                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          July 5, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    RO BERT H . M IRA CLE,

                Plaintiff-Appellant,

    v.                                                    No. 05-6308
                                                    (D.C. No. CIV-04-769-W )
    JO A NN E B. BA RN HA RT,                             (W .D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




         Robert H. M iracle appeals from an order of the district court affirming the

Commissioner’s decision denying his application for Social Security disability

and Disabled Adult Child’s benefits, which had a protective filing date of M ay 4,




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
2001. 1 He alleged disability based on bipolar disorder with an onset date of April

1, 1999, when he was nineteen years old. An administrative law judge (ALJ)

determined that he could return to his past relevant work as a stocker.

      In this appeal, M r. M iracle raises four issues. He argues that the ALJ failed

to correctly assess the “longitudinal” nature of his mental impairment. He

contends that there is substantial evidence to support his allegations of a disabling

mental impairment. He argues that his mental impairment precludes him from

performing his past relevant work. Finally, he contends that the district court

improperly failed to make a de novo review of the magistrate judge’s report and

recommendation in his case. Because the ALJ failed to give proper consideration

to all the evidence and the record and to make proper findings concerning the

interaction between M r. M iracle’s RFC and his past relevant work, and because

he inadequately developed the record concerning M r. M iracle’s impairments and

his ability to return to his past relevant work, we must reverse and remand.

                                      FACTS

      M r. M iracle was born on September 14, 1979. On February 17, 1997, when

he w as seventeen, his mother brought M r. M iracle to see his family doctor,



1
       M r. M iracle applied for Disabled Adult Child’s benefits based on the
earnings record of his father, Roger Dale M iracle, who died fully insured on
January 30, 2000. To obtain the benefits, M r. M iracle needed to demonstrate,
among other things, that he had a disability before attaining age 22 and that this
disability continued without interruption through the date of his application.
See 42 U.S.C. § 402(d).

                                         -2-
Dr. Pope. M r. M iracle reported having problems staying in school and had

trouble “defining reality.” A plt. App. at 159. He had done drugs and engaged in

binge drinking. He reported a fear that he might hurt somebody. Dr. Pope

thought he showed “some almost delusional thinking at times with very decreased

concentration” and that a “[p]ersonality disorder is probable.” Id. at 158.

Dr. Pope recommended that M r. M iracle obtain psychological counseling.

      By September 11, 1997, things were much w orse. M r. M iracle had dropped

out of school, and was experiencing trouble sleeping. He had gained twenty-three

pounds, had stopped seeing his friends, and hardly ever left the house. Dr. Pope

observed that M r. M iracle had “pressured speech, flight of ideas, and has a very

low attention span” and that he “comes up with off the wall comments and

completely changes the subject.” Id. at 154. M r. M iracle w as hospitalized in

mid-September 1997, at Bethany Pavilion Hospital at which time he was initially

diagnosed with Psychosis, NOS (not otherwise specified), and later with paranoid

schizophrenia. After his discharge from the hospital, he received follow-up

treatment from a psychiatrist, Dr. M cNeil, from September 25, 1997, to

November 17, 2000. Dr. M cNeil diagnosed him with schizoaffective disorder and

treated him with a mood stabilizer and anti-psychotic medication. 2 The record



2
       The ALJ found that M r. M iracle has a “mental health impairment.” A plt.
App. at 53. M r. M iracle identified his condition as bipolar disorder on documents
filed with the agency. See, e.g., id. at 116. The medical records contain many
                                                                        (continued...)

                                         -3-
does not contain any medical records from the 1997 hospitalization nor any

treatment or progress notes from M r. M iracle’s three years of treatment with

Dr. M cNeil. 3 It does contain a letter from Dr. M cNeil, dated January 7, 2002,

summarizing his diagnosis and treatment of M r. M iracle.

