PUBLISH
UNITED STATES COURT OF APPEALS Filed 8/7/96 TENTH CIRCUIT
WILLIAM T. WINFREY,
Plaintiff-Appellant,
v. No. 95-7139
SHIRLEY S. CHATER, Commissioner of Social Security, *
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. CV-94-582)
Submitted on the briefs:
Davis Duty, Fort Smith, Arkansas, for Plaintiff-Appellant.
John W. Raley, Jr., United States Attorney, Joseph B. Liken, Acting Chief Counsel, Tina M. Waddell, Acting Deputy Chief Counsel, Anthony D. Randall,
* Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary because she was the appropriate party at the time of the underlying decision. Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, Dallas, Texas, for Defendant-Appellee.
Before EBEL, BARRETT, and HENRY, Circuit Judges.
BARRETT, Senior Circuit Judge.
Plaintiff appeals the district court’s affirmance of the Secretary’s decision
denying him disability insurance benefits. 1 Plaintiff claims to have been disabled
since April 1991 as a result of pain in his neck, shoulder, upper and lower back,
and right leg, headaches, a catch in the middle finger of his left hand, tingling in
his right hand, asthma, liver problems, hypoglycemia, hiatal hernia, depression,
general anxiety disorder, and somatoform disorder. After conducting two
hearings and a de novo review of the record, the administrative law judge (ALJ)
determined that plaintiff could return to his past relevant work as a truck driver,
as that work is generally performed in the national economy. When the Appeals
Council denied review, the ALJ’s decision became the final decision of the
Secretary.
1 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) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
-2- “We review the Secretary’s decision to determine whether it is supported by
substantial evidence and whether the Secretary applied the correct legal
standards.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). We
must examine the record closely to determine whether substantial evidence
supports the Secretary’s determination. Id. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quotation omitted). In addition
to a lack of substantial evidence, the Secretary’s failure to apply the correct legal
standards, or to show us that she has done so, are also grounds for reversal.
Washington, 37 F.3d at 1439.
I. Background
Plaintiff, who was sixty years old at the time the ALJ issued the present
decision, worked as a truck driver for Roadway Express for twenty-one years.
Plaintiff’s job required him not only to drive a truck, but to load and unload
cargo. His testimony reflected that he performed the job at an exertional level
between medium and heavy. In 1988, plaintiff suffered a work-related injury to
his neck and shoulder, for which he received worker’s compensation. As a result
of alleged increasing difficulty in performing his job, plaintiff quit in April 1991.
In a decision issued August 1992, the ALJ determined that plaintiff could perform
a full range of medium work, but that, in light of his treating physician’s opinion
-3- that “the claimant’s loading of trucks and pulling down and latching doors may
represent a difficulty for the claimant given his limitations,” Tr. at 241, plaintiff
could not perform his past relevant work. The ALJ, therefore, proceeded to step
five of the sequential analysis, see 20 C.F.R. § 404.1520 (setting forth the five
steps), where he concluded that plaintiff was not disabled based on the grids.
The Appeals Council reversed the ALJ’s decision and remanded the action
to obtain further evidence concerning plaintiff’s physical and mental limitations
and to reevaluate the evidence under proper legal principles. On remand, the ALJ
found that plaintiff had the physical ability to perform a full range of medium
work, but that he had nonexertional limitations resulting from his mental
impairments. The ALJ concluded that, despite these limitations, plaintiff could
return to his past work as a truck driver--as distinguished from his past work as a
loader and unloader--as that work is generally performed in the national economy.
See Social Security Ruling (SSR) 82-61, Soc. Sec. Rep. Serv., Rulings 1975-
1982, 836, 838 (West 1983); Andrade v. Secretary of Health & Human Servs.,
985 F.2d 1045, 1050-51 (10th Cir. 1993)(holding that “past relevant work”
includes not only claimant’s particular former job, but also claimant’s former
occupation as it is generally performed in the national economy).
