* 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.

FILED

United States Court of Appeals

Tenth Circuit

May 6, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD F. KRAUSER,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Commissioner, Social Security

Administration,

Defendant-Appellee.

No. 10-5103

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 4:08-CV-00422-TLW)

Submitted on the briefs:*

Richmond J. Brownson, Timothy M. White, Tulsa, Oklahoma, for

Plaintiff-Appellant.

Thomas Scott Woodward, United States Attorney, Cathryn McClanahan, Assistant

United States Attorney, Michael McGaughran, Regional Chief Counsel, Region

VI, Eric D. Poole, Special Assistant United States Attorney, Office of the General

Counsel, Region VI, Social Security Administration, Washington, D.C., for

Defendant-Appellee.
-2-

Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff Richard F. Krauser appeals from a district court order, issued by

the magistrate judge on consent of the parties under 28 U.S.C. § 636(c), affirming

the Commissioner’s decision to deny social security disability and supplemental

security income benefits. We independently review the Commissioner’s decision

to determine whether it is free from legal error and supported by substantial

evidence, Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005), though

“our review . . . is limited to the issues the claimant properly preserves in the

district court and adequately presents on appeal.” Berna v. Chater, 101 F.3d 631,

633 (10th Cir. 1996). We reverse and remand for the reasons explained below. 

I. Agency Decision

The Administrative Law Judge (ALJ) denied benefits at the last step of the

five-step sequential process for determining disability. See Fischer-Ross,

431 F.3d at 731 (summarizing process). The ALJ found that (1) Mr. Krauser had

not engaged in substantial gainful activity since the alleged onset date of

disability on November, 28, 2003; (2) Mr. Krauser is severely impaired from

degenerative joint disease, diabetes, hepatitis B and C, and hypertension; (3) these

impairments do not meet or equal any of the per se disabling impairments listed in
-3-

20 C.F.R. Part 404, Subpart P., App. 1; (4) Mr. Krauser has the residual

functional capacity (RFC) to perform medium work, but is unable to perform his

past relevant work as a truck driver and construction worker; and (5) considering

his age, education, transferable work skills, and RFC, Mr. Krauser can perform

other occupations, identified by a vocational expert (VE), that exist in significant

numbers in the regional and national economy, such as delivery driver, hand

packager, janitor, laundry sorter, cleaner, clerical mailer, and order clerk. 

The Appeals Council denied review, making the ALJ’s decision the

Commissioner’s final decision for our review. Doyal v. Barnhart, 331 F.3d 758,

759 (10th Cir. 2003). It did, however, accept and consider certain additional

evidence submitted by Mr. Krauser, concluding that it did not provide a basis for

altering the ALJ’s determination. 

II. Challenges to Agency Decision 

Mr. Krauser argues that the ALJ’s determination of non-disability must be

reversed, because it rests on a failure to properly consider all of his impairments

(in particular, a depression impairment disregarded as medically indeterminable);

on an incorrect analysis of the opinions of his treating physician; on an improper

assessment of his credibility; and on an erroneous determination at step five

resulting from an inadequate hypothetical inquiry to the VE. We take up these

contentions in the order presented. 
1 Mr. Krauser refers to documentation from his incarceration years earlier as

indicating a problem with depression, but it actually undermines his claim. He

cites his response of “sometimes” to a prison intake questionnaire asking whether

he ever felt he was “going crazy or ha[d] a serious mental problem,” App. Vol. 2

at 384, but that does not focus on any particular condition. And, as to depression,

the questionnaire goes on to note he was never treated for it and had no problems.

Id. at 382, 384. Mr. Krauser also notes that in 2006 he told an agency clerk he

was “sitting around getting depressed,” id. at 147, but that hardly suggests a

serious mental health condition. Finally, he once mentioned to his treating

physician that he felt depressed, in January 2007, id. at 238-39, but no treatment

or testing was done and there is no further mention of it in his medical records. 