      Records from the family doctor, Dr. Pope, during the period of October 31,

1997, to January 31, 2001, show sporadic visits for ear infections and hearing

problem s, with occasional notations that M r. M iracle continued on his psychiatric

medications. The next significant medical record pertaining to M r. M iracle’s

mental status is dated April 2, 2001, six months after he stopped seeing

Dr. M cNeil and a month before he filed his application for benefits. Dr. Pope

noted on that occasion:

      Patient comes in reporting he has been having some pain in his low
      back, thinks that he has had a kidney stone in the past, he reports it
      was “delirious pain.” Patient reports he was screaming, he went
      outside to try and cool off, but took a blanket w ith no clothes.
      Patient reports also fever and chills. . . . He did have 2 beers
      yesterday. . . . As well he did some marijuana over the weekend.
      Denies any . . . suicidal/homicidal ideation. . . .

      Patient is unshowered, wearing polo shirt, briefs, and flip-flops.
      Patient very suggestable, having trouble continuing with individual
      topics. To grass is always greener on the other side of the fence he


2
 (...continued)
different mental diagnoses, some of which note the existence of bipolar-type
symptoms. Following his own assertions, we have referred to his condition
generically as “bipolar disorder.”
3
      It appears that M r. M iracle’s representative attempted to obtain these
records but was unable to do so. Aplt. A pp. at 131.

                                         -4-
       wrote my grass is better. To every cloud has a s[il]ver lining he
       wrote clouds have lots of different linings. To people that live in
       glass houses should not throw stones he reports “lots of stones.”
       Patient was completely oriented to date and time.

Id. at 144.

       Dr. Pope diagnosed M r. M iracle w ith a psychotic episode, talked to him

about receiving inpatient treatment and to get back on his medications, and

contacted the mental health authority in Norman, Oklahoma, and made

arrangements for M r. M iracle to go there that afternoon. There is nothing in the

record to indicate whether M r. M iracle kept his appointment with the mental

health authority, or if so, what sort of diagnosis or treatment he received there.

       The next evidence in the record concerning M r. M iracle’s mental health is a

disability evaluation report conducted by agency consultant Dr. Chakraburtty

three months later, on July 21, 2001. Dr. Chakraburtty noted that M r. M iracle

“reports that he is not having any psychiatric treatment at the present time.”

Id. at 163. He diagnosed him with “Psychosis, NOS,” “History of Bipolar

Disorder,” and “Personality Disorder, NOS, with dependent traits.” Id. at 165.

       Less than a month later, in August 2001, M r. M iracle obtained a

comprehensive treatment plan and began receiving mental health services from

Chisholm Trail Counseling Services. He was diagnosed at Chisholm Trail with




                                          -5-
schizoaffective disorder, bipolar type. 4 It was noted that he was living with his

mother.

      The agency denied his applications initially and on reconsideration. On

August 19, 2002, M r. M iracle received a de novo hearing before an ALJ. The

ALJ determined that Mr. Miracle had severe impairments, namely “mental health

impairment and some hearing difficulty.” Aplt. App. at 53. He further

determined that Mr. Miracle retained the residual functional capacity (RFC) to

perform “the physical demands of a full range of physical activities. However, he

should not be expected to understand, remember, and carry out detailed or

complex job instructions; work closely with the general public; or perform tasks

requiring ability to hear with the left ear.” Id. at 56.




4
       The Chisholm Trail records before the A LJ covered the period from August
7, 2001, through February 6, 2002. See Aplt. App. at 206-47. Curiously, in his
brief, M r. M iracle also cites to Chisholm Trail records from M ay 29, 2002,
through July 26, 2003. He even supplies a purported record reference to these
documents. See Aplt. Br. at 22-23 (citing Aplt. App. at 211-47). These medical
records are not contained in either copy of the appendix filed with this court,
however. Neither, it appears, w ere they before the ALJ or the Appeals Council.

      The ALJ apparently received exhibits at the hearing, including exhibits 5F
and 6F, records provided by Chisholm Trail on February 13, 2002, covering the
time period we have noted, but nothing later than this. See Aplt. App. at 34, 247,
265. The ALJ did not hold the record open, see id. at 266, 275, and nothing in the
record indicates that M r. M iracle attempted to supplement the record before the
Appeals Council w ith anything but a brief, id. at 36. W e conclude that the
records cited on pages 22 and 23 of M r. M iracle’s brief are not part of the record
on appeal, and we will not consider them.

