NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0162n.06 Filed: February 24, 2009
No. 08-1586
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
ADDISON WHITE, JR., ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN COMMISSIONER OF SOCIAL ) SECURITY, ) ) OPINION Defendant-Appellee. ) _______________________________________)
Before: MERRITT, MOORE, and COLE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Addison White, Jr.,
appeals from the district court’s judgment affirming the decision of the Commissioner of Social
Security, which denied his claim for disability insurance benefits under 42 U.S.C. §§ 416(i), 423.
White makes five arguments on appeal: (1) the Administrative Law Judge (“ALJ”) erred by not
properly considering the opinions of White’s treating physicians; (2) the ALJ erred by failing to find
that White had a significant mental impairment despite clear evidence otherwise; (3) the ALJ did not
have substantial evidence to support the finding that White could have performed a limited range
of light work; (4) the ALJ erred by failing to follow the vocational expert’s testimony in response
to hypothetical questions that accurately portrayed White’s impairments; and (5) the district court
erred by failing to adopt the Report and Recommendation of the magistrate judge. For the reasons discussed below, we REVERSE the judgment of the district court upholding the Commissioner’s
decision and REMAND with instructions to return the claim to the Commissioner for further
proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
Before claiming disability in 2003, White consistently had been employed as an electrician
since 1986, and previously had worked as a die cast operator since 1976. Since 1997, White has
suffered from pain in his right thigh due to “meralgia paresthetica caused by entrapment of the lateral
femoral cutaneous nerve.” Administrative Record (“A.R.”) at 144 (EMG/NCT Study 9/2/97). White
began seeing a pain specialist, Dr. Thomas Basch, who started administering nerve blocks to White
in 2001. In May 2002, Dr. Basch noted that the nerve blocks “help [White] for a month or two but
then the pain returns” and that White’s “job as an electrician is getting harder and harder because of
the pain.” A.R. at 235 (Basch Pain Care Report 5/3/2002). Later in 2002, White underwent a
cryoablation procedure, but the procedure and recovery were severely painful, and afforded him only
one week of relief.
In January 2003, White reported to Dr. Basch that his leg remained “numb and painful,” and
Dr. Basch noted that nerve blocks have “been a hit or miss proposition” and that surgical
intervention may be appropriate. A.R. at 236 (Basch Pain Care Report 1/21/2003). The surgeon
with whom White consulted, however, recommended against surgery. White also tried physical
therapy with no success, and Dr. Basch was hesitant to prescribe stronger pain medication because
the side effects would interfere with White’s job as an electrician. Dr. Basch eventually noted that
White may have to apply for disability. White continued with the nerve blocks, but also noted that
2 his pain was worsening and that the injections only gave temporary relief. On May 7, 2003, Dr.
Basch noted,
At this point I simply don’t have much else to offer [White]. He is seriously considering applying for disability and I think the time has come to do this. The work he does as an electrician involves sitting, squatting, twisting and simply places pressure and torsion across this branch of the inguinal nerve. In the patients I have seen with this problem, it seems like we’ve either been able to “hit a home run” or have been unable to treat it well at all and unfortunately [White] is falling into the latter category.
A.R. at 230 (Basch Pain Care Report 5/7/2003). Dr. Basch subsequently “took [White] off work.”
A.R. at 229 (Basch Office Notes 9/15/2003). Dr. Basch noted that White would be helped by
walking more, but found that when White did increase his walking as instructed, the pain became
unbearable. White continued to receive injections, but the relief lasted only between three to seven
weeks. In July 2004, White’s primary care physician, Dr. Mervyn Smith, also put White off work
“indefinitely” due to his “[right] leg nerve damage.” A.R. at 242 (Disability Certificate). In April
2005, Dr. Basch noted that White “did quite well” with the most recent nerve block but also noted
that “as he becomes more active with the improving weather, there are times that his groin pain and
anterior thigh pain really flares” and that “there are, unfortunately, no cures for this sort of
condition.” A.R. at 250 (Basch Office Notes 4/26/2005).
