* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. Civ. P. 25(d)(1), Shirley S. Chater, Commissioner of Social Security, was substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although the caption reflects this substitution, inthe text we continue to refer to the Secretary because she was the appropriate partyat the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

UNITED STATES COURT OF APPEALS Filed 10/17/96 FOR THE TENTH CIRCUIT

RUTH CROSSNO,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5009 (D.C. No. 94-C-974-J) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BRORBY, BARRETT, and EBEL, Circuit Judges.1 Pursuant to 28 U.S.C. § 636(c)(1), the parties cons ented to proceed before

the magistrate judge. Accordingly, our jurisdictio n arises under § 636(c)(3) and 28 U.S.C. § 1291. -2- 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 oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Ruth Crossno appeals from an order of the magistrate judge 1 affirming the decision of the Secretary to deny soc ial security disability insurance benefits, for which she last qualified on September30, 1990. Relying on expert vocational testimony, the Secretary concluded there were light and sedentary jobs in the national economy plaintiff could still perfo rm and, accordingly, found her not disabled at step five of the controlling sequen tial analysis. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). We closel y examine the record as a whole to determine whether the Secr etary’s decision is supported by substantial evidence and adheres to applicable l egal standards. Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994). For the rea sons explained below, we find the Secretary’s factual analysis internallyinconsistent and her application of the law problematic. We therefore reverse and r emand the case for further proceedings.2 At times, plaintiff has spoken of a crushed finger, but the medical record

unequivocally diagnoses and treats an exostosis, wh ich is a benign bone tumor consisting of an outgrowth of bone with a cartilagi nous cap. See Steadman’s Medical Dictionary at 549 (25th ed. 1989); The Merc k Manual of Diagnosis and Therapy at 1351 (16th ed. 1992). -3- Plaintiff alleged disability based on an exostosis 2 of her right index finger, and a more general condition of degenerative arthri tis affecting her knees, hips, and hands. The exostosis, which prompted surgery i n November 1990 but had been noted in the medical records long before that time, clearly affected plaintiff before the September 1990 insurance cutoff date. I ndeed, plaintiff testified to considerable pain and significant loss of function (inability to grip large or small objects, such as a mop or pencil) associated with the exostosis before the cutoff date. See Appellant’s Appendix (App.) II at 87-88, 90-91. T he arthritis, on the other hand, is not specifically treated as such in the medical record until a year later. Plaintiff complained at the December 1993 h earing of severe problems caused by her then-emergent arthritic condition, se e id. at 89-91, while her retrospective testimony regarding this deterioratin g condition was that “it was starting about [March 1990] . . . [b]ut it wasn’t r eal bad then, it was getting worse. It’s getting worse every day,” id. at 89. The ALJ began his evaluation of the medical evidenc e by stating that all of the records prepared by plaintiff’s treating physic ians after the eligibility cutoff3 This unqualified statement reflects a basic misunde rstanding of disability

onset determinations, which properly, often necessarily, rest on inferences from just such after-the-fact evidence. See, e.g. , Flint v. Sullivan , 951 F.2d 264, 267 (10th Cir. 1991); Potter v. Secretary of Health & H uman Servs. , 905 F.2d 1346, 1348-49 (10th Cir. 1990). Further, this misunderst anding may have been the reason for the ALJ’s asserted failure to develop th e record by soliciting medical opinions regarding the prior onset and extent of pl aintiff’s arthritis. However, given the reversible error noted later in this orde r and judgment, we need not decide whether the legal misstatement quoted above was also material error. -4- date are “not relevant for a determination of the c laimant’s disability status.” 3 Id. at 60. Accordingly, the ALJ recognized a severe impairment affecting the right index finger afflicted with the exostosis, but appe ared to reject any additional impairment associated with plaintiff’s arthritic co ndition. See App. II at 59, 60-61, 64-65. On the other hand, however, he foundplaintiff capable only of light exertional activity further limited by a need for periodic postural change, id. at 62, 65, which clearly corresponds to the systemi c arthritis rather than the finger impairment. Moreover, while the vague and concluso ry rationale for this exertional limitation--“that the claimant’s testimo ny is credible to the extent that it is consistent with a residual functional capacity of light limited by a need to change positions from time to time,” id. at 62--fails to specify its relation to plaintiff’s arthritis (or anything else), that cond ition was the primary focus of the testimony referred to by the ALJ. That brings us to the critical testimony elicited f rom the vocational expert. The ALJ posed the following hypothetical inquiry:-5-

