                                                                                  FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                           September 9, 2011
                               FOR THE TENTH CIRCUIT
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

    RICHARD L. HAVENAR, III,

                 Plaintiff-Appellant,

    v.                                                          No. 10-5157
                                                      (D.C. No. 4:09-CV-00297-TLW)
    MICHAEL J. ASTRUE, Commissioner of                          (N.D. Okla.)
    the Social Security Administration,

                 Defendant-Appellee.


                                ORDER AND JUDGMENT*


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit Judge.


         In this social security case, Claimant Richard L. Havenar, III, appeals the denial of

his application for supplemental security income and disability insurance benefits based

on his low intellect and back problems. Mr. Havenar advances two claims on appeal:

1) an administrative law judge (ALJ) erred in evaluating whether his medical impairments

satisfy the criteria of listing 12.05C (mental retardation); and 2) the ALJ posed a



*
       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 This order and judgment is not binding precedent,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. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
hypothetical question to a vocational expert (VE) that did not accurately reflect all of his

mental limitations. We agree on both accounts and therefore reverse and remand for

further proceedings.

                                       I. Background

       Mr. Havenar claimed he became disabled on January 15, 2006, due to low

intellectual functioning and chronic back pain. According to the record, he advanced

through seventh grade in a special education curriculum, but dropped out of school due to

difficulty reading and writing. He worked as a tire technician but injured his back

stacking tires, and, in 2004, he underwent back surgery for a far lateral disc-herniation.

The severity of his back condition is well-documented, but suffice it to say that his

symptoms substantially improved after the surgery and then progressively deteriorated

over time. Mr. Havenar eventually applied for benefits and, while his application was

pending, he worked as a trash-truck driver earning $1,300.00 per month.

       During the application process, Mr. Havenar was examined by a clinical

psychologist, Dr. Denise LaGrand, who administered an intelligence test. The test results

yielded a verbal IQ score of 70, a performance IQ of 75, and a full scale IQ of 70. Based

on these scores, Dr. LaGrand determined that Mr. Havenar’s cognitive functioning fell

within the borderline intellectual functioning range, and “[the] results of the exam

appear[ed] to be a valid estimate of his overall functioning.” Aplt. App., Vol. 2 at 213.

Hence, she concluded that Mr. Havenar’s “ability to perform adequately in most job




                                              2
situations, handle the stress of a work setting and deal with supervisors or co-workers”

was “low to below average.” Id. at 214.

       Given this information, the ALJ determined at step five of the five-step sequential

evaluation process, see 20 C.F.R. §§ 404.1520, 416.920; Wall v. Astrue, 561 F.3d 1048,

1052 (10th Cir. 2009) (explaining the five-step process), that Mr. Havenar was not

disabled because he retained the residual functional capacity (RFC) to perform the full

range of light work, subject to the following limitations: “a Verbal IQ of 70 and a Full

Scale IQ of 70. He is limited to simple tasks that do not require reading and/or writing.

The claimant has mild to moderate low back pain but can remain focused.” Aplt. App.,

Vol. 2 at 16.1   The Appeals Council denied review, and a magistrate judge, acting on the

parties’ consent, affirmed the Commissioner’s decision. This appeal followed.

                                       II. Analysis

       This court independently reviews the Commissioner’s decision to ensure it is

supported by substantial evidence and determine whether the correct legal standards were

applied. Wall, 561 F.3d at 1052. “[W]e will not reweigh the evidence or retry the case,”

but we “examine the record as a whole, including anything that may undercut or detract




1
       The ALJ determined at step one that Mr. Havenar’s work as a trash-truck driver
constituted substantial gainful activity (SGA). See Aplt. App., Vol. 2 at 14. In his
appellate brief, the Commissioner alludes to the ALJ’s “alternate findings at steps two
through five,” see Aplee. Br. at 8 n.8, suggesting that the step-one finding was an
alternate basis for denying benefits. This allusion fails to develop the argument and is
incorrect in any event. The ALJ did not purport to deny benefits at step one, and, as a
consequence, it would be improper to invoke this rationale as an alternative basis to
affirm the denial of benefits. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).