During this time, White also was treated for depression, both by Dr. Basch and by a
counseling psychologist, Dr. McDowell. White began seeing Dr. McDowell in May 2003, and she
diagnosed him with adjustment disorder and depression, finding that he had a global assessment of
functioning (“GAF”) score of 55, indicating moderate symptoms. White began seeing Dr.
McDowell frequently, three times a month, but by June 2005 he was going for counseling only every
two or three months. Dr. Basch also was treating White for depression and prescribed anti-
3 depressant medication upon finding that White “is becoming depressed and discouraged. His wife
concurs. . . . The chronic pain plus what appears to be an impending disability is weighing heavily
upon him.” A.R. at 229 (Basch Office Notes 9/15/2003). At a later visit, Dr. Basch increased the
dosage because White “feels overwhelmingly depressed because of the combination of the chronic
pain and inability to sleep because of pain.” A.R. at 252 (Basch Office Notes 1/21/2005).
On June 16, 2003, White applied for disability insurance benefits under 42 U.S.C. §§ 416(i)
and 423, alleging that he became disabled on May 7, 2003. A state agency physician, who did not
examine White, completed a residual functional capacity (“RFC”) assessment, and found that White
was not disabled. The physician noted that this conclusion differed from the those of White’s
treating physicians because their statements were not supported by the evidence and findings, but
elaborated no further. The state agency denied his claim in December 2003.
B. Administrative Hearing
After the state agency denied his claim, White requested a hearing before an administrative
law judge (“ALJ”), and a hearing was held on May 12, 2005. At the hearing, the ALJ heard
testimony from White and from a vocational expert.
Regarding his daily activities, White testified that he drove very little because of his pain and
the effect of his pain medications, that he supervised his sons in doing yard work because he could
no longer do it himself, and that he could no longer help his children get ready in the morning or help
them with their homework. He testified that he experienced fatigue and forgetfulness with his
medication, which caused him to take frequent naps, and prevented him from being able to play card
games. Regarding his physical capacities, he testified that he can sit for only about thirty minutes
without medication, but when he takes medication his head is not clear. He could stand in one place
4 for only ten to fifteen minutes, both because of the pain and because of dizziness from the
medication. He also testified that he could walk perhaps a block without his medication. White
noted that Dr. Basch had planned to write him a prescription for a cane, but White had already
obtained one. With regard to the nerve blocks, White testified that they give him two or three weeks
of relief but also leave his leg swollen. He also noted that he still has pain and must take medication
even after the nerve blocks.
The ALJ then questioned a vocational expert. The ALJ posed three hypothetical questions
to the vocational expert. The third question, upon which the ALJ relied in his decision, asked the
vocational expert
to assume an individual the same age as the claimant, same educational background and with the journeyman’s card and same past work you described. This person is limited to doing light exertional work with occasional postural movement, and occasional pushing and pulling with the right lower extremity and also needing to alternate sitting and standing at will, so I’ll call that a sit/stand at will option.
A.R. at 315-16 (Hr’g Tr. at 46-47). In response, the vocational expert stated that jobs with these
restrictions included “[i]nspector, tester, sorter, stamper, weigher,” “cashier,” and “ticket sales,” and
that the number of jobs in each that would accommodate a sit/stand option were 4500, 16,000, and
3000, respectively. A.R. at 316 (Hr’g Tr. at 47). The expert later agreed, however, that all of these
jobs would be eliminated if the person dozes off during the day or has mental confusion and
forgetfulness.
C. ALJ Decision
On December 18, 2005, the ALJ issued a decision finding that White was not disabled. The
ALJ reviewed White’s claim under the five-step analysis set forth in 20 C.F.R. § 404.1520.
Although the ALJ found that White’s “neuropathic pain in the right thigh from lateral femoral
5 cutaneous nerve entrapment” was a severe impairment, A.R. at 18 (ALJ Decision at 5), and
prevented White from doing his past relevant work, the ALJ found that White was not disabled
because he was capable of performing other work that exists in significant numbers in the national
economy.
