Woodward v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/18/2012. (JLC)

FILED
2012 Jul-18 AM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELIZABETH B. WOODWARD,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 2:11-CV-02859-VEH
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MEMORANDUM OPINION
Plaintiff Elizabeth B. Woodward (hereinafter “Ms. Woodward”) brings this
action pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act. She seeks
review of a final adverse decision of the Commissioner of the Social Security
Administration (hereinafter “Commissioner” or “Secretary”), who denied her
application for Supplemental Security Income (“SSI”).1 Ms. Woodward timely
pursued and exhausted her administrative remedies available before the

1

In general, the legal standards applied are the same regardless of whether a claimant seeks
SSI or Disability Insurance Benefits (“DIB”). However, separate, parallel statutes and regulations
exist for SSI and DIB claims. Therefore, citations in this opinion should be considered to refer to
the appropriate parallel provision as context dictates. The same applies to citations of statutes or
regulations found in quoted court decisions.

Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g),2 § 205(g)
of the Social Security Act.
FACTUAL AND PROCEDURAL HISTORY
Ms. Woodward was a 45 year old female at the time of her hearing before the
administrative law judge (hereinafter “ALJ”). (Tr. 34). She has a twelfth grade
education. (Tr. 34, 185). Her past vocational experience includes work as a cashier.
(Tr. 31, 58, 181). Ms. Woodward claims she became disabled on August 14, 1965.
(Tr. 13, 187). She complains of lupus, high blood pressure, asthma, anemia,
depression, poor vision, and general pain and fatigue as a result of her lupus. (Tr. 31,
32, 180, 195, 197, 199, 202, 241). The ALJ found that Ms. Woodward has only
worked for brief periods of time since her eighteenth birthday. (Tr. 15).
Ms. Woodward protectively filed a Title XVI application for SSI on September
1, 2009. (Tr. 13, 65). The claim was denied by the Commissioner on January 4,
2010. (Tr. 13, 66). Ms. Woodward filed a timely written request for a hearing on
January 21, 2010. (Tr. 13). A video hearing was held on February 22, 2011, with
Ms. Woodward appearing in Birmingham and the ALJ presiding from St. Louis,
Missouri. (Tr. 13, 27). The ALJ concluded that Ms. Woodward was not disabled and

2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

denied her application for SSI on March 10, 2011. (Tr. 13-21).
Ms. Woodward submitted a timely request for review of the ALJ’s decision to
the Appeals Council on March 23, 2011. (Tr. 8). The review was denied by the
Appeals Council on June 16, 2011, and thus, the ALJ’s decision became the
Commissioner’s final decision on that date. (Tr. 1).
On August 15, 2011, Ms. Woodward initiated her federal lawsuit asking this
court to review the ALJ’s decision. (Doc. 1). On January 5, 2012, Ms. Woodward
filed a brief (Doc. 10) in support of her appeal, and on February 26, 2012, the
Commissioner answered with his responsive brief. Ms. Woodward elected not to file
a reply brief. This court has carefully considered the record and for the reasons stated
below, reverses the Commissioner’s denial of benefits and remands the case for
further development and consideration.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
3

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.3 The Regulations define “disabled” as the

3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499, as current through July 5, 2012.
4

“inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
5

she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At the hearing, the ALJ found that Ms. Woodward had not engaged in any
substantial gainful activity since September 1, 2009. (Tr. 15). Thus, Ms. Woodward
satisfied step one of the five step test. 20 C.F.R. § 404.1520(b).
Under step two, the ALJ concluded that Ms. Woodward’s discoid lupus4 was
considered “severe” based on the requirements set forth in Regulations 20 C.F.R. §