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from the ALJ’s findings in order to determine if the substantiality test has been met.” Id.

(quotations omitted).

       Mr. Havenar contends the ALJ erred in evaluating whether he satisfied the criteria

of listing 12.05C at step three, and failing to pose an accurate hypothetical to the VE at

step five. As discussed below, both contentions have merit.

       A. Listing 12.05C

       To satisfy listing 12.05, “a claimant must meet the requirements of that listing’s

capsule definition as well as one of the four severity prongs for mental retardation as

listed in the regulations.” Id. at 1062 (alterations omitted). The relevant severity prong,

subsection C, “requires a showing of a ‘valid verbal, performance, or full scale IQ of 60

through 70 and a physical or other mental impairment imposing an additional and

significant work-related limitation of function.’” Id. (quoting listing 12.05C).

       Mr. Havenar correctly points out that his low IQ scores of 70 fall within the

presumptive range of listing 12.05C. See Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir.

1997) (reciting range as “60 through 70”).2 He also correctly points out that his back



2
        The magistrate judge incorrectly found that Mr. Havenar’s low IQ scores of 70 did
not fall within the presumptive range because, under Carpenter v. Astrue, a claimant
“must show ‘a valid verbal, performance, or full scale IQ of 60 to 69 inclusive.’”
537 F.3d 1264, 1266 (10th Cir. 2008) (quoting 20 C.F.R., Pt. 404, Subpt. P, App. 1
§ 12.05C). Carpenter, however, appears to misquote the listing based on previous
regulatory language. See 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 12.05C (1990) (requiring
“[a] valid verbal, performance, or full scale IQ of 60 to 69 inclusive”). We adhere to our
prior precedent interpreting the listing to include within its presumptive range IQ scores
of “60 through 70.” See Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996).

                                              4
problems, which the ALJ found to be a severe impairment at step two, satisfy the

de minimis standard for meeting the listing’s significant limitation requirement. See

Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (observing that the “significant

limitation” standard closely parallels the de minimis standard of step two). Despite these

circumstances, however, the ALJ found that Mr. Havenar did not meet or equal listing

12.05C. To explain his decision, the ALJ stated:

       In terms of the requirements in paragraph C, they are not met because the
       claimant does not have a valid verbal, performance, or full scale IQ of 60
       through 70 and a physical or other mental impairment imposing an
       additional and significant work-related limitation of function. In this case,
       these requirements are not met because the claimant’s IQ scores exceed the
       maximum allowed for meeting or equaling listing requirements by the
       absence of a physical or other mental impairment imposing an additional
       and significant work-related limitation of function.

Aplt. App., Vol. 2 at 15 (emphasis added).

       As Mr. Havenar suggests, this explanation is confusing at best. The emphasized

text seems to condition Mr. Havenar’s ability to satisfy the IQ requirement—regardless of

a qualifying score—on the presence of another impairment. If so, the ALJ applied the

wrong legal standard because there is no authority indicating that the criteria are

conditional, and even if they are, Mr. Havenar clearly satisfied both. If, however, the

ALJ meant something else, his explanation, whether by accident or design, is insufficient

to permit meaningful review. See Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir.

2011) (“We must remand because we cannot meaningfully review the ALJ’s

determination . . . .” (quotation omitted)).


                                               5
       Despite its deficiencies, the Commissioner contends the ALJ’s decision can be

upheld based on Mr. Havenar’s inability to satisfy the capsule definition of listing

12.05C. According to the capsule definition: “Mental retardation refers to significantly

subaverage general intellectual functioning with deficits in adaptive functioning initially

manifested during the developmental period; i.e., the evidence demonstrates or supports

onset of the impairment before age 22.” 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 12.05.