The ALJ decided not to “give great weight to the opinions of Dr. Basch and Dr. Smith
regarding the claimant’s ability to perform work-related activities because those opinions take into
consideration only the claimant’s past work which was at the medium and heavy exertional level;
and not ‘other work.’” A.R. at 17-18 (ALJ Decision at 4-5). The ALJ further discounted Dr.
Basch’s opinion because it “is inconsistent with his own office notes that indicate the claimant
receives good pain relief for four to seven weeks from nerve block injections.” A.R. at 18 (ALJ
Decision at 5). The ALJ went on to find that White’s “neuropathic pain in the right thigh from
lateral femoral cutaneous nerve entrapment” is a “severe” impairment, but found that his other
impairments, including his mental impairment, were not “severe.” Id. In discussing the mental
impairment, the ALJ found that White was diagnosed with “adjustment disorder” by Dr. McDowell
but takes anti-depressants “more for pain relief and sleep than for depressive symptoms,” “does not
participate in mental health counseling on a consistent basis and has only mild to no limitations in
his activities of daily living, social functioning and concentration, persistence and pace due to a
mental health impairment.” Id.
The ALJ went on to determine White’s RFC, defined as “the most an individual can still do
after considering the effects of physical and/or mental limitations that affect the ability to perform
work-related tasks.” Id. The ALJ discussed some of White’s testimony about the activities he
performs, noting that White “was teaching his son how to do yard work, drove, used a computer,
6 went to the store with his family, and handled the family finances.” A.R. at 19 (ALJ Decision at 6).
He also noted White’s testimony “that he experienced fatigue and forgetfulness from his medications
but still drove a vehicle” and that, despite White’s testimony that he went to counseling once a
month, “[t]he records clearly show that the claimant does not see his counselor once a month.” Id.
After discussing White’s testimony that he was “limited to sitting thirty minutes, standing fifteen
minutes with a cane, walking one block with a cane, and lifting a gallon of milk,” the ALJ found “no
evidence in the record that the claimant was prescribed a cane or has any difficulty walking.” Id.
Because of these apparent inconsistencies, the ALJ found that “[t]he claimant’s description of his
limitations exceeds medical substantiation, is not consistent with other evidence and is not credible.”
Id. Accordingly, the ALJ found that White “retains the following residual functional capacity: light
work with a sit/stand option; occasional pushing and pulling with [right lower extremity]; and
occasional bending, kneeling, squatting, crouching, and crawling.” Id. The ALJ found that this RFC
prevented White from performing his past relevant work as an electrician.
Because the ALJ found that the RFC included “additional exertional and/or non-exertional
limitations,” the ALJ looked to the hypothetical questions posed to the vocational expert to
determine whether there were a significant number of jobs in the national economy that White could
perform given his RFC, age, education, and past work experience. A.R. at 20 (ALJ Decision at 7).
Because the vocational expert testified that there were 23,500 jobs in the region for someone of this
RFC and other vocational factors, the ALJ concluded that there were a significant number of other
jobs available to White, and that he was therefore not disabled. White timely filed an appeal to the
Social Security Administration Appeals Council, but the Appeals Council denied White’s request
for review.
7 D. District Court Proceedings
On November 6, 2006, White filed a civil action for judicial review of the Commissioner’s
decision, and the magistrate judge issued a report and recommendation on January 17, 2008. The
magistrate judge concluded that the ALJ’s decision, specifically the determination of White’s RFC,
was not supported by substantial evidence. First, the magistrate judge concluded that, while it was
appropriate for the ALJ to discount Dr. Basch’s opinion that White was disabled, the ALJ should not
have ignored Dr. Basch’s medical conclusion that White’s impairment is exacerbated by sitting,
squatting, and twisting, because that conclusion was not contradicted by any evidence in the record.