Plaintiff alleges five categories of error in the Secretary’s decision:
improper evaluation of plaintiff’s subjective complaints; improper evaluation of
-4- plaintiff’s mental impairments; improper evaluation of plaintiff’s residual
functional capacity; improper evaluation of plaintiff’s ability to return to his past
relevant work; and improper application of the vocational expert’s testimony. We
will address each in turn.
II. Evaluation of Subjective Complaints
“A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective evidence
of pain, the claimant must first prove by objective medical evidence the existence
of a pain-producing impairment that could reasonably be expected to produce the
alleged disabling pain.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.
1993)(citations omitted). Plaintiff met this initial burden here. X-rays of
plaintiff’s cervical spine taken in 1991 showed marked degenerative changes, and
x-rays of his left shoulder showed degenerative changes and a narrowing of the
AC joint. A CAT scan of plaintiff’s cervical spine in the fall of 1991 revealed
“extensive osteoarthritis changes of the facet joints without evidence of [a]
ruptured disk,” Tr. at 206, and x-rays of plaintiff’s lumbosacral spine showed
“moderate lipping of osteoarthritis,” but “no degenerative changes,” id. at 213.
The ALJ was then required to consider all the relevant objective and subjective
evidence and “decide whether he believe[d] the claimant’s assertions of severe
pain,” Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987). The ALJ found that
-5- plaintiff’s subjective complaints of pain were not credible to the extent they
suggested he could not perform a full range of medium work.
“Findings as to credibility should be closely and affirmatively linked to
substantial evidence . . . .” Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.
1988). “Credibility determinations are peculiarly the province of the finder of
fact, [however,] and we will not upset such determinations when supported by
substantial evidence.” Diaz v. Secretary of Health & Human Servs., 898 F.2d
774, 777 (10th Cir. 1990).
Here, some of the reasons advanced by the ALJ for finding plaintiff’s
subjective complaints of pain incredible were not supported by substantial
evidence. The most notable of these was the ALJ’s determination that plaintiff
had an incentive not to work. This finding was based entirely on the ALJ’s
speculation that the terms of plaintiff’s pension might prohibit plaintiff from
working. Conversely, the ALJ also failed to consider relevant factors that were
supported by the record. The most notable of these was “the possibility that
psychological disorders combine with physical problems,” Luna, 834 F.2d at 166.
Dr. Spray, a clinical psychologist, diagnosed plaintiff with somatoform disorder,
not otherwise specified. He found that plaintiff manifested an “[u]nrealistic
interpretation of physical signs or sensations associated with the preoccupation or
belief that one has a serious disease or injury.” Tr. at 266. Dr. Spray also noted
-6- that plaintiff was “extremely somatically preoccupied,” id. at 308, and that, even
if plaintiff were given only simple job instructions, he would be “likely to
complain about somatic concerns,” id. at 310. The ALJ, however, did not treat
plaintiff’s somatic preoccupation as a manifestation of his mental impairment or
consider how that impairment, along with plaintiff’s depression and anxiety
disorder, affected his perception of pain. Instead, the ALJ discounted plaintiff’s
credibility based on his determination that “claimant is bored and whiny and has
[an] incentive not to work and to complain about problems.” Id. at 37. Thus, the
ALJ’s evaluation of plaintiff’s subjective complaints was flawed by his reliance
on factors that were not supported by the record and by his failure to consider
other factors that were supported by the record.
III. Evaluation of Mental Impairments
Dr. Spray first examined plaintiff in October 1992, at which time he
performed a mental status exam and administered several tests, including the
Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Dr. Spray detailed his
findings in a report and completed a Psychiatric Review Technique (PRT) form.
Dr. Spray diagnosed plaintiff with the following conditions: (1) somatoform
disorder, not otherwise specified, (2) dysthymia, (3) history of alcohol abuse, and
(4) personality disorder, not otherwise specified, with dependent and antisocial
features.