-4-

A. Rejection and/or Failure to Develop Evidence of Depression Impairment

The analysis of this issue is divided into two parts, one based on the record

before the ALJ and the other based on the augmented record before the Appeals

Council. As to the former, we agree with the district court that Mr. Krauser had

not presented evidence demonstrating the existence of a medically determinable

impairment. There was no medical testing for, let alone diagnosis and treatment

of, any impairment regarding depression. Indeed, a report from Mr. Krauser’s

treating physician shortly before the hearing specifically noted “no abnormal

findings” where indications of various psychological conditions, including

depression, were to be assessed. App. Vol. 2 at 390. A couple of isolated,

passing references to depression buried in the record hardly suggested that the

medical personnel who examined Mr. Krauser had missed or ignored a serious

mental illness,1

 undercutting his contention that the ALJ should have sent him for

a consultative examination. There simply was not “evidence sufficient to suggest
-5-

a reasonable probability that a severe impairment exist[ed].” Hawkins v. Chater,

113 F.3d 1162, 1167 (10th Cir. 1997) (setting out claimant’s burden to

demonstrate issue requiring development by Commissioner); Cf. Carter v. Chater,

73 F.3d 1019, 1021-22 (10th Cir. 1996) (noting Commissioner had a duty to

develop issue where medical records showed depression had been diagnosed). 

After the ALJ issued his decision on October 31, 2007, Mr. Krauser sought

and obtained a referral for possible depression, “reporting he feels sad all the time

because of his current economic and health situation.” App. Vol. 2 at 397. A

medical report from January 18, 2008, notes a diagnosis of major depression and

a prescription for an anti-depressant. Id. at 398-99. Mr. Krauser argues that in

light of this new evidence, submitted to and considered by the Appeals Council,

he had either established a medically determinable mental impairment or at least

demonstrated the existence of an issue that required further development. 

Because of the circumstances of its admission, the proper treatment of this

evidence is somewhat unclear, as it implicates a potential tension in our case law. 

The basic principle, derived from the relevant regulations, is well-established: 

the Appeals Council must consider additional evidence offered on administrative

review–after which it becomes a part of our record on judicial review–if it is

(1) new, (2) material, and (3) related to the period on or before the date of the

ALJ’s decision. Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004)

(discussing 20 C.F.R. §§ 404.970(b), 416.1470(b)). If the evidence does not
-6-

qualify, the Appeals Council does not consider it and it plays no role in judicial

review. Id. Here, the district court held that the new evidence submitted to the

Appeals Council failed to satisfy the third requirement because it “pertained to

dates after the ALJ’s final decision,” and, therefore, “cannot be given merit in

evaluating plaintiff’s alleged mental impairment.” App. Vol. 1 at 43. This ruling

begs the question: who decides whether evidence qualifies as new, material, and

related to the relevant period? 

One line of our cases suggests that we do: we have repeatedly held that

whether evidence is “new, material and chronologically pertinent is a question of

law subject to our de novo review.” Threet v. Barnhart, 353 F.3d 1185, 1191

(10th Cir. 2003); see Chambers, 389 F.3d at 1142. But we have also held that

when the Appeals Council accepts additional evidence, that is “an implicit

determination [that it is] . . . qualifying new evidence,” requiring the Appeals

Council to consider it and this court to include it in our review of the ALJ’s

decision, without separate consideration of the requirements for qualification.

Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2006); Hill v. Astrue,

289 F. App’x 289, 293 (10th Cir. 2008); Foy v. Barnhart, 139 F. App’x 39, 41-42

(10th Cir. 2005). These two lines of cases do not clash where the Appeals

Council rejects new evidence as non-qualifying and the claimant challenges that

ruling on judicial review–in that event, Martinez does not apply and our general

rule of de novo review permits us to resolve the matter and remand if the Appeals
-7-

Council erroneously rejected the evidence. Chambers, 389 F.3d at 1142. But, as

has been remarked, our cases do present a potential conflict if the Appeals

Council accepts new evidence: do we revisit the matter de novo (per Threet) or

are we bound by the agency’s decision to accept the evidence (per Martinez)? 

See Haddock v. Astrue, No. 08-cv-00393-PAB, 2009 WL 3162170, at *11 n.2

(D. Colo. Sept. 29, 2009). 