Next, the magistrate judge concluded that the ALJ should have taken into consideration White’s
testimony that his medications adversely affected his ability to perform work. The magistrate judge
further concluded that, because White’s testimony regarding his limitations was consistent with
objective medical evidence and because White’s credibility was bolstered by his extensive work
history, the ALJ’s decision was not supported by substantial evidence to the extent White “testified
that he was impaired to an extent beyond that recognized by the ALJ.” Report & Recommendation
at 10-11. For these reasons, “the hypothetical questions, the response to which the ALJ relied upon
to support his decision, [were] based upon an improper RFC determination.” Id. at 11.
Although the magistrate judge concluded that the ALJ’s determination “that there exists a
significant number of jobs which Plaintiff can perform despite his limitations, is supported by less
than substantial evidence,” id. at 11, the magistrate judge did not find that there existed compelling
evidence that White is disabled such that the court could award benefits. The magistrate judge
therefore recommended that the Commissioner’s decision be reversed and the case be remanded for
further factual findings. Id at 12.
8 The Commissioner filed objections to the Report and Recommendation, to which White
responded. On February 29, 2008, the district court entered a judgment granting the Commissioner’s
objections, rejecting the Report and Recommendation, and affirming the decision of the Social
Security Administration. The district court concluded that the ALJ’s decision was supported by
substantial evidence because (1) Dr. Basch’s opinion that White’s impairment was exacerbated by
certain activities was contradicted by Dr. Basch’s own findings that White’s pain was controlled by
nerve block injections and by the state agency physician’s findings and (2) substantial evidence
“supports the ALJ’s discounting of Plaintiff’s self-diagnoses since Plaintiff drives a vehicle, goes
shopping, walks frequently, handles the family finances, and carries out other daily activities.” Dist.
Ct. J. at 3. Ultimately, the district court concluded that “although it may disagree with the ALJ’s
determination, the ALJ has acted within his ‘zone of choice.’” Id.
II. ANALYSIS
A. Standard of Review
“This court’s review of the Commissioner’s decision is limited to determining whether it is
supported by substantial evidence and was made pursuant to proper legal standards.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). “Substantial evidence is ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 237-38 (6th Cir. 2002) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
A social security disability determination is made in accordance with the five-step sequential
analysis set forth in 20 C.F.R. § 404.1520:
9 First, [White] must demonstrate that [he] is not currently engaged in substantial gainful employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, [White] must show that [he] suffers from a severe impairment. 20 C.F.R. § 404.1520(c). Third, if [White] is not engaged in substantial gainful employment and has a severe impairment which is expected to last for at least twelve months, which meets or equals a listed impairment, [he] will be considered disabled without regard to age, education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the Commissioner cannot make a determination of disability based on medical evaluations and current work activity and [White] has a severe impairment, the Commissioner will then review [White’s] residual functional capacity (RFC) and relevant past work to determine if [he] can do past work; if so, [he] is not disabled. 20 C.F.R. § 404.1520(e).
Howard, 276 F.3d at 238. In White’s case,
The ALJ determined that the first four parts did not entitle [White] to disability benefits, so this case turns on the fifth: if [White’s] impairment prevents [him] from doing past work, the Commissioner will consider [his] RFC, age, education and past work experience to determine if [he] can perform other work. If [he] cannot perform other work, the Commissioner will find [him] disabled. 20 C.F.R. § 404.1520(f). The Commissioner has the burden of proof only on “the fifth step, proving that there is work available in the economy that the claimant can perform.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
To meet the burden of showing that [White] could perform work that is available in the national economy, the Commissioner must make a finding “supported by substantial evidence that [White] has the vocational qualifications to perform specific jobs.” Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). This kind of “[s]ubstantial evidence may be produced through reliance on the testimony of a vocational expert (VE) in response to a ‘hypothetical’ question, but only ‘if the question accurately portrays [White’s] individual physical and mental impairments.’” Id. (citations omitted).
Id. After considering White’s age, education, past relevant work experience, and RFC, along with
the testimony of the vocational expert, the ALJ determined that White was able to perform other
work and was not disabled. White argues that this determination is not supported by substantial
evidence.