-7- In May 1993, plaintiff was examined by Dr. Dean, a psychiatrist, at the
Secretary’s request. Dr. Dean concluded that plaintiff suffered from a generalized
anxiety disorder and major depression. In response to an inquiry from plaintiff’s
attorney as to the presence of a somatoform disorder, Dr. Dean wrote that he “was
unable to adequately assess the presence or absence of objective findings which
would either corroborate or eliminate the presence of a somatoform disorder,”
because he was not given complete data on plaintiff’s medical care and he neither
obtained a complete medical history from plaintiff nor conducted his own
physical examination of plaintiff. Tr. at 314.
In connection with his examination of plaintiff, Dr. Dean completed a
Medical Assessment of Ability to Do Work-Related Activities form, on which he
indicated that plaintiff’s abilities in seven areas were only “fair” 2 and his abilities
in eight areas were“good”. 3 Dr. Dean noted that “chronic anxiety and depression
limits patient to more solitary vocations and limits his ability to relate to other
people.” Id. at 283.
Dr. Spray examined plaintiff again in September 1993. He found plaintiff
“extremely somatically preoccupied,” with “occult ideas about not only the causes
2 “Fair” is defined on the form as “[a]bility to function in this area is seriously limited, but not precluded.” Tr. at 283. 3 “Good” is defined on the form as “[a]bility to function in this area is limited, but satisfactory.” Tr. at 283.
-8- of his perceived pain, but also treatment.” Id. at 308. He also noted that plaintiff
“easily got off on somatic tangents that were not related to the question asked of
him,” id. at 309, and found that plaintiff “has difficulty concentrating due to his
somatic preoccupation,” id. at 310. With one exception, Dr. Spray’s diagnoses in
1993 were the same as those he made in 1992. The only change concerned
plaintiff’s alcohol abuse. In the 1992 report, Dr. Spray noted that plaintiff’s
statements about his alcohol use were inconsistent and, therefore, he was unclear
when plaintiff had stopped using alcohol or if plaintiff had stopped completely.
At the time of the exam in 1993, however, plaintiff “admit[ted] to continued use
of alcoholic beverages, the last time approximately two days ago when he drank
eight to ten beers,” id. at 309. Therefore, Dr. Spray changed his diagnosis from a
“history of alcohol abuse” to “alcohol abuse.” In connection with his examination
in 1993, Dr. Spray also completed a Medical Assessment of Ability to Do Work-
Related Activities form, on which he concluded that plaintiff’s abilities were
“poor or none” in eight areas, “fair” in six areas, and “good” in only one area:
maintaining personal appearance.
Dr. Goodman, a psychiatrist, acted as a medical adviser at the supplemental
hearing. Because he had not examined plaintiff, his comments were based solely
on his review of the record and plaintiff’s testimony at the supplemental hearing.
Dr. Goodman questioned Dr. Spray’s diagnosis of somatoform disorder, because
-9- he thought there appeared to be physical reasons for plaintiff’s somatic
complaints. Otherwise, Dr. Goodman testified that the evidence revealed an
individual who abuses alcohol and has somatic complaints, as well as dysthymia,
a generalized anxiety disorder, and personality disorders that may meet the A
criteria under the listings, see 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.08. Dr.
Goodman noted that plaintiff had not been treated for his dysthymia, which he
described as mild chronic depression, but that the condition is “very treatable with
medication,” id. at 128. Dr. Goodman did not say, however, whether treatment
could be expected to eliminate all effects of the condition on plaintiff’s ability to
do work-related activities.
Despite Dr. Spray’s diagnosis, the ALJ found that plaintiff did not have a
somatoform disorder. The ALJ gave three reasons for this finding: (1) Dr.
Goodman’s opinion that there were physical reasons for plaintiff’s somatic
complaints; (2) his own interpretation of “Dr. Dean’s initial failure to consider
this diagnosis [as] a reflection of his belief at the time that such diagnosis was not
warranted,” id. at 28; and (3) his own opinion that Dr. Spray improperly used the
MMPI-2 as a basis for the diagnosis. None of these grounds justifies rejecting
Dr. Spray’s diagnosis.