Let’s assume that we have a female, who is 47 years of age, has not a great education, with a so-so ability to read and w rite and use numbers. Nothing that would help you on an occupat ion particularly, other than understanding what is going on around. Now, if you would give me the definition of sedentary and lightwork.

. . . . Okay. Now, let’s also assume . . . that the person has arthritis in the hands and the feet , for which they are taking medication. And that they also suffer chronic pain, as a result of the a rthritis, in that it is noticeable. But she can’t get relief from the medi cation. And she continues to remain attentive and responsive with m edication, and reasonably alert to perform sedentary or light func tions. And she’ll find it necessary to change her position from time to time to relieve her symptomatology. . . .

. . . . Now, are there any jobs, unskilled nature, that she might perform? Id. at 97-98 (emphasis added). As the underscored passage reflects, this inquiry r ecognizes the arthritic condition established in the very medical records t he ALJ categorically refused to consider (including its manifestation in plaintiff’ s hands, which, unlike its effect on her legs, was not even implicitly suggested in t he ALJ’s discussion of the evidence), while omitting any mention of the exosto sis and attendant surgery affecting plaintiff’s index finger--that is, the si ngle, particularized impairment reflected in the pre-cutoff evidence and previouslyacknowledged as severe by the ALJ. “[T]he ALJ’s failure to include in his hypoth etical inquiry to the vocational expert anylimitation in this [latter] regard violated the es tablished rule that such-6-

inquiries must include all (and only) those impairm ents borne out by the evidentiary record.” Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995). As in
Evans , id. at 532, this omission is particularly significant in light of the expert’s subsequent indication that the inability to grip an d hold objects would impair plaintiff’s ability to do the jobs identified in re sponse to the ALJ’s inquiry. See App. II at 99. We note that even if the ALJ’s reference to the art hritis in plaintiff’s hands were meant somehow to encompass or incorporate the distinct exostosis impairment--an issue the ALJ never addressed--that would not cure the deficiency in the hypothetical. The arthritis reference, whic h focussed solely on pain and did not acknowledge any loss of function, would still b e materially incomplete. See
Evans , 55 F.3d at 532 n.2. As the ALJ deliberately did not address the arthritis evidence, we would be left to speculate why he reco gnized irremediable pain but no functional loss in the hands. This is particula rly problematic given the ALJ’s finding that the exostosis (assumed, arguendo, to b e encompassed by the arthritis) was itself a severe impairment, i.e., a condition t hat “significantly limits” the claimant’s “ability to do basic work activities.” 20 C.F.R. § 404.1520(c). In light of the problems noted above, the vocationa l expert’s testimony cannot constitute the substantial evidence necessary to carry the Secretary’s burden at step five, and the Secretary’s determinat ion of nondisability must,-7-

accordingly, be reversed. Given the inconsistency and obscurity of much of the ALJ’s reasoning and the paucity of useful medical e vidence in the record, significant reconsideration of the case and/or further evidentiary proceedings will be necessary before a definitive disposition will b e possible. Under the circumstances, additional discussion of the legal and factual objections raised to the Secretary’s existing decision would serve no us eful purpose. The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and the cause is REMANDED to the district court to remand, in turn, to the Commissioner for further pr oceedings consistent herewith.

Entered for the Court

James E. Barrett Senior Circuit Judge