10 B. Whether the ALJ’s Decision Is Supported by Substantial Evidence
White argues that the ALJ’s decision was not supported by substantial evidence for three
reasons. First, White argues that the ALJ did not properly consider the opinions of White’s treating
physicians, Dr. Basch and Dr. Smith. Second, White argues that the ALJ erred by not finding that
White had a significant mental impairment. Finally, White argues that substantial evidence does not
support the finding that White could have performed a limited range of light work and that the ALJ
failed to follow the vocational expert’s responses to the hypothetical questions that accurately
portrayed White’s physical and mental state. We first discuss whether the ALJ’s RFC determination
that White could perform a limited range of light work was supported by substantial evidence and
then discuss whether the vocational expert’s testimony in response to the ALJ’s hypothetical
question provides substantial evidence to support the ALJ’s finding that White could perform other
work. We conclude that both the ALJ’s RFC determination and the ALJ’s finding of other work
were not supported by substantial evidence.
1. RFC Determination
A claimant’s “RFC is an assessment of an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis,” which is defined
as “8 hours a day, for 5 days a week, or an equivalent work schedule.” Soc. Sec. Rul. 96-8p, 1996
WL 374184, at *1 (July 2, 1996) (Policy Interpretation Ruling Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims). The ALJ found that White “retains the following residual
functional capacity: light work with a sit/stand option; occasional pushing and pulling with [right
lower extremity]; and occasional bending, kneeling, squatting, crouching, and crawling.” A.R. at
19 (ALJ Decision at 6). White argues that the ALJ erred in making this finding by not properly
11 considering the opinions of White’s treating physicians, by not considering White’s significant
mental impairment, and by not crediting White’s testimony, particularly on the effects of his pain
and his pain medication.
a. Treating Physicians’ Opinions
Under the “treating source” rule, the ALJ must “‘give good reasons’ for not giving weight
to a treating physician in the context of a disability determination.” Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)). Pursuant to this rule, “if
the opinion of the treating physician as to the nature and severity of a claimant’s conditions is
‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record,’ then it will be accorded controlling
weight.” Rogers, 486 F.3d at 242 (quoting Wilson, 378 F.3d at 544). “When the treating physician’s
opinion is not controlling, the ALJ, in determining how much weight is appropriate, must consider
a host of factors, including the length, frequency, nature, and extent of the treatment relationship;
the supportability and consistency of the physician’s conclusions; the specialization of the physician;
and any other relevant factors.” Id. “However, in all cases there remains a presumption, albeit a
rebuttable one, that the opinion of a treating physician is entitled to great deference, its
non-controlling status notwithstanding.” Id. “It is true, however, that the ultimate decision of
disability rests with the administrative law judge.” Walker v. Sec’y of Health & Human Servs., 980
F.2d 1066, 1070 (6th Cir. 1992). White argues that, because his treating physicians, Dr. Basch and
Dr. Smith, advised him not to return to work, the ALJ erred by discounting their opinions regarding
White’s disability when there was nothing in the record, except the state agency physician’s report,
that supported a conclusion that White could perform limited light work. The Commissioner argues
12 that a treating physician’s opinion that a claimant cannot return to work is not conclusive on the
ultimate issue of disability and that the ALJ gave the requisite “good reasons” for discounting the
opinions of the treating physicians.
We conclude that the ALJ did not give sufficient reasons for discounting the opinion of Dr.
Basch as to White’s limitations. Although the ALJ was correct that the opinions of Dr. Basch and
Dr. Smith were not conclusive on disability, particularly because they referred to White’s ability to
perform his current job rather than other jobs, the ALJ does not give good reasons for entirely
discounting the remainder of Dr. Basch’s opinions. The ALJ stated that he did not give Dr. Basch’s
opinion great weight “because his opinion is inconsistent with his own office notes that indicate the
claimant receives good pain relief for four to seven weeks from nerve block injections.” A.R. at 18
(ALJ Decision at 5). However, although Dr. Basch did find that White obtained temporary relief
from the nerve blocks, the key is that this relief was temporary, lasting for only three to seven weeks.