4

The online Merriam-Webster Medical Dictionary explains the term “lupus erythematosus”

as:
Either of two inflammatory autoimmune diseases, both more common in women. In
the discoid type, a skin disease, red patches with grayish brown scales appear on the
upper cheeks and nose (often in a butterfly pattern), scalp, lips, and/or inner cheeks.
Sunlight worsens it. Antimalarial drugs may help. The second type, systemic
(disseminated) lupus erythematosus (SLE), may affect any organ or structure,
especially the skin (with marks like those of the discoid type), kidneys, heart, nervous
system, serous (moisture-forming) membranes (e.g., in synovial joints or lining the
abdomen), and lymph nodes, with acute episodes and remissions. Symptoms vary
widely. Kidney and central-nervous-system involvement can be life-threatening.
Treatment includes pain relief, control of inflammation, and trying to limit damage
to vital organs.
http://www.merriam-webster.com/concise/lupus%20erythematosus (accessed on July 10, 2012)
(emphasis added).
6

404.1520(c) and § 416.920(c). Id. The ALJ found several other conditions claimed
by Ms. Woodward as non-severe, including hypertension, asthma, and depression.
(Tr. 15-16).5 Nevertheless, because of her severe lupus, the ALJ concluded that Ms.
Woodward satisfied the second step of the sequential disability evaluative process.
§ 404.1520 (c).
At step three, the ALJ determined that Ms. Woodward’s medically
determinable impairments, in combination, do not meet or medically equal a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security
Regulations. (Tr. 16). Ms. Woodward does not contest this determination on appeal.
The ALJ evaluated Ms. Woodward’s residual functional capacity (“RFC”) at
step four. (Tr. 17). The ALJ found Ms. Woodward had the RFC to “perform a range
of light work as defined in 20 CFR 416.967 (b).” Id. More specifically, he
formulated Ms. Woodward’s RFC as:
Specifically, she is able to lift/carry/push/pull 20 pounds occasionally
and 10 pounds frequently. She is able to stand/walk for about a total of
six hours per day and able to sit for about a total of six hours. She is able
to engage in occasional stooping, kneeling, crouching, and crawling.
She is able to engage in no more than occasional climbing of
ramps/stairs and balancing. She is unable to climb
ladders/ropes/scaffolds. She must avoid concentrated exposure to
temperature extremes and pulmonary irritants. The claimant must avoid

5

Ms. Woodward specifically challenges the ALJ’s severity findings regarding her
impairments of depression and asthma. (Doc. 9 at 7-9).
7

all exposure to hazards, such as moving machinery and unprotected
heights. Due to sunlight sensitivity, the claimant is able to perform
indoor jobs only.
(Tr. 17).
The vocational expert (hereinafter “VE”) testified that Ms. Woodward had
typically performed her past cashier work as semi-skilled and at the medium level, but
that the position is actually “classified as light exertion work.” (Tr. 19, 58). The
ALJ determined that Ms. Woodward could perform her specific past relevant job as
a cashier,“as the work is generally performed.” (Tr. 19).
The ALJ then alternatively proceeded to the fifth step of the sequential
evaluation process in which he posed three separate hypothetical questions to the VE.
In reliance upon Ms. Woodward’s testimony, her medical records, and the testimony
of the VE, the ALJ found that Ms. Woodward was not disabled through the date of
his decision. (Tr. 18-21). Further, the ALJ found that Ms. Woodward was not
eligible for SSI payments under § 1614(a)(3)(A) of the Social Security Act. (Tr. 21).
ANALYSIS
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
8

F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).6
In this appeal, Ms. Woodward generally challenges whether substantial
evidence supports the Commissioner’s denial of her SSI application. The court has
carefully reviewed the record and finds that this case should be remanded for further
development as it pertains to the ALJ’s RFC formulation for Ms. Woodward.7 The
court also finds that the ALJ committed reversible error in his alternative ruling with
respect to his reliance upon certain non-comprehensive hypothetical questions that
he posed to the VE.8 The court addresses each one of these areas more fully below.
I.