First, because Dr. Goodman did not examine plaintiff, his opinion was not
entitled to as much weight as that of Dr. Spray. 20 C.F.R. § 404.1527(d)(1);
-10- Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987). Dr. Spray’s diagnosis
was not inconsistent with the opinion of Dr. Dean, the only other mental health
professional who examined plaintiff. Second, the ALJ’s attempt to infer from Dr.
Dean’s failure to diagnose a somatoform disorder a determination by Dr. Dean
that the diagnosis was not warranted is belied by Dr. Dean’s own explanation for
the absence of a diagnosis. Finally, the ALJ clearly overstepped his bounds when
he substituted his medical judgment for that of Dr. Spray, by determining that the
results of the MMPI-2 test were not an adequate basis on which to make a
diagnosis. See Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987)(holding
that an ALJ “can not interpose his own ‘medical expertise’ over that of a
physician”). We note that Dr. Goodman never suggested that Dr. Spray’s reliance
on the results of the MMPI-2 test as a diagnostic tool was improper.
The ALJ rejected not only Dr. Spray’s diagnosis of a somatoform disorder,
but also Dr. Spray’s conclusions about the effect of plaintiff’s various mental
impairments on his ability to work. Other than those discussed above, the only
additional reason the ALJ advanced for rejecting Dr. Spray’s opinion was that he
did not think the evidence supported Dr. Spray’s change of diagnosis from a
history of alcohol abuse to alcohol abuse. The ALJ found that “Dr. Spray’s knee-
jerk diagnosis of alcohol abuse based on [plaintiff’s report of having drunk eight
to ten beers two days before the exam] appears to be somewhat flimsy in light of
-11- the remainder of the record.” Tr. at 31. The ALJ found that the rate of
consumption to which plaintiff testified at the hearing (“a few beers a week or
two prior to the supplemental hearing”) was not “excessive or abusive.” Id.
Once again, the ALJ appears to have second-guessed a medical expert’s
judgment, by determining what rate of alcohol consumption should be considered
excessive or abusive for plaintiff. Further, although plaintiff testified at the
supplemental hearing that he had quit drinking four years ago and had drunk only
a few beers in recent weeks, he had previously told Dr. Spray otherwise. In
making his diagnosis, Dr. Spray was entitled to rely on the information plaintiff
provided him, including that plaintiff continued to drink and had recently drunk
as many as ten beers in one day. Moreover, rejecting Dr. Spray’s diagnosis of
current alcohol abuse would not justify rejecting the remainder of his opinion.
Not only did Dr. Dean and Dr. Goodman corroborate other diagnoses by Dr.
Spray, but all the explanations Dr. Spray provided for his answers on the Medical
Assessment of Ability to Do Work-Related Activities form were based on
plaintiff’s other mental impairments, not his alcohol abuse.
In sum, the ALJ erred in rejecting Dr. Spray’s opinions without adequate
justification and in substituting his own medical judgment for that of mental
health professionals. This, in turn, led the ALJ to make conclusions about the
effects of plaintiff’s mental impairments on his ability to work that did not fairly
-12- take into account all the evidence. If, on remand, the ALJ determines that the
evidence about plaintiff’s mental impairments is not sufficient to support a
decision on plaintiff’s claim, the ALJ can order another consultative exam, see 20
C.F.R. § 404.1519a(b), and, this time, provide the examining physician with all
the medical records necessary to make an informed diagnosis.
IV. The Three Phases of Step Four
Step four of the sequential analysis, at which the ALJ found plaintiff not
disabled, is comprised of three phases. In the first phase, the ALJ must evaluate a
claimant’s physical and mental residual functional capacity (RFC), see SSR 86-8,
Soc. Sec. Rep. Serv., Rulings 1983-1991, 423, 427 (West 1992), and in the second
phase, he must determine the physical and mental demands of the claimant’s past
relevant work. 20 C.F.R. § 404.1520(e). In the final phase, the ALJ determines
whether the claimant has the ability to meet the job demands found in phase two
despite the mental and/or physical limitations found in phase one. See SSR 82-
62, Soc. Sec. Rep. Serv., Rulings 1975-1982, 809; Henrie v. United States Dep’t
of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993). At each of these
phases, the ALJ must make specific findings. See Henrie, 13 F.3d at 361.
