiederholt’s memory problems at the hearing. Id. at 427, 455-57. At the end of

the hearing, he ordered a consultative examination by a psychologist. Id. at 458-

59.

On September 25, 2001, Mrs. Wiederholt was examined by licensed

psychologist David R. Mouille, Ph.D., who opined that she was suffering from

severe depression. Id. at 352, 354. He noted that her ability to remember and

recall information was “significantly reduced,” but he concluded that this

impairment was likely the result of her depression. Id. at 350-51. Dr. Mouille

also noted significant reductions in Mrs. Wiederholt’s abilities to form judgments,

make decisions, understand the world around her, and solve problems, and he

noted reductions to her abilities to attend and concentrate. Id. at 351. While he

measured her intellectual abilities “in the borderline to extremely low level of

functioning,” he noted that her scores on the relevant tests were not consistent

with her reported employment and earnings history, and he opined that her

depression had affected her intellectual functioning. Id. at 351, 354. Dr. Mouille

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stated that Mrs. Wiederholt was not currently able to manage her own funds, but

he expected her to be able to manage them in the future because her “[d]epression

[was] expected to ameliorate within one year.” Id. at 352, 358.

On January 8, 2002, with the initial ALJ having since left the agency, a

second ALJ reconvened the hearing. After hearing Mrs. Wiederholt’s evidence

and considering the consultative examinations ordered by the initial ALJ, the

second ALJ determined that, although Mrs. Wiederholt had some severe

impairments, they were not so severe as to meet or medically equal a listed

impairment. Most relevant to this appeal, the ALJ concluded that the record did

not support the severity of the depression described by Dr. Mouille, and that, in

any event, Mrs. Wiederholt’s depression did not qualify as a disability because it

was not expected to last at a disabling level for at least twelve months. See 42

U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 1525(a); id.

§§ 416.905(a), 416.925(a); Barnhart v. Walton , 535 U.S. 212, 218-20 (2002).

After consulting a vocational expert (VE), the ALJ concluded that

Mrs. Wiederholt had the residual functional capacity to work in positions

available in the national economy, and he declared that she was not entitled to

benefits.

The Appeals Council denied review, so the ALJ’s decision became the

Commissioner’s final decision. Doyal v. Barnhart , 331 F.3d 758, 759

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(10th Cir. 2003). The district court affirmed the Commissioner’s ruling. Mrs.

Wiederholt appeals.

Discussion

Standard of Review

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

supported by substantial evidence and whether correct legal standards were

applied.” McNamar v. Apfel , 172 F.3d 764, 766 (10th Cir. 1999). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Dikeman v. Halter , 245 F.3d 1182, 1184

(10th Cir. 2001). “In evaluating the appeal, we neither reweigh the evidence nor

substitute our judgment for that of the agency.” Casias v. Sec’y of Health &

Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991).

Analysis

Mrs. Wiederholt has not appealed the determination that her physical

impairments do not qualify her for benefits. Rather, she focuses her appeal on the

ALJ’s determination that her mental impairments were not disabling, arguing that

(1) the ALJ erred in not establishing an onset date for her depression, and (2) he

improperly asked the VE a hypothetical question that did not adequately express

her mental limitations.

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 I.

Mrs. Wiederholt contends that her mental impairments were severe enough

to meet Listing § 12.04, and that the ALJ could not properly conclude that she had

not met the twelve-month durational requirement without determining an onset

date for her depression. She also contends that, by not establishing an onset date,

the ALJ failed to fulfill his duty to develop the record.

Mrs. Wiederholt argues that the record evidence shows that “she had been

depressed for years prior to September 2001.” Aplt. Br. at 18. The relevant

question, however, is not whether she was suffering from depression, but whether

her depression was disabling for the requisite twelve-month period. Walton ,

535 U.S. at 217-22; Potter v. Sec’y of Health & Human Servs. , 905 F.2d 1346,

1348-49 (10th Cir. 1990) (per curiam); Flint v. Sullivan , 951 F.2d 264, 267-68

(10th Cir. 1991). A retrospective diagnosis of a disease or condition, without

evidence of actual disability, is insufficient for an award of benefits. Potter , 905

F.2d at 1349; Flint , 951 F.2d at 267.

Factors relevant to determining an onset date include the claimant’s

allegations of an onset date and the claimant’s work history, but “[t]he medical

evidence serves as the primary element in the onset determination.” Soc. Sec.

Rul. 83-20, 1983 WL 31249, at *2 (1983). While it may be necessary for an ALJ

to call a medical advisor at the hearing to infer an onset date, “a medical advisor

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need be called only if the medical evidence of onset is ambiguous.” Reid v.