The problem with this argument is the ALJ never made any findings regarding the

capsule definition, and it would be beyond the scope of appellate review to make such a

finding in the first instance. Indeed, any such finding would be an impermissible

post-hoc justification for the ALJ’s deficient explanation. See Haga v. Astrue, 482 F.3d

1205, 1207-08 (10th Cir. 2007). And in any event, neither party provided this court with

the briefs filed in the district court, making it unknown whether the Commissioner

preserved this argument for appeal. Under these circumstances, we remand to the

Commissioner for a proper analysis and further explanation of the step-three decision.

       B. Step-Five Hypothetical Question

       Mr. Havenar also contends the ALJ omitted some of his mental limitations from

the hypothetical question posed to the VE. In particular, he refers to the opinion of

Dr. LaGrand, who believed his ability “to perform adequately in most job situations,

handle the stress of a work setting and deal with supervisors or co-workers is estimated to

be low to below average.” Aplt. App., Vol. 2 at 214. Mr. Havenar points out that the

ALJ’s hypothetical question only provided:

                                             6
       [The hypothetical claimant] is able to work under routine supervision. He
       is able to complete a normal day and week, work week, from a mental
       standpoint and he could adapt to a work situation. He is able to relate
       adequately to the general public, coworkers, and supervisors for work
       related purposes.

Id. at 40. Mr. Havenar claims these provisions do not reflect with precision the

limitations concerning coworkers, supervisors, and work-settings expressed in

Dr. LaGrand’s opinion. We agree.

       It is well-settled that an ALJ’s hypothetical question must accurately reflect all, but

only, the limitations borne out by the record. Decker v. Chater, 86 F.3d 953, 955

(10th Cir. 1996). The ALJ’s hypothetical question provides no allowance for

Mr. Havenar’s limited ability to interact with supervisors and coworkers; instead, it

assumes a hypothetical claimant with an adequate ability to relate to coworkers and

supervisors with only routine supervision.

       The Commissioner responds by directing the court to Dr. LaGrand’s comment that

Mr. Havenar could deal well with the public, an attribute that is reflected in the

hypothetical. But that specific comment is different from Dr. LaGrand’s conclusion that

Mr. Havenar had “low to below average” ability to deal with coworkers and supervisors.

And the ALJ’s hypothetical says nothing to account for those limitations. Nor does it

account for Mr. Havenar’s difficulty handling work-related stress.

       Nevertheless, the Commissioner also points out that the hypothetical is consistent

with conclusions reached by two consulting physicians. To be sure, the ALJ was entitled

to rely on the consulting physicians’ opinions, see SSR 96-6p, 1996 WL 374180, at *1-2,

                                              7
but neither doctor examined Mr. Havenar, and as a consequence, their opinions were

entitled to less weight, see 20 C.F.R. §§ 404.1527(d)(1) & 416.927(d)(1).3 Indeed, the

ALJ presumably afforded Dr. LaGrand’s opinion greater weight because he cited it in

support of his RFC finding. See Aplt. App., Vol. 2 at 17 (“[T]he above residual

functional capacity assessment is supported by the assessment[] of . . . Dr. LaGrand.”).

Yet the hypothetical question tracks the consulting doctors’ opinions with no provision

for the limitations expressed by Dr. LaGrand, and no explanation for their omission.

Because the ALJ failed to account for these limitations or explain why the limitations

were omitted, we remand to the Commissioner for proper analysis.

                                     III. Conclusion

       The judgment of the district court is REVERSED, and the case is REMANDED

with instructions to remand to the Commissioner for proper analysis consistent with this

disposition. Mr. Havenar’s request to proceed in forma pauperis is GRANTED, but his

request for attorney’s fees is DENIED.


                                                        Entered for the Court

                                                        Wade Brorby
                                                        Senior Circuit Judge


3
        The Commissioner correctly contends that this court may not reweigh the doctors’
opinions, but that argument has no relevance here. The regulations require an ALJ to
give greater weight to the opinion of an examining physician, such as Dr. LaGrand, than
that of a non-examining physician, or explain why the examining physician’s opinion is
not entitled to more weight. There is no need to reweigh evidence simply to require an
ALJ to properly analyze it.

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