Identifying the limited ground of potential conflict here actually suggests

the path out of it. When the Appeals Council accepts new evidence, the claimant

obviously benefits (he may not succeed with such evidence, but that is a separate

issue), hence the only “aggrieved” party that could object is the agency. But the

agency would be objecting to its own ruling. In supporting a denial of benefits on

judicial review by challenging its own rulings as to the admission of the evidence

on which the denial was based, the agency would inherently be offering a new,

post-hoc rationale for its decision contrary to the general rule of SEC v. Chenery

Corp., 318 U.S. 80, 94-95 (1943), and SEC v. Chenery Corp., 332 U.S. 194, 196

(1947). See generally Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007);

Hackett v. Barnhart, 475 F.3d 1166, 1174-75 (10th Cir. 2007). Thus, there may

be good reason to hold the agency to its own decision when the Appeals Council

accepts new evidence, even though we exercise de novo review when the claimant

challenges the Appeal Council’s rejection of such evidence. 

We need not definitively resolve the matter here, however, since we can in
2 Mr. Krauser sometimes mentions anxiety in conjunction with depression

(continued...)

-8-

any event affirm the ALJ’s rejection of a depression impairment even with the

new evidence considered by the Appeals Council augmenting our record. As

noted above, the only evidence of diagnosis and treatment of depression is in a

report prepared two and a half months after the ALJ’s decision. And that report

does not purport to retroactively diagnose a condition existing in the period

preceding the ALJ’s decision, much less does it indicate any impaired functioning

relating back to that period. Indeed, Mr. Krauser’s post-decision complaints in

this regard are expressly framed in terms of his then-current circumstances

(worsened economically by the ALJ’s decision itself): “Patient reports he is

currently overwhelmed by his condition” and “report[s] he feels sad all the time

because of his current economic and health situation.” App. Vol. 2 at 397. It

bears repeating that there were no indications of depression in Mr. Krauser’s

medical records in the months immediately leading up to the hearing before the

ALJ; rather, his doctor specifically noted he had no psychological abnormalities.

Finally, Mr. Krauser mentioned being depressed just once, in passing, at the

hearing before the ALJ, id. at 51 (“I’m depressed, you know, feel pretty well

useless in life.”), admitted that he had never been tested or treated for depression,

id., and never suggested any functional impairment in this regard. On this record,

we cannot say the ALJ erred in his handling of the issue of depression.2

 
2

(...continued)

when objecting to the ALJ’s analysis of his mental condition. He does not,

however, present an argument on this alternative point that is sufficiently

developed to warrant appellate review. See Murrell v. Shalala, 43 F.3d 1388,

1389-90 n.2 (10th Cir. 1994). In any event, the case for impairment on the basis

of anxiety is even weaker than the case for depression. 

-9-

That, of course, does not deny the reality of the evidence indicating that

Mr. Krauser has since developed a condition that could impact a determination of

disability for a period following the decision in this case. Ordinarily, this would

be relevant only to a new application for benefits commencing after the ALJ’s

decision here. But, as explained below, we remand this case to the Commissioner

for further proceedings in light of other error, extending the potential period of

disability through the next date of decision, see 20 C.F.R. §§ 404.620(a), 416.330

(providing that applications for disability benefits remain in effect until ALJ

issues final decision); id. §§ 404.984(a), 416.1484(a) (providing that, if case is

remanded by courts for further consideration, ALJ’s decision on remand becomes

final decision of Commissioner). Accordingly, the ALJ should consider the

impact of the new evidence of depression on the determination of disability for

that additional period. Cf. Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir.

1991) (remanding for further proceedings on account of other error and noting

agency will need to determine effect of new evidence submitted in the interim). 
-10-

B. Analysis of Treating Physician Opinions

Just weeks before the ALJ hearing, Mr. Krauser’s treating physician,

Dr. Lambert, filled out a questionnaire specifying various work-related limitations

attributed to the pain and fatigue associated with his impairments. Among these

were significant exertional restrictions: sitting limited to four hours per day,

standing/walking limited to one to two hours per day, a need to alternate position

frequently to relieve pain, a need to lie down periodically throughout the day to

relieve pain, and a restriction to part-time work. App. Vol. 2 at 215. In addition,

Dr. Lambert noted that pain would interfere with Mr. Krauser’s pace of work and

completion of tasks in a timely manner, that he could be expected to be absent

from work more than three times a month, and that pain medication (Mr. Krauser

takes narcotic pain relievers) would interfere with his ability to concentrate or

reason effectively. Id. at 216. The obvious impact of such limitations was

confirmed at the hearing by the VE, who stated that Mr. Krauser could not work if

Dr. Lambert’s opinions were accepted. 