Chater , 71 F.3d 372, 374 (10th Cir. 1995). “[T]he established onset date must be

fixed based on the facts and can never be inconsistent with the medical evidence

of record.” Soc. Sec. Rul. 83-20, 1983 WL 31249, at *3. Here, any inferred

onset date earlier than the date of Dr. Mouille’s diagnosis would be inconsistent

with the medical record.

Of the approximately twelve doctor’s visits Mrs. Wiederholt made from late

1999 until the August 2001 hearing, only one doctor’s report contains even a hint

of a concern about a mental condition–a diagnosis of memory loss. 1
Aplt. App. at

204, 332. This is a far cry from a diagnosis of depression or an indication that

Mrs. Wiederholt was disabled due to a mental impairment. Mrs. Wiederholt

contends that her doctor’s prescription of the anti-depressant Amitriptyline shows

that he considered her depressed, but the medical evidence of record contradicts

this inference. A report filled out by the doctor’s nurse practitioner on or about

November 30, 2000, indicates that the medication was prescribed for neuropathy

(which is consistent with Mrs. Wiederholt’s ongoing treatments for pain), and it

1
At the initial hearing, Mrs. Wiederholt’s attorney stated, “Judge, there has
been notes in the file that they had recommended a possible evaluation due to the
depression and the anxiety, but nothing has been done in that.” Aplt. App. at 413.
Later, the initial ALJ indicated that at some point, Mrs. Wiederholt had been
advised to seek psychiatric assistance or counseling. Id. at 454. But our review
of the record does not reveal, and Mrs. Wiederholt’s counsel has not identified,
either the notes referred to or any other evidence supporting these comments.

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says nothing about depression. Id. at 204. Mrs. Wiederholt herself testified at the

initial hearing, prior to seeing Dr. Mouille, that she was prescribed Amitriptyline

for pain. Id. at 449.

In addition, when Mrs. Wiederholt applied for benefits in February 2000,

she indicated she had pain in her hand and shoulders; she said nothing about

mental limitations. Id. at 95-104. In a March 1, 2000, Social Security field

report, the reporter observed no difficulty in her coherency or concentrating. Id.

at 93. In her requests for reconsideration in the summer of 2000, Mrs. Wiederholt

asserted that she could not work because of her pain, but again, she mentioned no

mental impairments. Id. at 41, 43. Consistently, self-reports completed by

Mrs. Wiederholt in early and mid-2000 also indicated that, while her activities

were somewhat limited, she did light housework and some cooking and shopping,

she left home without assistance, she visited with friends at her home, and she

watched TV and listened to the radio. Id. at 105-09, 132-36.

Therefore, the medical evidence in this case regarding the onset of

Mrs. Wiederholt’s depression is not ambiguous; it is practically nonexistent.

Prior to the August 2001 pre-hearing brief and hearing, the record contains little

to no discussion about depression or concerns about Mrs. Wiederholt being

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depressed, much less evidence showing she suffered from disabling depression. 2

Given these circumstances, the ALJ did not err in not calling a medical advisor to

determine an onset date. Reid , 71 F.3d at 374. Moreover, Dr. Mouille opined

that Mrs. Wiederholt’s low test scores were due to her depression, and within one

year, her depression would ameliorate sufficiently to allow her to manage her own

funds. In light of this record, there is substantial evidence to support the ALJ’s

decision that Mrs. Wiederholt’s mental impairments did not meet Listing § 12.04.

Mrs. Wiederholt further contends that, because he did not establish an onset

date, the ALJ failed to fulfill his duty to develop an adequate record. While the

ALJ does have a basic obligation to develop an adequate record, even where the

claimant is represented by counsel, Henrie v. United States Dep’t of Health &

Human Servs. , 13 F.3d 359, 360-61 (10th Cir. 1993), such duty is limited to “fully

2
Mrs. Wiederholt relies heavily on her own testimony and that of her
husband to support her allegations of disabling depression for some time prior to
September 2001. Aplt. Br. at 18-19. But the ALJ found both Mr. and
Mrs. Wiederholt not to be credible witnesses, Aplt. App. at 21-22, 24, and, as
Mrs. Wiederholt acknowledges, she did not appeal the ALJ’s credibility finding to
the district court. Aplt. Br. at 21; Aplt. App. at 467. Nonetheless, on appeal she
argues that the testimony supports her position, because despite the general
finding of non-credibility, the ALJ did not discredit the specific instances about
which she and her husband testified. Aplt. Br. at 21. We decline to consider this
back-door attempt to challenge the ALJ’s credibility findings, when credibility
was not raised in the district court. See Crow v. Shalala , 40 F.3d 323, 324
(10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that
were not presented to the district court.”).