Dr. Basch’s notes repeatedly state that, aside from the temporary relief from the injections, no viable
treatments are working and there is nothing more that can be done to relieve White’s pain. This is
in no way inconsistent with the conclusion that White’s pain would prevent him from consistently
holding a job and therefore is not a good reason for entirely discounting Dr. Basch’s opinion as
internally inconsistent. As we have previously stated, a doctor’s report is not inconsistent with a
finding of disability merely because it states that the claimant’s physical impairment has improved.
Walker, 980 F.2d at 1071.
As the magistrate judge noted, Dr. Basch found that White could not perform work involving
sitting, squatting, or twisting, because it places too much pressure on his nerve. This is inconsistent
with the RFC, which allows for occasional pushing and pulling with the right leg and occasional
13 bending, kneeling, squatting, crouching, and crawling. Although, as the district court noted, Dr.
Basch found that White should walk more, he also found that when White did walk more as
instructed, the pain became unbearable. The ALJ stated that Dr. Basch’s recent office notes reported
that White was becoming more active, but the ALJ failed to note that in that same sentence Dr.
Basch reported that the increased activity was increasing White’s pain. As we have noted, “the fact
that a patient is encouraged to remain active does not reflect the manner in which such activities may
aggravate the patient’s symptoms.” Rogers, 486 F.3d at 249.
b. Significant Mental Impairment
White also argues that the ALJ erred by failing to find that White had a significant mental
impairment even though Dr. McDowell diagnosed White with adjustment disorder and depression,
giving him a GAF of score of 55, indicating moderate symptoms. In discussing White’s mental
impairment, the ALJ found that it was not severe because, although he was diagnosed with
“adjustment disorder” and was prescribed an anti-depressant medication, the anti-depressant was
“more for pain relief and sleep than for depressive symptoms,” and White “does not participate in
mental health counseling on a consistent basis and has only mild to no limitations in his activities
. . . due to a mental health impairment.” A.R. at 18 (ALJ Decision at 5).
Although the ALJ did not err in finding that White’s mental impairment was not severe, the
ALJ gave no explanation for totally discounting the objective evidence of White’s mental
impairment in determining White’s RFC. Once one severe impairment is found, the combined effect
of all impairments must be considered, even if other impairments would not be severe. See 20
C.F.R. §§ 404.1523, 404.1545(a)(2). The Commissioner correctly states that Dr. McDowell did not
note any limitations caused by White’s mental impairment and that the ALJ was therefore not
14 required to include the GAF finding in the RFC. Howard, 276 F.3d at 241. The ALJ’s total
discounting of White’s mental impairments, however, is not supported by substantial evidence,
because the ALJ mischaracterizes the evidence and misstates Dr. Basch’s reasons for prescribing
anti-depressants. When first prescribing them, Dr. Basch stated “[White] is becoming depressed and
discouraged. His wife concurs. . . . The chronic pain plus what appears to be an impending disability
is weighing heavily upon him.” A.R. at 229 (Basch Office Notes 9/15/2003). At a later visit, Dr.
Basch increased the dosage because White “feels overwhelmingly depressed because of the
combination of the chronic pain and inability to sleep because of pain.” A.R. at 252 (Basch Office
Notes 1/21/2005). Contrary to the ALJ’s statement, the anti-depressants were not prescribed for
“pain relief and sleep,” A.R. at 18 (ALJ Decision at 5), but because the pain and lack of sleep were
causing depression. Because the ALJ does not accurately state the evidence used to support his
finding, his total discounting of the mental impairment is not supported by substantial evidence.
c. White’s Credibility
White argues that substantial evidence does not support the ALJ’s discounting of White’s
testimony about his impairments. We recently discussed the two-part analysis “used in evaluating
complaints of disabling pain”:
First, the ALJ will ask whether the there is an underlying medically determinable physical impairment that could reasonably be expected to produce the claimant’s symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds that such an impairment exists, then he must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual’s ability to do basic work activities. Id. Relevant factors for the ALJ to consider in his evaluation of symptoms include the claimant’s daily activities; the location, duration, frequency, and intensity of symptoms; factors that precipitate and aggravate symptoms; the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; other treatment undertaken to relieve symptoms; other measures taken to relieve
15 symptoms, such as lying on one’s back; and any other factors bearing on the limitations of the claimant to perform basic functions. Id.