Our case law, the applicable regulations, and the Commissioner’s pertinent

Social Security Ruling (SSR) all make clear that in evaluating the medical

opinions of a claimant’s treating physician, the ALJ must complete a sequential

two-step inquiry, each step of which is analytically distinct. Here, the ALJ

simply stopped after the first step, and post-hoc efforts of the Commissioner and

the magistrate judge to work through the omitted second step for the ALJ are
-11-

prohibited by the Chenery principle we have already touched on above. 

The initial determination the ALJ must make with respect to a treating

physician’s medical opinion is whether it is conclusive, i.e., is to be accorded

“controlling weight,” on the matter to which it relates. Watkins v. Barnhart,

350 F.3d 1297, 1300 (10th Cir. 2003). Such an opinion must be given controlling

weight if it is well-supported by medically acceptable clinical or laboratory

diagnostic techniques and is not inconsistent with other substantial evidence in

the record. Id. (applying SSR 96-2p, 1996 WL 374188, at *2); 20 C.F.R.

§§ 404.1527(d)(2), 416.927(d)(2). If the opinion is deficient in either of these

respects, it is not to be given controlling weight. 

But finding such deficiencies to resolve the controlling-weight question

against a claimant does not end the inquiry. Even if a treating opinion is not

given controlling weight, it is still entitled to deference; at the second step in the

analysis, the ALJ must make clear how much weight the opinion is being given

(including whether it is being rejected outright) and give good reasons, tied to the

factors specified in the cited regulations for this particular purpose, for the weight

assigned. Watkins, 350 F.3d at 1300-01. If this is not done, a remand is required. 

Id. at 1301. As the relevant ruling explains:

Adjudicators must remember that a finding that a treating source

medical opinion is not well-supported by medically acceptable

clinical and laboratory diagnostic techniques or is inconsistent with

the other substantial evidence in the case record means only that the

opinion is not entitled to “controlling weight,” not that the opinion
-12-

should be rejected. Treating source medical opinions are still

entitled to deference and must be weighed using all of the factors

provided in [§§] 404.1527 and 416.927. In many cases, a treating

source’s medical opinion will be entitled to the greatest weight and

should be adopted, even if it does not meet the test for controlling

weight. 

SSR 96-2p, 1996 WL 374188, at *4 (emphasis added). Thus, a deficiency as to

the conditions for controlling weight raises the question of how much weight to

give the opinion, it does not resolve the latter, distinct inquiry. Langley v.

Barnhart, 373 F.3d 1116, 1120 (10th Cir. 2004) (holding that while absence of

objective testing provided basis for denying controlling weight to treating

physician’s opinion, “[t]he ALJ was not entitled, however, to completely reject

[it] on this basis”). This second inquiry is governed by its own set of factors,

summarized as follows: 

(1) the length of the treatment relationship and the frequency of

examination; (2) the nature and extent of the treatment relationship,

including the treatment provided and the kind of examination or

testing performed; (3) the degree to which the physician’s opinion is

supported by relevant evidence; (4) consistency between the opinion

and the record as a whole; (5) whether or not the physician is a

specialist in the area upon which an opinion is rendered; and

(6) other factors brought to the ALJ’s attention which tend to support

or contradict the opinion. 

Id. at 1119 (quotation omitted). In applying these factors, the ALJ’s findings

must be “sufficiently specific to make clear to any subsequent reviewers the

weight [he] gave to the treating source’s medical opinion and the reason for that

weight.” Id. (quotation omitted). 
3 In particular, the ALJ should identify what in Dr. Lambert’s own treatment

records he finds inconsistent with her specific opinions in the questionnaire, and

explain the inconsistency. For example, the Commissioner notes Mr. Krauser

reported “fair pain control” with narcotic medication, App. Vol. 2 at 223, but that

just begs the question of how and to what extent such a limited indication of pain

relief necessarily conflicts with the doctor’s assessment of the remaining impact

that pain has on Mr. Krauser’s functional abilities. 