                                          -6-
                             STANDARD OF REVIEW

      The ALJ found that M r. M iracle could return to his past relevant work as a

stocker, and was therefore not disabled. See Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988) (outlining five-step test for disability). The Appeals

Council denied review, making the ALJ’s decision the Commissioner’s final

decision. We review the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence in the record and whether

the correct legal standards were applied. See Andrade v. Sec’y of Health &

Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)

(quotations omitted).

                                     ANALYSIS

             1. Failure to develop the record

      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams, 844 F.2d at 750-52.

The ALJ decided this case at step four, finding that Mr. Miracle could return to

his past relevant work. The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. See id. at 751 n.2.

      Although M r. M iracle bore the burden of establishing his disability, “unlike

the typical judicial proceeding, a social security disability hearing is


                                          -7-
nonadversarial, with the ALJ responsible in every case to ensure that an adequate

record is developed during the disability hearing consistent with the issues

raised.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) (citation and

quotation omitted). The duty is particularly acute where the claimant is

unrepresented at the hearing, Henrie v. United States Dep’t of Health & Human

Servs., 13 F.3d 359, 361 (10th Cir. 1993), or (as here) is represented by a

non-attorney. In addition to developing the record at the hearing through careful

questioning, and by obtaining the services of a consultative examiner when

necessary, the ALJ “has the duty to develop the record by obtaining pertinent,

available medical records which come to his attention during the course of the

hearing.” Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996).

      The most striking thing about the administrative record is the absence of

known medical records directly relevant to significant issues surrounding

M r. Miracle’s mental disability. As noted, the record does not contain any

medical records from his 1997 hospitalization at Bethany Pavilion Psychiatric

Hospital nor any treatment or progress notes from M r. M iracle’s three years of

treatment with Dr. M cNeil, from 1997 to 2000. Records also appear to be

missing from any follow-up treatment he obtained through a hospitalization

recommended by his family doctor after a psychotic episode in April 2001.

The government contends that M r. M iracle w aived any objection as to this

woefully under-developed state of the record by failing to raise this issue in


                                         -8-
district court until he filed his objections to the magistrate judge’s report and

recommendation. These vast gaps in the record, however, are directly relevant to

the other issues that he did properly preserve, and cannot be simply swept under

the rug by a narrow application of the waiver rule.

      2. “Longitudinal nature” of mental impairment

      The ALJ made only passing reference to the three years of mental health

treatment M r. M iracle received from Dr. M cNeil prior to the time he applied for

benefits. W hile an ALJ need not discuss every piece of evidence in the record,

the A LJ appears to have affirmatively and selectively misread the record

concerning M r. M iracle’s impairment. At several times in his decision, the ALJ

relied on the fact that M r. M iracle was not receiving mental health care at the

time he filed his application for benefits. See Aplt. App. at 53 (“After filing his

applications for benefits, the claimant sought mental health counseling. . . .

Although the claimant obtained psychological counseling after filing for benefits,

he w as not receiving mental health care as of the time of his application.”);

id. at 55 (“The claimant testified . . . that he had recently started mental health

treatment . . . .”). This reading of the record, which ignored M r. M iracle’s

long-standing treatment history, reflected the kind of misleading selective inquiry

courts have decried on numerous occasions. See, e.g., Sisco v. United States

Dep’t of Health & H um an Servs., 10 F.3d 739, 743 (10th Cir. 1993). M oreover,

the ALJ’s failure to develop the record by obtaining the records pertaining to this

                                          -9-
treatment facilitated his failure to consider the medical evidence showing a

long-standing record of impairment.

      3. Nature of impairment and past relevant w ork

      A key issue in this case involved whether M r. M iracle was capable of

sustained work, given his spotty employment record and his frequent job changes,

many of which were attributed by himself and his treating physician to his mental

impairment. A disability report prepared by his representative informed the ALJ

that, “Robert has had frequent job changes due to an inability to stay focused,

complete tasks, Has been fired, has had trouble relating to others at work, and

has had to quit because of too much pressure at w ork.” Aplt. A pp. at 116.