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and fairly developing the record as to material issues.” Hawkins v. Chater ,

113 F.3d 1162, 1168 (10th Cir. 1997) (quotation and brackets omitted).

Here, the ALJ fulfilled his duty: the record contains copious medical

records and other contemporaneous evidence of Mrs. Wiederholt’s condition, as

well as information from the two hearings. As discussed above, given the state of

the record, any attempt to make a retrospective diagnosis of disabling depression

would be speculative and unsupported. Further, Mrs. Wiederholt’s counsel did

not seek to supplement the record or otherwise alert the ALJ that the record might

be considered insufficient. See id. at 1167 (“[T]he ALJ should ordinarily be

entitled to rely on the claimant’s counsel to structure and present claimant’s case

in a way that the claimant’s claims are adequately explored.”).

II.

Mrs. Wiederholt also argues that the ALJ asked the VE a hypothetical

question that did not adequately take account of Mrs. Wiederholt’s severe mental

restrictions. We agree that the challenged question was flawed, and that it was

improper for the ALJ to rely on the VE’s response to that question.

In determining Mrs. Wiederholt’s residual functional capacity (RFC), the

ALJ found that, mentally, claimant was “limited to simple, unskilled job tasks.”

Aplt. App. at 22. But the ALJ further found that claimant had “mild restrictions

in activities of daily living, mild difficulties in maintaining social functioning,

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[and] moderate difficulties in maintaining concentration, persistence, or pace.”

Id. When describing Mrs. Wiederholt’s capabilities to the VE, however, he

included only the limitation of “simple, unskilled” tasks mentally. Id. at 404.

The VE responded that, with that RFC, Mrs. Wiederholt could do unskilled light

or sedentary work. Id. at 404-05. The ALJ relied on this answer in denying

benefits to Mrs. Wiederholt. Id. at 23-24.

Mrs. Wiederholt’s mental impairments, even though not qualifying as

disabling impairments in and of themselves, were properly considered in

conjunction with her physical impairments in determining her RFC. See Soc. Sec.

Rul. 96-8p, 1996 WL 374184, at *5 (1996). Hypothetical questions should be

crafted carefully to reflect a claimant’s RFC, as “[t]estimony 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 v. Sullivan , 945 F.2d 1482, 1492

(10th Cir. 1991) (quotation omitted); see also Evans v. Chater , 55 F.3d 530, 532

(10th Cir. 1995) (noting “the established rule that such inquiries must include all

(and only) those impairments borne out by the evidentiary record”).

The relatively broad, unspecified nature of the description “simple” and

“unskilled” does not adequately incorporate the ALJ’s additional, more specific

findings regarding Mrs. Wiederholt’s mental impairments. Because the ALJ

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omitted, without explanation, impairments that he found to exist, such as

moderate difficulties maintaining concentration, persistence, or pace, the resulting

hypothetical question was flawed. Moreover, there is no evidence to suggest that

the VE heard testimony or other evidence allowing her to make an individualized

assessment that incorporated the ALJ’s specific additional findings about Mrs.

Wiederholt’s mental impairments. Cf. Diaz v. Sec’y of Health & Human Servs. ,

898 F.2d 774, 777 (10th Cir. 1990). The VE’s opinion that Mrs. Wiederholt could

do unskilled light or unskilled sedentary work is therefore not substantial

evidence to support the ALJ’s decision.

The omission of the ALJ’s more specific findings is particularly significant

given that, when the ALJ posed a hypothetical question incorporating all of the

limitations found by Dr. Mouille, the VE opined that Mrs. Wiederholt would be

precluded from all work activity. Aplt. App. at 406. Thus, when looking at Mrs.

Wiederholt’s capabilities given her mental impairments, at one end of the

spectrum, the VE concluded that Mrs. Wiederholt could perform unskilled light or

sedentary work, and at the other end, she indicated there was no work that Mrs.

Wiederholt could perform. Id. at 404-05, 406. Given all of the ALJ’s findings,

though, the situation here was neither at one extreme nor the other. The SSA, on

remand, should obtain vocational testimony that considers all of the ALJ’s

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findings regarding Mrs. Wiederholt’s limitations in order to determine where

along the spectrum Mrs. Wiederholt properly should be placed.

The judgment of the district court is affirmed in part, and reversed in part

and remanded for further proceedings.

Entered for the Court

Michael R. Murphy
Circuit Judge

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