-13-

Here, the ALJ concluded that Dr. Lambert’s questionnaire failed to satisfy

the conditions for controlling weight: it did not reference records of objective

testing and it was inconsistent with other evidence, including her treatment

records. App. Vol. 2 at 21. The first point is flatly incorrect: Dr. Lambert

referenced the x-rays taken for the degenerative joint problems and the blood

work for the liver problems (all done after she began treating Mr. Krauser in

January 2007), id. at 215, while noting that records prior to 2007 had not been

available for review, id. at 216. The second point is stated in conclusory fashion,

without reference to “those portions of the record with which [Dr. Lambert’s]

opinion was allegedly inconsistent.” Hamlin v. Barnhart, 365 F.3d 1208, 1217

(10th Cir. 2004). It may be possible to assemble support for this conclusion from

parts of the record cited elsewhere in the ALJ’s decision, but that is best left for

the ALJ himself to do in the proceedings on remand.3

 The decision not to give

controlling weight to Dr. Lambert’s opinion is not our primary concern with the

analysis here. Even leaving aside the noted complications with the grounds cited

for that decision, the ALJ’s assessment of Dr. Lambert’s opinion is patently
-14-

inadequate for the distinct reason that it ends halfway through the required

two-step analysis: the ALJ simply concluded that “Dr. Lambert’s opinion . . .

cannot be given controlling weight” and then said no more about it. Id. at 21. 

Just as in Watkins,

the ALJ failed to articulate the weight, if any, he gave Dr. Lambert’s

opinion, and he failed also to explain the reasons for assigning that

weight or for rejecting the opinion altogether. . . . We must remand

because we cannot meaningfully review the ALJ’s determination

absent findings explaining the weight assigned to the treating

physician’s opinion. 

350 F.3d at 1301. 

Finally, while not dispositive, there is a prominent red herring in the ALJ’s

discussion of Dr. Lambert’s opinion that should be identified so that it plays no

role in subsequent proceedings. The ALJ stated that Dr. Lambert “opined that the

claimant was not able to perform even sedentary work activity,” and then went on

to admonish “that some issues are not medical issues, but are administrative

findings. An example of such an issue is what an individual’s residual functional

capacity [RFC] is. Treating source opinions on issues reserved to the

Commissioner are never entitled to controlling weight or special significance[.]” 

App. Vol. 2 at 21. Dr. Lambert did not give any opinion on RFC. She found

specific work-related functional limitations, and then the ALJ determined the

consequences of those medical findings for purposes of RFC, i.e., that with those

limitations, Mr. Krauser would not be able to perform sedentary work. That is
-15-

precisely how the inquiry should proceed, with the treating physician performing

her medical role and the ALJ left to his role as adjudicator. Of course the

medical findings as to work-related limitations would, if accepted, impact the

ALJ’s determination of RFC–they always do, because that is what they are

for–but that does not make the medical findings an impermissible opinion on RFC

itself. If doctors could only give opinions on matters that could not affect RFC,

medical opinions would be inherently useless in disability determinations. 

C. Credibility Determination

The ALJ noted that “[i]n view of his degenerative joint disease, diabetes,

hepatitis B, hepatitis C, and hypertension, [Mr. Krauser] would undoubtedly have

some difficulties,” App. Vol. 2 at 21, but discredited his complaints of

significantly limiting pain and fatigue and concluded that a medium RFC was

reasonable, id. at 20, 21-22. This finding as to Mr. Krauser’s credibility may be

undercut by reconsideration on remand of the treating physician’s opinions, which

clearly support his subjective complaints–indeed, if those opinions were deemed

controlling, Mr. Krauser would, by the VE’s own testimony, have to be found

disabled, obviating further inquiry into Mr. Krauser’s credibility. Nevertheless,

we consider it appropriate to clarify a few points in case his credibility continues

to be material but must be reassessed in light of substantial (but non-controlling)

weight given to any of the treating physician’s relevant opinions. 