A. Phase One: Plaintiff’s Residual Functional Capacity
-13- In determining a claimant’s physical abilities, the ALJ should “first assess
the nature and extent of [the claimant’s] physical limitations and then determine
[the claimant’s] residual functional capacity for work activity on a regular and
continuing basis.” 20 C.F.R. § 404.1545(b). Here, the ALJ concluded that
plaintiff had the physical ability to do a full range of medium work. SSR 83-10
defines “full range of work” as “[a]ll or substantially all occupations existing at
an exertional level,” and provides that “[t]he considerable lifting required for the
full range of medium work usually requires frequent bending-stooping . . .
[f]lexibility of the knees as well as the torso is important for this activity.” Soc.
Sec. Rep. Serv., Rulings 1983-1991, at 30. 4 Dr. Dandridge, an orthopedic
surgeon who examined plaintiff in 1993 at the request of the Secretary, concluded
that plaintiff could climb, stoop, kneel, balance, crouch, and crawl only
occasionally, commenting that, “[a]t this patient’s age, flexibility and elasticity of
tissues prevent frequency of activities.” Tr. at 294. The ALJ credited Dr.
Dandridge’s opinion, but determined that it did not conflict with a determination
that plaintiff could do a full range of medium work. The ALJ reasoned that,
because kneeling and crouching are forms of bending, plaintiff’s ability to stoop,
4 Although SSR 83-10 specifically relates to step five of the sequential analysis, because a claimant’s RFC is relevant at both steps four and five, we may be guided at step four by the ruling’s definitions of terms that are integral to the RFC determination.
-14- kneel, and crawl occasionally meant that he could frequently bend-stoop. In her
brief on appeal, the Secretary does not even attempt to justify this fallacious
reasoning.
The ALJ’s RFC determination also failed to take into account the physical
limitations found by Dr. Combs, plaintiff’s treating physician. Although the ALJ
stated that he found entirely credible Dr. Combs’ opinion that plaintiff would
have difficulty loading cargo, pulling down doors and latching them, the ALJ did
not include any of these limitations in his determination of plaintiff’s RFC. Thus,
the RFC finding the ALJ made at the first phase of the step four analysis did not
accurately reflect plaintiff’s exertional limitations. 5
The ALJ also erred in evaluating plaintiff’s mental RFC. “When there is
evidence of a mental impairment that allegedly prevents a claimant from working,
the Secretary must follow the procedure for evaluating mental impairments set
forth in 20 C.F.R. § 404.1520a and the Listing of Impairments and document the
5 Although the ALJ partially rectified his error by considering the limitations identified by Dr. Combs at the final phase of the step four analysis, this case illustrates one of the hazards associated with an incomplete RFC assessment: the established limitations that are omitted from the RFC determination itself, may also be omitted from the hypothetical questions the ALJ propounds to a vocational expert at a later stage of the disability analysis. “[T]estimony elicited by hypothetical questions that do not relate with precision all of a claimant’s impairments cannot constitute substantial evidence to support the Secretary’s decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)(quotation omitted).
-15- procedure accordingly.” Cruse v. United States Dep’t of Health & Human Servs.,
49 F.3d 614, 617 (10th Cir. 1995). Documentation is made by completing a PRT
form, which the ALJ must attach to his written decision. “[T]he record must
contain substantial competent evidence to support the conclusions reached on the
PRT form[, and] if the ALJ prepares the form himself, he must ‘discuss in his
opinion the evidence he considered in reaching the conclusions expressed on the
form.’” Id. at 617-18 (quoting Washington, 37 F.3d at 1442). Here, the ALJ
repeated in the body of his written opinion the conclusions he reached on the
PRT, but he did not relate these conclusions to the evidence. The ALJ also
recited his conclusions as to those abilities that are the subject of the Medical
Assessment of Ability to Perform Work-Related Activities (Mental) form. Again,
however, the ALJ did not relate his conclusions to the evidence, other than to
state that they were based on “a reasonable understanding of the medical records,”
Tr. at 31. We note that the ALJ’s conclusions as to plaintiff’s abilities differed
dramatically from Dr. Spray’s conclusions; a difference which the ALJ did not
explain.
