* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JUANITA MINNICK,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-5184 (D.C. No. 96-CV-285-J) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 The parties agreed to disposition of the case by th e magistrate judge

pursuant to 28 U.S.C. § 636(c)(1). Accordingly, ou r jurisdiction arises under § 636(c)(3) and 28 U.S.C. § 1291. -2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from an order of the magistrate judge 1 affirming the Commissioner’s decision to deny her application fordisability insurance benefits. The Commissioner concluded that plaintiff did not h ave a severe impairment on or before December 31, 1991, the last day plaintiff satisfied the applicable insured-status requirements and, consequently, deni ed benefits at step two of the controlling five-step analysis. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). We closely examine the record as a w hole to determine whether the Commissioner’s decision is supported bysubstantial evidence and adheres to the governing legal standards. See Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994). The scope of our review, however, is limited to the issues properly preserved and presented on appeal. See Berna v. Chater , 101 F.3d 631, 632-33 (10th Cir. 1996). Guided by these principles, we affir m the Commissioner’s decision for the reasons that follow

. When the Administrative Law Judge (ALJ) decided thi s case in 1995, plaintiff suffered from recently developed diabetes , controlled by medication, alleged muscular-skeletal pain, and certain physica l weaknesses suggestive of a-3-

previous cerebrovascular accident (CVA). We focus on the last condition, which provides the sole basis for plaintiff’s judicial ch allenge to the denial of benefits. However, to understand that challenge, and to appre ciate the administrative determination against which it is directed, it will be helpful first to review the medical record in general, chronological terms. The medical record dates from 1977 through 1994, wh en the ALJ heard the case. It includes notes from the late 1970’s refle cting complaints about fatigue, weakness, and memory problems, though with “[e]xami nation reveal[ing] completely normal findings neurologically and from the vascular viewpoint.” Appendix (App.) II at 276. Minor, unrelated compla ints prompted single visits in the years 1980 through 1982. See id. Then there is a break until 1985, when menstrual problems brought plaintiff back to her physician and ultimately resulted in a hysterectomy. See id. at 235, 264-65, 276. After isolated visits in 198 6, 1987, and 1989, see id. at 235, plaintiff next sought medical attention in 1993, when a spate of reports dealing with various cardio vascular, neurological, pulmonary, hematological, psychiatric, gastronomic, and muscular-skeletal complaints appears in the record and continues through 1994. See generally id. at 151-52; 172-276. The earliest 1993 notes do not mention a CVA or CVA -related complaints.
See id. at 235. Shortly thereafter, initial medical refer ences to a possible CVA-4-

indicate a fairly recent occurrence. See id. at 207-08 (two May 1993 test reports reciting CVA within the last year as reason for referral); see also id. at 244 (July 1993 report reciting history of stroke “1 1⁄2 - 2 years ago”). Moreover, the 1993 notes do not consistently reflect plaintiff’s repre sentation of the incident as being severe. Indeed, even in early 1994 plaintiff reite rated the characterization of her suspected CVA as “a little stroke.” Id. at 232. After plaintiff filed her application for social security benefits in mid-Feb ruary 1994, however, the record finally refers to the alleged 1990 CVA that would c ome to be the focus of this disability-onset case. See id. at 246 (psychiatric report reciting patient history). From that time on, plaintiff has held to her accoun t of a stroke in November 1990 so severe that it left her physically incapacitated for up to a year, unable to speak for even longer, and subject to residual weakening several years later. The ALJ rejected this account as incredible in ligh t of plaintiff’s medical record, reasoning that any event at all like the on e plaintiff alleged would have prompted her to solicit some medical attention. Pl aintiff asserted that she was afraid to do so, after the death of her sister in ahospital in 1988. However, when asked by the ALJ if she could explain why this same fear did not prevent her from seeking medical attention in 1993 (for both severe and non-severe complaints), plaintiff simply responded “no.” Id. at 50. Indeed, we note plaintiff saw-5-