THE ALJ’S DISABILITY DETERMINATION IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE.
While Ms. Woodward has the burden of proving her disability, the ALJ has a

basic obligation to develop a full and fair record. See Cowart v. Schweiker, 662 F.2d
731, 732 (11th Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir.
6

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
7

The undersigned has rendered several other comparable decisions which have reversed the
Commissioner due to an underdeveloped record and/or an inadequately supported residual functional
capacity (“RFC”) determination from which the framework, analysis, and disposition of this case
persuasively flow. See, e.g., Stewart v. Astrue, No. 5:11-CV-2103-VEH, (Docs. 10, 11) (N.D. Ala.
May 14, 2011); Rose v. Astrue, No. 1:11-CV-01186-VEH (Docs. 10, 11) (N.D. Ala. Nov. 1, 2011);
Meherg v. Astrue, No. 6:11-CV-01387-VEH (Docs. 11, 12) (N.D. Ala. Feb. 23, 2012).
8

As a result, the court does not reach the merits of the other issues presented on appeal.
9

1979)). When the ALJ has neglected to develop a full and fair record, the court “has
required the Secretary to reopen the case ‘until the evidence is sufficiently clear to
make a fair determination as to whether the claimant is disabled or not.’” Thorne,
607 F.2d at 220 (quoting Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir.
1974)).
In support of his RFC finding for Ms. Woodward, the ALJ did not identify a
medical source opinion9 or a physical capacities evaluation conducted by a physician
that substantiates Ms. Woodward’s ability to perform a reduced range of light work
given her severe impairment of discoid lupus and her non-severe conditions of
asthma, depression, and hypertension.10
Such an omission from the record is significant to the substantial evidence

9

Medical source statements are “medical opinions submitted by acceptable medical sources,
including treating sources and consultative examiners, about what an individual can still do despite
a severe impairment(s), in particular about an individual’s physical and mental abilities to perform
work-related activities on a sustained basis. Medical source statements are to be based on the
medical sources' records and examination of the individual; i.e., their personal knowledge of the
individual. Therefore, because there will frequently be medical and other evidence in the case record
that will not be known to a particular medical source, a medical source statement may provide an
incomplete picture of the individual's abilities.” SSR 96-5p.
10

See Jamison v. Bowen, 14 F.2d 585, 588 (11th Cir. 1987) (“At step three the ALJ must
determine if the applicant has a severe impairment or a combination of impairments, whether severe
or not, that qualify as a disability.”) (emphasis added); id. (“ The ALJ must consider the applicant’s
medical condition taken as a whole.”); see also 20 C.F.R. § 404.1545(a)(2) (“We will consider all
of your medically determinable impairments of which we are aware, including your medically
determinable impairments that are not ‘severe,’ as explained in §§ 404.1520(c), 404.1521, and
404.1523, when we assess your residual functional capacity.”).
10

inquiry pertaining to the ALJ’s RFC determination. See, e.g., Rohrberg v. Apfel, 26
F. Supp. 2d 303, 311 (D. Mass. 1998) (“The ALJ failed to refer to-and this Court has
not found-a proper, medically determined RFC in the record.”).
This court has recognized the Eleventh Circuit’s view that “the absence of a
physician’s opinion regarding a plaintiff’s functional limitations does not morph into
an opinion that the plaintiff can work.” Clemmons v. Astrue, No. 3:06-CV-1058VEH, (Doc. 22 at 11) (N.D. Ala. Jun. 11, 2007) (discussing Lamb v. Bowen, 847 F.2d
698, 703 (11th Cir. 1988)). “Such silence is equally susceptible to either inference,
therefore, no inference should be taken.” Id. This court has similarly noted, “where
the treating physician has not discharged the patient from treatment and the physician
has not made, and was not asked to make, a determination regarding plaintiff’s
functional capabilities, there is no substantial evidence to support an ALJ’s functional
capacity finding.” Clemmons, (Doc. 22 at 11) (citing Lauer v. Apfel, 245 F.3d 700,
705 (8th Cir. 2001)).
The court acknowledges that the ALJ did refer in his opinion to a host of
medical records pertaining to Ms. Woodward. (See, e.g., Tr. 18 (citing to Exhibits 1F,
4F, 6F, and 9F)). However, these referenced documents merely report raw clinical
findings related to Ms. Woodward’s individual conditions. (See, e.g., Tr.195-289
(medical records from Sulaf J. Mansur, M.D. and M. Huynh M.D.); Tr. 231-35
11