Dr. M cNeil explained that M r. M iracle “had several different jobs, all of which he

had quit for various reasons. W hat seemed to be clear from his reports is that he

had difficulties with interpersonal relations, both with co-workers and in service

related jobs.” Id. at 167. The VE testified that his w ork record was quite “scant”

and that it “seem[ed] like work attempts to me.” Id. at 272.

      Even if we assume that M r. M iracle’s previous work attempts, only a

few of which lasted more than a month, represented “past relevant w ork,”

see 20 C.F.R. § 404.1560(b)(1) (defining past relevant work), given the issues

developed prior to the hearing, the ALJ needed to build an adequate record and

make proper findings concerning M r. M iracle’s ability to work with others on a

sustained basis, and the demands of his past relevant work in terms of relating to

                                        -10-
co-w orkers and the general public. See SSR 96-8p, 1996 W L 374184, at *5

(stating that ALJ must consider work attempts and lay evidence in determining

RFC).

        M r. M iracle’s representative asked him one question about the problems he

had had with employment. He responded that he had experienced the “[f]eeling

of being paranoid, like people were out to get me, and like somebody was going

to do something bad to me.” Id. at 267. He stated, “I couldn’t work right because

I thought I would hear things that weren’t present to others.” Id. M r. M iracle

further testified that he did not have any friends and did not do things w ith people

outside his family. Id. at 269. The ALJ only asked M r. M iracle one question at

the hearing, concerning w hether he had obtained a GED.

        The A LJ asked the V E about the specific tasks involved in being a stocker,

the kind of work M r. M iracle had previously performed. W hile he asked whether

the jobs would require significant interaction with the general public (to which

the VE responded no), he did not ask any questions concerning what sort of

interaction was required with M r. M iracle’s co-workers. As mentioned,

Dr. M cNeil stated that M r. M iracle had quit many of his prior jobs and had

“difficulties with interpersonal relations, both with co-workers and with

customers in service related jobs.” Id. at 167 (emphasis added). He also opined

that “[d]uring the time that I treated [M r. M iracle], he consistently showed mental




                                         -11-
status signs and symptoms which would make employment difficult in . . . jobs

which require significant amounts of interpersonal contact.” Id. at 168.

      Dr. M cNeil did not distinguish between difficulties M r. M iracle w ould

experience in dealing with co-workers and with the general public. The ALJ

concluded in his decision, however, giving no reason for ignoring Dr. M cN eil’s

opinion concerning jobs involving interpersonal contact, that M r. M iracle “is able

to interact appropriately with others on a superficial level [but] . . . should not be

expected to . . . work closely with the general public.” Id. at 55. As noted, there

was no testimony about the demands of M r. M iracle’s past relevant work when it

came to relating to his co-workers. M oreover, the ALJ asked the VE only one

hypothetical question, concerning M r. M iracle’s ability to perform work

activities, and that question contained no indication of any interpersonal

difficulties, either with the public or with co-workers. Aplt. App. at 274-75. 5

“[T]estimony elicited by hypothetical questions that do not relate with precision




5
      The ALJ asked:

             Now let’s assume I have an individual that could work but that
      – and taking only the jobs that he’s had in the past, I’m not looking
      at anything else at the present time. Let’s assume I had an individual
      that could w ork, but let’s assume also that he w ould – and let’s
      assume he would be a very good employee, but he’s going to have to
      have more time off than the average employee would have to have.
      At what point in time would he no longer have a job?

Aplt. A pp. at 274-75.

                                          -12-
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) (first alteration in original). W e conclude that the ALJ failed

to follow the appropriate legal standards in reaching his conclusions

about M r. M iracle’s ability to work and his past relevant work, and failed to

adequately develop the record concerning these issues.

      4. De novo review of magistrate judge’s recommendation

      As we are reversing the district court’s decision affirming the agency’s

determination, it is unnecessary to determine whether the district court properly

reviewed the magistrate judge’s report and recommendation.

      This case is REVERSED and REM ANDED to the district court, with

instructions to remand to the agency for further proceedings in accordance with

this order and judgment.

                                                Entered for the Court



                                                Robert H. Henry
                                                Circuit Judge




                                         -13-