The ALJ quite rightfully noted Mr. Krauser’s admission that his hepatitis,
-16-

diabetes, and hypertension were under control with medication, though the ALJ

did not mention that Dr. Lambert also indicated that chronic hepatitis was still

“likely to contribute to progressive pain and fatigue,” App. Vol. 2 at 216. In any

event, the primary impairment here relates to Mr. Krauser’s arthritic conditions,

which have been treated with narcotic medication for some time. A significant

but problematic aspect of the ALJ’s rationale for discounting Mr. Krauser’s

subjective complaints of pain and related limitations had to do with his daily

activities, which were recited twice in the ALJ’s decision: “In a typical day, the

claimant stated that he exercised, watched television, did yard work, helped with

housework, and did his own laundry.” Id. at 20; see id. (“In fact, the claimant

testified that he was able to exercise, work in the yard, do laundry, perform

housekeeping chores, and drive.”). On its face, that summary, particularly daily

yard work, exercise, and housework, does sound inconsistent with the degree of

impairment voiced by Mr. Krauser and his doctor. But the specific facts behind

the generalities paint a very different picture. 

First of all, the suggestion of substantial work in the yard on a daily basis is

simply false. Mr. Krauser actually said that once every week or two he spends

ten to fifteen minutes working in the yard. Id. at 40, 46-47. As for helping with

housework (he lives with his sister and her husband), it is necessary to look at the

actual activities he was talking about, and Mr. Krauser specifically testified he

did not sweep floors, did not do any cooking, only put dishes in the dishwasher,
-17-

could just make a bed “halfway,” and was unable to pick up things off the floor. 

Id. 40-41; 43-44. The same need to assess generality in light of specifics is true

of the reference to exercise: Mr. Krauser said he can only exercise for four or

five minutes at a time, which he tries to do several times a day. Id. at 47. As for

watching television, that is hardly inconsistent with Mr. Krauser’s allegations of

pain and related concentration problems. See Hamlin, 365 F.3d at 1221. Thus,

when considered at a more detailed realistic level, Mr. Krauser’s activities are

more consistent with his claims of significant physical limitation than with the

ALJ’s conclusion that he is capable of full-time work at the medium exertional

level. On remand, the ALJ should keep in mind that “sporadic performance of

household tasks or work does not establish that a person is capable of engaging in

substantial gainful activity,” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th

Cir. 1993). 

D. Propriety of Step Five Determination – VE Hypothetical

Mr. Krauser has two basic objections regarding the hypothetical question

posed to the VE on which the ALJ based his step-five finding of no disability. 

The first, involving a misunderstanding of our case law, is meritless, while the

second is effectively mooted by our disposition of other issues on this appeal. 

First, citing Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996), he

objects that by merely relying on the VE’s identification of jobs accommodating

the functional capacity and restrictions set out in the hypothetical, without a
-18-

delineation of and explicit comparison with the corresponding demands of the

jobs in question, the ALJ improperly delegated the dispositive determination to

the VE. That would be a legitimate objection had the determination occurred, as

it did in Winfrey, at step four of the sequential analysis, which narrowly focuses

on whether the claimant can return to the particular work he has done in the past. 

But the analysis at step five is different, as we have repeatedly explained:

At step five of the sequential analysis, an ALJ may relate the

claimant’s impairments to a VE and then ask the VE whether, in his

opinion, there are any jobs in the national economy that the claimant

can perform. This approach, which requires the VE to make his own

evaluation of the mental and physical demands of various jobs and of

the claimant’s ability to meet those demands despite the enumerated

limitations, is acceptable at step five because the scope of potential

jobs is so broad.

Berna, 101 F.3d at 633 (quoting Winfrey, 92 F.3d at 1025). Proceeding by way of

hypothetical inquiry to the VE at step five was entirely proper. 

Second, Mr. Krauser objects that the hypothetical inquiry failed to

incorporate all of the impairments and limitations he contends should have been

recognized by the ALJ. This objection is obviously mooted by our earlier holding

that the case must be remanded for further consideration of the impairments and

limitations at issue. 

The judgment issued by the magistrate judge on behalf of the district court

is REVERSED and the cause is REMANDED to the district court with

instructions to remand to the Commissioner for further proceedings consistent

with this opinion.