(consultative examination report from David Brower, M.D.); Tr. 245-252 (additional
medical records from Sulaf J. Mansur, M.D. and M. Huynh M.D.); Tr. 263-273
(medical records from Cooper Green Mercy Hospital)).11
For example the consultative physician, Dr. Brower, simply examined Ms.
Woodward, reported a host of physical findings (Tr. 232-34), and confirmed her
diagnosis of discoid lupus. (Tr. 234). Moreover, none of the doctors provided any
assessment of Ms. Woodward’s discoid lupus and her non-severe hypertension,
depression, and asthma in vocational terms. See, e.g., Rohrberg, 26 F. Supp. 2d at
311 (“Where the ‘medical findings in the record merely diagnose [the] claimant’s
exertional impairments and do not relate these diagnoses to specific residual
functional capabilities such as those set out in 20 C.F.R. § 404.1567(a) . . . [the
Commissioner may not] make that connection himself.’”) (citation omitted).
As another district judge of this court aptly explained the RFC issue in the
context of an ALJ who comparably determined, without the benefit of a physical
capacities evaluation conducted by a physician, that the claimant was not disabled:
While the Record contains Ms. Rogers’[s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
11

The ALJ also relied upon the “Psychiatric Review Technique” (Tr. 217-230) (Exhibit 3F)
generated by Robert Estock, M.D., on January 4, 2010, to support his decision. (Tr. 19). However,
that opinion is limited to characterizing Ms. Woodward’s affective disorder as non-severe and has
nothing to do with the vocational limitations caused by her severe discoid lupus or its functionallyrelated impact when combined with her diagnoses of minimal depression, hypertension, and asthma.
12

ALJ made his residual functional capacity evaluation without the benefit
of such evaluation. An ALJ is allowed to make some judgments as to
residual physical functional capacity where so little physical impairment
is involved that the effect would be apparent to a lay person.
Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15
(1st Cir. 1996). In most cases, including the case at bar, the alleged
physical impairments are so broad, complex, and/or ongoing that a
physician’s evaluation is required. Id. In order to have developed a full,
fair record as required under the law, the ALJ should have re-contacted
Ms. Roger’s [sic] physicians for physical capacities evaluations and/or
sent her to physicians for examinations and physical capacities
evaluations. Further, Ms. Rogers’ [s] ability to lift and to manipulate
objects must be thoroughly evaluated by at least one physician. These
evaluations shall be obtained upon remand. Ms. Rogers’[s] residual
functional capacity was not properly determined nor supported by
substantial evidence in this case.
Rogers v. Barnhart, No. 3:06-CV-0153-JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16, 2006)
(emphasis added); see also Manso-Pizarro, 76 F.3d at 17 (“With a few exceptions
(not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in
a medical record.” (emphasis added) (citing Perez v. Sec’y of Health & Human
Servs.,958 F.2d 445, 446 (1st Cir.1991))); Rohrberg, 26 F. Supp. 2d at 311 (“An ALJ
is not qualified to assess a claimant’s RFC on the basis of bare medical findings, and
as a result an ALJ’s determination of RFC without a medical advisor’s assessment is
not supported by substantial evidence.” (emphasis added) (citing Rodriguez v. Sec’y
of Health & Human Servs., 893 F.2d 401, 403 (1st Cir.1989))); cf. Giddings v.
Richardson, 480 F.2d 652, 656 (6th Cir. 1973) (“To meet such a prima facie case it