B. Phase Two: Demands of Plaintiff’s Past Relevant Work
At the second phase of the step four analysis, the ALJ must make findings
regarding the physical and mental demands of the claimant’s past relevant work.
See Henrie, 13 F.3d at 361. To make the necessary findings, the ALJ must obtain
-16- adequate “factual information about those work demands which have a bearing on
the medically established limitations.” SSR 82-62, Soc. Sec. Rep. Serv., Rulings
1975-1982, at 812. When the claimant has a mental impairment,
care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety, e.g., speed, precision, complexity of tasks, independent judgments, working with other people, etc., in order to determine if the claimant’s mental impairment is compatible with the performance of such work.
Id. Here, the ALJ made no inquiry into, or any findings specifying, the mental
demands of plaintiff’s past relevant work, either as plaintiff actually performed
the work or as it is customarily performed in the national economy.
On appeal, the Secretary argues, relying on cases from outside this circuit,
that plaintiff bore the responsibility for developing the record as to the demands
of his past relevant work. Tenth Circuit law concerning the ALJ’s duty of inquiry
and factual development is, however, to the contrary. See, e.g., Washington, 37
F.3d at 1442; Henrie, 13 F.3d at 361. Further, the Secretary’s own rule dictates
that the ALJ make the necessary findings at phases two and three of the step four
inquiry. See SSR 82-62, Soc. Sec. Rep. Serv., Rulings 1975-1982, at 813.
C. Phase Three: Plaintiff’s Ability to Perform His Past Relevant Work
Having failed to complete phase two appropriately, the ALJ was unable to
make the necessary findings at phase three about plaintiff’s ability to meet the
-17- mental demands of his past relevant work despite his mental impairments. The
Secretary glosses over the absence of the required ALJ findings, by relying on the
testimony of the VE that plaintiff could meet the mental demands of his past
relevant work, given the mental limitations found by the ALJ. This practice of
delegating to a VE many of the ALJ’s fact finding responsibilities at step four
appears to be of increasing prevalence and is to be discouraged.
At step five of the sequential analysis, an ALJ may relate the claimant’s
impairments to a VE and then ask the VE whether, in his opinion, there are any
jobs in the national economy that the claimant can perform. This approach, which
requires the VE to make his own evaluation of the mental and physical demands
of various jobs and of the claimant’s ability to meet those demands despite the
enumerated limitations, is acceptable at step five because the scope of potential
jobs is so broad.
At step four, however, the scope of jobs is limited to those that qualify as
the claimant’s past relevant work. Therefore, it is feasible at this step for the ALJ
to make specific findings about the mental and physical demands of the jobs at
issue and to evaluate the claimant’s ability to meet those demands. Requiring the
ALJ to make specific findings on the record at each phase of the step four
analysis provides for meaningful judicial review. When, as here, the ALJ makes
-18- findings only about the claimant’s limitations, and the remainder of the step four
assessment takes place in the VE’s head, we are left with nothing to review.
We are not suggesting, as has the Fourth Circuit, see Smith v. Bowen, 837
F.2d 635, 637 (4th Cir. 1987), that the ALJ may not rely on VE testimony in
making the necessary findings at step four. As SSR 82-62, and SSR 82-61, Soc.
Sec. Rep. Serv., Rulings 1975-1982, 836, indicate, a VE may supply information
to the ALJ at step four about the demands of the claimant’s past relevant work.