Rogers, 486 F.3d at 247; see also 20 C.F.R. § 404.1529(a). Although it is “for the ALJ, and not the
reviewing court, to evaluate the credibility of witnesses, including that of the claimant,” “the ALJ
is not free to make credibility determinations based solely upon an ‘intangible or intuitive notion
about an individual’s credibility.’” Rogers, 486 F.3d at 247 (quoting Soc. Sec. Rul. 96-7p, 1996 WL
374186, at *4 (July 2, 1996) (Policy Interpretation Ruling Titles II and XVI: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements)). In
Rogers, the claimant asserted disability based on pain caused by fibromyalgia, and we reversed and
remanded the ALJ’s decision, in part because the ALJ failed to evaluate properly the claimant’s
credibility by over-emphasizing objective findings, mischaracterizing the scope of the claimant’s
daily activities, and placing unwarranted significance on a physician’s testimony that the best
treatment was regular exercise. Id. at 248-49.
Here, the ALJ found that White’s “description of his limitations exceeds medical
substantiation, is not consistent with other evidence and is not credible.” A.R. at 19 (ALJ Decision
at 6). The ALJ stated that he “considered all symptoms, including pain, and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence based on the requirements of 20 CFR § 404.1529, and Social Security Ruling 96-7p”
and relevant medical opinions, id., but he did not explain how the objective evidence was
inconsistent with White’s testimony. He seems to have based this finding on the fact that White
testified that “[h]e is able to drive, handle the family finances, help care for six children, and use a
computer” and that he “was teaching his son how to do yard work.” Id. But this “mischaracterizes
16 [White’s] testimony regarding the scope of [his] daily activities [and] fails to examine the physical
effects coextensive with their performance.” Rogers, 486 F.3d at 248-49. White testified, for
example, that he drove very little because of pain and his medications, that he was supervising his
sons in doing yard work because he could no longer do it himself, and that he could no longer help
his children get ready in the morning or help with their homework. White’s subjective complaints
are consistent with this testimony and with the activities questionnaires he completed as part of his
application. Further, White’s extensive work history and attempts to continue working despite his
disability support his credibility, a factor not even considered by the ALJ. See Schaal v. Apfel, 134
F.3d 496, 502 (2d Cir. 1998) (“[A] good work history may be deemed probative of credibility . . . .”);
Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *5.
Much of White’s testimony would affect his RFC determination. For example, White
testified that he experienced fatigue and forgetfulness with his medication. The ALJ also found no
evidence that White had trouble walking because he had not been prescribed a cane, but White
testified that he already had obtained one without a prescription. As in Rogers, we conclude that the
ALJ’s decision “fails to ‘contain specific reasons for the finding on credibility, supported by the
evidence in the case record’” and is not “‘sufficiently specific to make clear to the individual and to
any subsequent reviewers the weight the adjudicator gave to [White’s] statements and the reasons
for that weight.’” Rogers, 486 F.3d at 248-49 (quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, at
*4).
17 2. Vocational Expert Testimony
White argues that, because the ALJ did not have substantial evidence to support the finding
that White could perform limited light work, the hypothetical question posed to the vocational expert
was inaccurate, and the ALJ should not have relied on the answer in finding that there were other
jobs that White could perform. White argues that later hypothetical questions asked of the
vocational expert by White’s attorney accurately portrayed White’s limitations. The ALJ posed three
hypothetical questions to the vocational expert and relied on the answer to the third question in
determining that White could perform other work. That question asked the vocational expert
to assume an individual the same age as the claimant, same educational background and with the journeyman’s card and same past work you described. This person is limited to doing light exertional work with occasional postural movement, and occasional pushing and pulling with the right lower extremity and also needing to alternate sitting and standing at will, so I’ll call that a sit/stand at will option.