13

is not sufficient for the government to rely upon inconclusive medical discussion of
a claimant’s problems without relating them to the claimant’s residual capacities in
the field of employment.”) (emphasis added).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Ms. Woodward’s work-related exertional
abilities and appropriate non-exertional restrictions based upon the unfiltered
information contained in her medical records. Therefore, in the absence of a medical
source statement and/or any physical capacities evaluation conducted on Ms.
Woodward by a physician that corroborates the ALJ’s determination that she is
capable of performing a reduced range of light work despite her severe impairment
of discoid lupus and her non-severe depression, hypertension, and asthma, the record
has not been adequately developed. See, e.g., Cowart, 662 F.2d at 732 (citing
Thorne, 607 F.2d at 219); see also Sobolewski v. Apfel, 985 F. Supp. 300, 314
(E.D.N.Y. 1997) (“The record’s virtual absence of medical evidence pertinent to the
issue of plaintiff’s RFC reflects the Commissioner’s failure to develop the record,
despite his obligation to develop a complete medical history.”). Similarly, in light of
the foregoing analysis, the ALJ’s disability decision is not supported by substantial
evidence, and remand is appropriate.

14

II.

THE ALJ POSED SEVERAL INCOMPLETE HYPOTHETICAL
QUESTIONS TO THE VE AND ERRONEOUSLY RELIED UPON
ONLY THOSE ANSWERS TO SUPPORT HIS DISABILITY
DETERMINATION.
Alternatively, the ALJ’s disability determination is flawed in his reliance upon

expert testimony because of the incomplete questions that he presented to the VE.
The ALJ posed three separate hypothetical questions to the VE.

The first

hypothetical question was:
[L]et’s assume we have a hypothetical person who’s able to lift,
carry, push, pull up to 20 pounds occasionally and 10 pounds frequently;
she’s able to stand and walk for about a total of six hours per day and sit
for about a total of six hours; she is able to engage in occasional
stooping, kneeling, crouching, and crawling; she is able to occasionally
climb stairs and ramps. She is able to balance no more than
occasionally. She is unable to climb ladders, ropes, or scaffolds. This
hypothetical person must avoid concentrated exposure to temperature
extremes and pulmonary irritants. She must avoid all exposure to
workplace hazards such as dangerous moving machinery and
unprotected heights. She should avoid or seriously limit sun exposure;
therefore, should best work in indoor environments that do not subject
her to a lot of direct sunlight.
(Tr. 58-59).
In response to the first question, the VE testified that the hypothetical person
would be able to perform Ms. Woodward’s past work as a cashier as it is generally
described “in the DOT.”12 (Tr. 59). The VE further indicated that within the State

12

The Dictionary of Occupational Titles provides different examples of work activities that
fall within the residual functioning capacity for medium work. (Washington, D.C.: U.S. Dept. of
15

of Alabama there were 17,000 light, unskilled cashier positions as well as 1,700 ticket
seller slots and 2,000 product assembly and machine feeder jobs, which this
hypothetical worker could perform. Id.
The ALJ did not list any of Ms. Woodward’s impairments when asking this
question. Even assuming that Ms. Woodward’s asthma was indirectly included based
on the ALJ’s indication that the hypothetical person should stay away from
pulmonary irritants, as well as her lupus, in that the hypothetical person should limit
sun exposure, the ALJ still did not reference, either directly or indirectly, her
depression or any pain.
The second hypothetical was, “[A]ll the limitations apply except this time the
person can do no more than sedentary work, meaning they can lift up to 10 pounds
on occasion, they can stand and walk for up to a total of two hours, and they can sit
for at least six hours in a workday.” (Tr. 59). In response to the second question, the
VE provided examples of jobs this person could do, such as assembly line work,
certain cashier positions, and machine feeder and offbearer vocations. (Tr. 60).
Again, the ALJ did not reference Ms. Woodward’s impairment of non-severe
depression or her subjective pain.

Labor, Employment and Training Administration: U.S. G.P.O., 1993). Available online at:
http://www.occupationalinfo.org.
16