Id. at 811-12, 838. For example, if the ALJ determines that the claimant’s mental
impairment affects his ability to concentrate, the ALJ may ask the VE for
information about the level of concentration necessary to perform the claimant’s
past relevant work. The VE’s role in supplying vocational information at step
four is much more limited than his role at step five, where he is called upon to
give his expert opinion about the claimant’s ability to perform work in the
national economy. Therefore, while the ALJ may rely on information supplied by
the VE at step four, the ALJ himself must make the required findings on the
record, including his own evaluation of the claimant’s ability to perform his past
relevant work.
Here, the ALJ’s error in relying on the VE to give an opinion about
plaintiff’s ability to do his past relevant work was compounded by the fact that
the VE’s testimony did not establish that plaintiff could perform his past relevant
-19- work as it is generally performed in the national economy. Although the VE
initially testified that plaintiff could do his past relevant work, even given the
mental limitations found by the ALJ, he later qualified this opinion when
questioned by plaintiff’s counsel.
Specifically, the VE concluded that, in light of plaintiff’s successful
employment with Roadway Express for twenty-one years, plaintiff’s mental
impairments would not negatively affect his ability to return to work at Roadway
Express, because he would be “working with people that he’s used to being with
as well as supervisors, co-workers, and things like this, [and] it would not be like
he’s going into a new situation to where he would have new work adjustments to
make.” Id. at 135. If, however, plaintiff had to change work locations, the VE
was of the opinion that his mental impairments would have a negative effect, such
that plaintiff “would probably be discharged from the job if he could not maintain
a certain production level. . . . It wouldn’t mean he couldn’t work, it would mean
-- [h]e wouldn’t be able to keep the job.” Id. at 137.
“‘A finding that a claimant is able to engage in substantial gainful activity
requires more than a simple determination that the claimant can find employment
and that he can physically perform certain jobs; it also requires a determination
that the claimant can hold whatever job he finds for a significant period of time.’”
Washington, 37 F.3d at 1442 (quoting Singletary v. Bowen, 798 F.2d 818, 822
-20- (5th Cir. 1986)). Thus, the VE’s opinion that plaintiff’s mental impairments
would negatively impact his ability to hold a job somewhere other than at
Roadway Express is significant, because the ALJ specifically found that plaintiff
could return to his past relevant work only as it is generally performed in the
national economy, not as plaintiff performed it at Roadway Express. The ALJ,
however, did not ask the VE whether the customary demands of the occupation of
truck driver include meeting a production level. In the absence of evidence that
truck drivers are not customarily expected to meet a production level, the VE’s
testimony cannot constitute substantial evidence supporting the ALJ’s conclusion
that plaintiff can return to his past relevant work as it is generally performed in
the national economy.
In sum, the ALJ’s analysis at step four was flawed in several respects. In
the first phase of the analysis, the ALJ failed to include all plaintiff’s exertional
limitations in his RFC finding and failed to relate the conclusions he recorded on
the PRT about plaintiff’s mental RFC to the evidence. In the second phase, the
ALJ failed to develop the record on, and to make the required findings about, the
mental demands of plaintiff’s past relevant work. This failure infected the third
phase, where the ALJ abdicated his fact finding and evaluation responsibilities to
the VE. This error, in turn, was compounded by the ALJ’s failure to elicit
sufficient information from the VE to support the ALJ’s ultimate conclusion that
-21- plaintiff could return to his past relevant work as it is generally performed in the
national economy.
V. Conclusion
Because the ALJ committed numerous legal errors and his ultimate
conclusion was not supported by substantial evidence, we must reverse the
decision and remand for further proceedings. Both the tone of the ALJ’s opinion
and the manner in which the ALJ evaluated the evidence, including substituting
his medical judgment for that of experts, suggest that the ALJ may not be able to
provide plaintiff with a fair hearing on remand. Therefore, we recommend that
the Secretary assign this case to a different ALJ for all further proceedings.
The judgment of the United States District Court for the Eastern District of
Oklahoma is REVERSED, and the case is REMANDED with directions to remand
the action to the Secretary for further proceedings consistent with this opinion.
-22-