A.R. at 315-16 (Hr’g Tr. at 46-47). Because the hypothetical question simply restates the RFC, and
because, as discussed above, the RFC does not accurately portray White’s limitations, the
hypothetical question suffers from the same problems as the RFC, and thus the ALJ erred in relying
on the answer to this question.
Moreover, we have explained that the purpose of a hypothetical question is different than that
of an RFC: “while the RFC should focus on [White’s] abilities or, in other words, what [White] can
and cannot do, the hypothetical question should focus on [White’s] overall state including [White’s]
mental and physical maladies.” Howard, 276 F.3d at 239. The “RFC is to be an ‘assessment of
[White’s] remaining capacity for work’ once [his] limitations have been taken into account.’” Id.
(quoting 20 C.F.R. § 416.945). In other words, the RFC “is an assessment of what [White] can and
cannot do, not what [he] does and does not suffer from.” Id. “The hypothetical question posed to
18 a [vocational expert] for purposes of determining whether [White] can perform other work, on the
other hand, should be a more complete assessment of [his] physical and mental state and should
include an ‘accurate[ ] portray[al] [of his] individual physical and mental impairment[s].’” Id.
(quoting Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987); Myers v.
Weinberger, 514 F.2d 293, 294 (6th Cir. 1975)). In Howard, we found that the vocational expert’s
testimony was not sufficient evidence to support the ALJ’s finding that the claimant could perform
“other work,” because the question did not include the ALJ’s findings on the claimant’s physical
ailments and diagnoses and because the question did not accurately portray the claimant’s mental
state. 276 F.3d at 241.
Here, the ALJ’s reliance on the answer to the hypothetical question is further flawed to the
extent that it did not accurately portray White’s physical and mental impairments. Specifically, the
question made no mention of White’s mental state. Dr. McDowell, White’s treating psychologist,
diagnosed him with adjustment disorder and depression and gave him a GAF score of 55, which
indicates moderate symptoms or moderate difficulties in social, occupational, or school functioning.
As discussed above, the ALJ did not have to include this finding in the RFC. Howard, 276 F.3d at
241. However, Howard does direct the ALJ to include the diagnosis of mental impairment in the
hypothetical question.
Further, the question did not account for the side effects of the pain medication. When
questioned by White’s attorney, the vocational expert admitted that the listed jobs would be
eliminated if the person dozes off during the day or has mental confusion and forgetfulness. The
Commissioner argues that these symptoms correctly were not included in the question because the
ALJ found that White’s testimony was not credible. As discussed above, there was not substantial
19 evidence to discount White’s testimony that the pain medication left him drowsy and fatigued.
White has been on several potent pain medications, including Valium, Vicodin, and a Duragesic
patch, which are known to have powerful side effects such as drowsiness, fatigue, light-headedness,
and weakness. Further, Dr. Basch’s office notes indicate that, far from abusing these medications,
White was concerned about the side effects and at times asked to have his dosage decreased. The
ALJ’s determination is thus not entitled to substantial weight to the extent that it discounted the side
effects of White’s medications.
C. Award of Benefits
“If a court determines that substantial evidence does not support the [Commissioner’s]
decision, the court can reverse the decision and immediately award benefits only if all essential
factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to
benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
Otherwise, the court should remand to the Commissioner for further consideration. Although the
ALJ did not provide substantial evidence to support his conclusions, we cannot say that there is
compelling evidence that White is entitled to benefits. We therefore must remand for further
consideration.
III. CONCLUSION
Because we conclude that the ALJ’s determination that White is able to perform a substantial
number of other jobs was not supported by substantial evidence and did not conform to the proper
legal standards, we REVERSE the judgment of the district court upholding the Commissioner’s
decision and REMAND with instructions to return the claim to the Commissioner for further