The third and final hypothetical question proposed by the ALJ was, “[D]ue to
chronic pain and other symptoms, this hypothetical person would be expected to miss
work at least twice a month.” (Tr. 61). This time, the ALJ included Ms. Woodward’s
depression and chronic pain, which she testified was normally “like a 7 and an 8.”
(Tr. 43). In response to this hypothetical, the VE testified that this person “would
likely be terminated. That is running into excessive absenteeism.” (Tr. 61).
In order for the vocational expert testimony to constitute substantial evidence,
the ALJ must pose a hypothetical question which contains all of the claimant’s
impairments. Cf. Vega v. Comm. of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir. 1996)
(“Upon remand, the ALJ should pose a more thorough hypothetical question,
including Vega’s subjective complaints and her symptoms of CFS.”). In finding that
Ms. Woodward was not disabled, the ALJ necessarily relied on the VE’s answers to
the first and second hypothetical situations. However, neither one of these questions
factored in Ms. Woodward’s impairment of depression or any level of pain. Instead,
the only hypothetical that even mentioned these conditions was the final one, which
the ALJ clearly disregarded.
As the pre-Bonner Fifth Circuit has explained:
There followed three similar hypothetical questions, assuming other
physical limitations on the part of the claimant. But none of these
interrogatories ever required the vocational expert to assume the
17

claimant had any psychological impairments.
The conclusion of the Magistrate on this issue, which was
accepted by the District Court, was that
the medical records submitted to the vocational expert
make ample reference to the psychological aspects of
Plaintiff's physical impairment. Under such circumstances
the Secretary has discharged his burden of demonstrating
that the Plaintiff was capable of engaging in substantial
gainful activity.
We do not think it is proper to assume that because the vocational expert
was aware of Brenem’s psychological problems, that he took them into
consideration in answering hypothetical questions which referred only
to physical impairments. Or at least we have no basis for assuming that
had these factors been included in the hypothetical questions his answer
would have been the same.
The same issue was recently addressed by this Court in Johnson,
supra. There we considered an hypothetical question posed to a
vocational expert who was instructed to “disregard” completely any
mental or physical impairment which the claimant may have or be found
to have. Id. at 998. We held that unless there was vocational expert
testimony concerning the availability of jobs for a person with the
claimant’s educational level, work skills and experience and physical
limitations, the decision of the ALJ, based significantly on the expert
testimony, would be unsupported by substantial evidence.
The same rule applies here with respect to Brenem’s
psychological impairments. The ALJ found that they did exist, and it is
certain that mental and psychological defects can combine with physical
impairments to create total disability to perform gainful employment.
See, e.g., Broussard v. Gardner, 382 F.2d 278 (5th Cir. 1967);
Dodsworth v. Celebrezze, 349 F.2d 312 (5th Cir. 1965). It cannot be
said that the ALJ fully considered all aspects of Brenem's disability
when there is no evidence in the record as to the type of work available
18

to a person with “a spondylolysis of the lumbosacral spine and either a
mild hysterical conversion neurosis or a mild compensation neurosis
with some mild anxiety and depression.”
Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (emphasis added). Ultimately,
the Eleventh Circuit remanded the Brenem case for further development “relating to
availability of employment for Brenem, assuming the physical and psychological
limitations which he has been found to have.” Id. (emphasis added).
In the instant case, the ALJ found that Ms. Woodward’s depression was “nonsevere.” (Tr. 15). In the areas of activities of daily living, social functioning, and
concentration, persistence, and pace, the ALJ found that she had “no more than ‘mild’
limitation.” (Tr. 16). However, consistent with Brenen, it is still critical for the ALJ
to include Ms. Woodward’s depression in his hypothetical question to the VE, even
if it is “mild,” in order for the ALJ’s reliance upon the expert testimony to be
appropriate.
Similarly, the answers provided by the VE that the ALJ used to support his
disability determination did not incorporate any amount of Ms. Woodward’s
subjective pain. Regarding her pain, although the ALJ did discount the level of
severity she claimed; however, at the same time, he acknowledged that Ms.
Woodward “has genuine symptoms.” (Tr. 19). Under such circumstances, to
constitute substantial evidence the hypothetical questions upon which the ALJ relied
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to support his disability determination should have factored in some degree of pain.
Therefore, in accord with the above analysis, the ALJ did not pose a comprehensive
hypothetical question to the VE, and remand is appropriate for this separate reason.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
not supported by substantial evidence.

Accordingly, the decision of the

Commissioner will be remanded by separate order.
DONE and ORDERED this the 18th day of July, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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