a physician in 1989 as well, so her asserted post-1 988 fear had been inoperative before and after the alleged stroke. On appeal, plaintiff contends the ALJ did not follo w the directives set out in Social Security Ruling (SSR) 83-20, which “state [s] the policy and describe[s] the relevant evidence to be considered when establi shing the onset date of disability.” 1983 WL 31249 at *1. More specifical ly, she complains that the ALJ (1) failed to call a medical advisor to assist in a ssessing her allegations regarding the November 1990 stroke, and (2) ignored lay testi mony, and particularly her own declaration of onset, that supported those alle gations. The cited ruling recognizes that, when dealing witha progressively worsening condition, it is sometimes necessary to m ake an inference about the onset of disability “prior to the date of the firstrecorded medical examination.” Id. at *3. If this situation arises, andthe pertinent medical record is ambiguous, the ALJ should call on the services of a medical ad visor to inform his or her inferential judgment. See Reid v. Chater , 71 F.3d 372, 374 (10th Cir. 1995) (applying SSR 83-20); accord Spellman v. Shalala , 1 F.3d 357, 362-63 (5th Cir. 1993) (citing cases). This is not such a case, fortwo reasons. First, on plaintiff’s own account, the asserted 199 0 stroke did not involve a progressive condition at all. Rather, she allege s the occurrence of a discrete and immediately disabling event that, but for the lack of (expected) contemporaneous2 Plaintiff argues only that an immediate and totallydisabling CVA occurred

in November 1990, and has not claimed that, should this account be found incredible, perhaps a less severe CVA occurred some time later in the insured period prior to December 1991. Given this all-or-n othing approach, we have no occasion here to consider SSR 83-20's application to progressively improving conditions, where a medical advisor’s opinion mightassist the ALJ in working backward from current, resolving symptoms to a prio r disability within a broad range of possible onset dates. -6- treatment, would have been amenable to definitive d ating without any need for the uncertain retroactive/inferential determination wit h which SSR 83-20 is concerned. Whether such an event actually occurredat all is not a question that calls for a medical advisor’s opinion about when ce rtain but gradual deterioration may have reached the point of disability. 2In short, the ALJ was entitled to assess and reject this allegation like any other fact not borne out by the surrounding circumstances. Second, we are not dealing with the onset of a disabling impairment that can fairly be characterized as occurring “prior to the date of the first recorded medical examination.” 1983 WL 31249 at *3. Plaint iff has a lengthy medical record extending before and after the alleged onsetdate; she cannot seek reversal of the ALJ’s determination under SSR 83-20 simply b y pointing to a fractional interim period -- less than four years in a sevente en-year record -- during which, without credible explanation, she did not secure th e medical attention her alleged condition would clearly have prompted anyone to seek. Cf. James v. Chater ,-7-

96 F.3d 1341, 1343 (10th Cir. 1996) (holding claimant’s invocation of SSR 83-20 frivolous where “there were pertinent examinations both before and after the alleged onset date”). On the contrary, the ALJ pro perly relied on just this omission in finding that the alleged 1990 stroke di d not happen. We have little to add with respect to the ALJ’s tre atment of plaintiff’s formal declaration of disability and the lay testim ony elicited in support thereof. The ALJ considered this evidence, but rejected it a s incredible in light of plaintiff’s contemporaneous conduct and the medical record (which, moreover, to the extent the “personal histories” in the reports are patient-derived, reflects flatly inconsistent statements by plaintiff herself). In the determination of onset, as in disability cases generally, the medical record is p rimary; the claimant’s averments and proffered testimony are probative only to the e xtent consistent with the medical evidence. See 1983 WL 31249 at *2, *3; see also Reid , 71 F.3d at 373. We discern no error in the consideration of plainti ff’s evidence and, accordingly, we defer to the ALJ’s assessment of its credibility. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995); see also Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 801 (10th Cir. 1991) (noting ALJ is “ optimally positioned to observe and assess witness credibility”).-8-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge