Webb v. Comm Social Security

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Webb v. Comm’r of Social Security No. 03-5158 ELECTRONIC CITATION: 2004 FED App. 0144P (6th Cir.) File Name: 04a0144p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Susan K. Houser, UNITED STATES FOR THE SIXTH CIRCUIT DEPARTMENT OF JUSTICE, Washington, D.C., for _________________ Appellant. Kelly L. Ward, Stanville, Kentucky, for Appellee. ON BRIEF: Susan K. Houser, Thomas M. Bondy, UNITED DEBBIE WEBB , X STATES DEPARTMENT OF JUSTICE, Washington, D.C., Plaintiff-Appellee, - for Appellant. Eric C. Conn, David L. Williams, Stanville, - Kentucky, for Appellee. - No. 03-5158 v. - _________________ > , OPINION COMMISSIONER OF SOCIAL - _________________ SECURITY, - Defendant-Appellant. - ALAN E. NORRIS, Circuit Judge. The Commissioner - appeals from the district court’s partial grant of summary N judgment in favor of plaintiff Debbie Webb and from its Appeal from the United States District Court reversal of the Commissioner’s denial of supplemental for the Eastern District of Kentucky at Pikeville. security income benefits to plaintiff. The district court No. 01-00021—Jennifer B. Coffman, District Judge. premised its decision upon the opinion of this court in Howard v. Comm’r of Social Security, 276 F.3d 235 (6th Cir. Argued: March 16, 2004 2002), which it interpreted as mandating reversal. Because we are unable to agree with the district court’s interpretation Decided and Filed: May 19, 2004 of Howard, we reverse its judgment.

Before: NORRIS and COLE, Circuit Judges; I. ECONOMUS, District Judge.* Debbie Webb filed a claim for supplemental security income with the Social Security Administration on July 21, 1997. Her claim was denied initially and upon reconsideration. Webb then moved for a hearing on her claim before an Administrative Law Judge (“ALJ”). ALJ William H. Gitlow denied the claim in a decision dated November 27, 1998. After determining that Webb could not perform the work that she had done in the past, the ALJ concluded that the * The H onorable Peter C . Econo mus, United States District Judge for Commissioner had met her burden of demonstrating that a the Northern District of Ohio, sitting by designation.

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significant number of jobs existed in the regional and national forth by my prior hypothetical. Assume this individual economies for Webb to perform, thus preventing her from also has nonexertional impairments. This individual may being eligible for supplemental security income benefits. only occasionally climb or balance and is not to stoop, crouch, kneel, or crawl. This individual is limited to In denying Webb’s claim, the ALJ relied upon the simple to moderately complex tasks in a low stress, task- testimony of a vocational expert, Donald Joe Woolwine. oriented worksetting. This individual is moderately Woolwine testified that jobs existed for Webb in the regional limited in ability to maintain concentration and attention and national economies given her age, education, past work for extended periods. First of all, on these assumptions, experience and residual functional capacity. In eliciting in your opinion are there light and sedentary unskilled testimony from Woolwine, the ALJ asked the following job categories recognized by the Secretary that such an hypothetical questions and received the following answers: individual could be expected to be able to perform? Q. I’d like you to assume an individual exertionally A. Yes. limited to lifting and/or carrying a maximum of 20 pounds occasionally, ten pounds frequently with no ... prolonged sitting or standing and no overhead reaching with the right arm. On such exertional limitations alone, Q. If I were to ask you to further assume that this could such an individual perform any of the claimant’s individual has need to avoid an environment of excessive past work? dust, fumes, gases, or chemicals, how, if at all, would that impact upon your previous answers? A. No. A. None. Q. Could such an individual perform heavy or medium work? Webb appealed the ALJ’s denial of her claim to the Appeals Council, which affirmed the ALJ’s decision on April 20, A. No. 2000, making the ALJ’s decision the Commissioner’s final determination of the claim. Q. Could such an individual perform light work? On January 16, 2001, Webb filed a complaint against the A. Limited. Commissioner in federal district court. The case was referred to a magistrate judge who issued a report and Q. Sedentary work? recommendation concluding that the ALJ had erred in relying upon Woolwine’s testimony because it had been elicited A. Limited. using incomplete hypothetical questions, citing to our opinion in Howard. The magistrate judge interpreted Howard as Q. I’d like you to assume an individual of claimant’s holding that ALJs were only permitted to rely upon age of 44 years, claimant’s eighth grade and GED vocational expert testimony regarding the availability of education and training, and work experience, and assume employment if the hypothetical questions eliciting that this individual has exertional impairments which limit testimony listed the claimant’s medical conditions. this individual to a limited range of light work as set No. 03-5158 Webb v. Comm’r of Social Security 5 6 Webb v. Comm’r of Social Security No. 03-5158

The district court adopted the report and recommendation. [T]he ALJ’s selective inclusion of only those portions of The court agreed that Howard requires hypothetical questions the [medical] report that cast Howard in a capable light to include lists of claimants’ medical conditions, although it suggests that he only considered part of the report in found that the reasoning of earlier cases that did not require formulating his conclusion that Howard “need[s] to such lists was “significantly more convincing.” The perform work of a simple and relatively nonstressful government filed a motion to alter or amend judgment under nature.” As a result, we conclude that the [residual Fed. R. Civ. P. 59(e). The district court denied that motion on functional capacity] does not accurately describe November 13, 2002. This appeal followed. Howard’s abilities and that the ALJ’s decision, which is based upon it, is not supported by substantial evidence. II. Howard, 276 F.3d at 240-41. That ruling was sufficient for Upon review of our decision in Howard and our prior case the Howard court to reverse the Commissioner’s denial of law, we are unable to agree with the district court’s reading benefits. By contrast, in the case at bar, Webb does not of Howard, and we conclude that its decision must be challenge ALJ Gitlow’s residual functional capacity reversed. The district court interpreted Howard to require calculation. Accordingly, Howard need not be read to apply “that the hypothetical should have expressly referenced the to Webb’s claim. plaintiff’s diagnosed arthritis.” We read Howard to hold only that a denial of benefits based upon an ALJ’s improper Webb argues that other language in the Howard opinion calculation of a claimant’s residual functional capacity, a requires that ALJs list claimants’ medical conditions in their description of what the claimant “can and cannot do,” must be hypothetical questions to vocational experts for those reversed. Howard, 276 F.3d at 239. Admittedly, there is questions to be considered complete. Webb is correct to some confusing language in Howard that could conceivably assert that such language exists in Howard. In discussing the be viewed as requiring that hypothetical questions include proper content of hypothetical questions, the Howard court lists of claimants’ medical conditions. However, we conclude provided the following explanation: that, given the facts present in Howard, that language is not part of its holding, nor can it be so construed if Howard is to Howard’s [residual functional capacity] is to be an be read to be consistent with the holdings of our prior “assessment of [her] remaining capacity for work” once decisions. her limitations have been taken into account. 20 C.F.R. § 416.945. It is an assessment of what Howard can and Under the social security laws, if a claimant concludes that cannot do, not what she does and does not suffer from. an ALJ erroneously calculated her residual functional The hypothetical question posed to a [vocational expert] capacity, she may bring an action against the Commissioner for purposes of determining whether Howard can in federal district court challenging the denial of her benefits. perform other work, on the other hand, should be a more 42 U.S.C. § 405(g). The claimant in Howard mounted complete assessment of her physical and mental state and precisely such a challenge, and this court decided that, should include an “accurate[] potray[al] [of her] because the ALJ had not considered the entirety of the individual physical and mental impairment[s].” Varley claimant’s medical record in calculating her residual [v. Sec’y of Health and Human Services], 820 F.2d functional capacity, the denial of benefits had to be reversed. [777,] 779 [(6th Cir. 1987)]; Myers v. Weinberger, 514 As explained in the Howard opinion: F.2d 293, 294 (6th Cir. 1975) (per curiam). Thus, while No. 03-5158 Webb v. Comm’r of Social Security 7 8 Webb v. Comm’r of Social Security No. 03-5158

the [residual functional capacity] should focus on holding, it would impermissibly conflict with our prior Howard’s abilities or, in other words, what Howard can decisions. and cannot do, the hypothetical question should focus on Howard’s overall state including Howard’s mental and A firmly established rule in this circuit prevents a panel of physical maladies. the court from issuing an opinion overruling a decision of another panel. Were Howard to be interpreted to require Id. at 239. The Howard court also concluded that, because hypothetical questions to vocational experts to include lists of the hypothetical questions in that case did not include a list of claimants’ medical conditions, it would contravene the Howard’s “maladies,” the vocational expert’s testimony was holdings of earlier cases of this circuit. In Foster v. Halter, unreliable, and the ALJ’s denial of benefits was erroneous: 279 F.3d 348 (6th Cir. 2001), we stated that a hypothetical question need only reference all of a claimant’s limitations, The hypothetical question also fails to describe without reference to the claimant’s medical conditions. accurately Howard’s physical and mental impairments, Foster, 279 F.3d at 356. In Varley v. Sec’y of Health and a defect which, as we have stated, is fatal to the Human Servs., 820 F.2d 777 (6th Cir. 1987), a case cited in [vocational expert’s] testimony and the ALJ’s reliance Howard, we likewise determined that a vocational expert upon it. need only “take[] into account plaintiff’s limitations.” Varley, 820 F.3d at 780. Except for Howard, Webb can cite no case Id. at 241. Finally, the Howard court stated that the ALJ requiring that a hypothetical question include a listing of should have included a listing of the claimant’s medical medical conditions. Consequently, because such an conditions in the hypothetical questions he posed to the interpretation would conflict with this circuit’s precedent, we vocational expert: cannot read Howard to create an entirely new requirement for hypothetical questions to vocational experts. That portion of the hypothetical question drawn from the medical report . . . is incomplete. It tells us what Howard Moreover, an interpretation of Howard that would require can do but tells us nothing about Howard’s ailments. vocational experts to evaluate the effect of medical conditions The ALJ should have included the diagnosis from that would be inconsistent with the purpose that vocational experts same report which states that Howard suffers from serve under social security regulations. Under those degenerative disc disease, iron deficiency anemia, regulations, the ALJ is charged with the responsibility of hypertension, and osteoarthritis. The ALJ did find that evaluating the medical evidence and the claimant’s testimony Howard suffered from degenerative disc disease and to form an “assessment of [her] residual functional capacity.” osteoarthritis. But this finding was not included in the 20 C.F.R. § 416.920(a)(4)(iv). The vocational expert testifies hypothetical question posed to the [vocational expert] as on the basis of a claimant’s “residual functional capacity and it should have been. . . . age, education, and work experience” and assesses whether the claimant “can make an adjustment to other Id. Webb’s argument that this language requires us to reverse work.” 20 C.F.R. § 416.920(a)(4)(v). The vocational the Commissioner’s decision denying her benefits fails. Not expert’s testimony is directed solely to whether, given a only is that language unnecessary to the outcome in Howard, claimant’s age, experience, and education, along with the but if that language were considered part of Howard’s ALJ’s assessment of what she “can and cannot do,” there exist a significant number of employment opportunities for No. 03-5158 Webb v. Comm’r of Social Security 9

her in the regional and national economies. The vocational expert is not expected to evaluate the claimant’s medical conditions in making this determination. Indeed, vocational experts are not required to have any medical training, so any evaluation of medical evidence they perform would be outside their area of expertise. Accordingly, in light of the facts present in Howard, this circuit’s prior case law, and the role of a vocational expert under the social security regulations, we do not read Howard to hold that hypothetical questions to vocational experts are required to include lists of claimants’ medical conditions. III. For the foregoing reasons, the judgment of the district court is reversed, and the Commissioner’s denial of benefits is affirmed.