Anderson v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 1/25/2016) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SUSAN LEIGH ANDERSON,

§
§
Plaintiff,
§
§
V.
§
§
CAROLYN W. COLVIN,
§
Acting Commissioner of Social Security, §
§
Defendant.
§

No. 3:15-cv-781-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Susan Leigh Anderson seeks judicial review of a final adverse decision
of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is reversed.
Background
Plaintiff alleges that she is disabled due to a variety of ailments, including
osteoarthritis, fibromyalgia, diabetes, atrial flutter, joint pain, hand pain, anxiety,
depression, bone spurs in her neck, and hypertension. See Administrative Record [Dkt.
Nos. 15 & 16 (“Tr.”)] at 186, 191, 192, 196, 276. After her applications for disability
insurance benefits was denied initially and on reconsideration, Plaintiff requested a
hearing before an administrative law judge (“ALJ”). That hearing was held on
December 9, 2013. See id. at 177-204. At the time of the hearing, Plaintiff was 53 years
old. See id. at 181. She is a high school graduate, has a cosmetology license, and has
past work experience as a bookkeeper and wire transfer clerk. See id. at 181-85, 200.

Plaintiff has not engaged in substantial gainful activity from May 1, 2011, the alleged
onset date, through December 31, 2013, the date last insured. See id. at 29.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability benefits. See id. at 37. Although the medical evidence established that
Plaintiff suffered from diabetes mellitus, hypertension, spondylosis, osteoarthritis, and
depression, the ALJ concluded that the severity of those impairments did not meet or
equal any impairment listed in the social security regulations. See id. at 29. The ALJ
further determined that Plaintiff had the residual functional capacity to perform the
full range of sedentary work and could perform her past relevant work as a bookkeeper
and wire transfer clerk. See id. at 34, 36.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff contends that the
hearing decision is not supported by substantial evidence and results from reversible
legal error. More particularly, Plaintiff argues that: (1) the ALJ relied on answers to
hypothetical questions that did not reasonably incorporate all of the limitations that
the ALJ recognized; (2) the ALJ’s determination that Plaintiff has the residual
functional capacity (“RFC”) to perform detailed work is contrary to Ripley v. Chater,
67 F.3d 552 (5th Cir. 1995), because no physician reported that Plaintiff was capable
of detailed work and it does not reflect the function-by-function analysis required by
SSR 96-8p; (3) the ALJ improperly rejected her treating physician’s opinions; and (4)
the ALJ failed to develop the record to obtain clarification from Plaintiff’s treating
physician.
2

The Court determines that the hearing decision must be reversed and the case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.

3

“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a fivestep sequential evaluation process that must be followed in making a disability
determination:
1.

The hearing officer must ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is working
is not disabled regardless of the medical findings.

2.

The hearing officer must determine whether the claimed
impairment is “severe.” A “severe impairment” must significantly
limit the claimant’s physical or mental ability to do basic work
activities. This determination must be made solely on the basis of
the medical evidence.

3.

The hearing officer must decide if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations. The hearing officer must make this determination
using only medical evidence.

4.

If the claimant has a “severe impairment” covered by the
regulations, the hearing officer must determine whether the
claimant can perform his or her past work despite any limitations.

5.

If the claimant does not have the residual functional capacity to
perform past work, the hearing officer must decide whether the
claimant can perform any other gainful and substantial work in
the economy. This determination is made on the basis of the
4

claimant's age, education, work experience, and residual functional
capacity.
See 20 C.F.R. § 404.1520(b)-(f); Copeland, 771 F.3d at 923 (“The Commissioner
typically uses a sequential five-step process to determine whether a claimant is
disabled within the meaning of the Social Security Act. The analysis is: First, the
claimant must not be presently working. Second, a claimant must establish that he has
an impairment or combination of impairments which significantly limit [her] physical
or mental ability to do basic work activities. Third, to secure a finding of disability
without consideration of age, education, and work experience, a claimant must
establish that his impairment meets or equals an impairment in the appendix to the
regulations. Fourth, a claimant must establish that his impairment prevents him from
doing past relevant work. Finally, the burden shifts to the Secretary to establish that
the claimant can perform the relevant work. If the Secretary meets this burden, the
claimant must then prove that he cannot in fact perform the work suggested.” (internal
quotation marks omitted)); Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (“In
evaluating a disability claim, the Commissioner conducts a five-step sequential
analysis to determine whether (1) the claimant is presently working; (2) the claimant
has a severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from
doing any other substantial gainful activity.”).

5

The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
6

established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
The ALJ failed to properly consider the treating physician’s opinions.
Plaintiff contends that the ALJ erred by not considering the 20 C.F.R. §
404.1527 factors before declining to give weight to the opinions of her treating
physician, Robert J. Meador, M.D., who completed a Physical Residual Functional
Capacity Questionnaire on July 14, 2013. See Tr. at 809-11.
Dr. Meador found that, in an eight-hour workday, Plaintiff could sit for no more
than one hour, stand/walk for no more than one-half hour, and lie down/recline for no
more than two hours. He also found that Plaintiff could sit for only thirty to sixty
minutes and stand for only twenty minutes at a time without needing to change
position and would continuously need the flexibility to change positions. Dr. Meador
explained that Plaintiff “cannot sit or stand for prolonged times due to sciatic pain and
myalgias.” Dr. Meador found that Plaintiff could occasionally lift up to ten pounds but
could never lift more than that due to limitations from “severe pain from sciatic nerve
pain” and that Plaintiff was limited in repetitive action involving pushing and pulling
because “she is weak due to pain from myalgias and arthritis.”

7

Dr. Meador also found that Plaintiff’s degree of pain was severe and would
preclude the activity precipitating the pain, that the pain would continuously interfere
with attention and concentration, and that Plaintiff could constantly need rest periods
during the day. And Dr. Meador found that Plaintiff would probably miss work four or
more days a month due to exacerbation of pain or symptoms.
In determining Plaintiff’s RFC, the ALJ gave Dr. Meador’s opinions “no weight.”
Id. at 36. According to the ALJ,
The claimant’s physical examinations and complaints to treating sources
show improvement. There is no confirmation in the record (as the x-rays
only showed spondylosis) to support weakness due to pain from myalgias
and arthritis that would support the limitations assessed. It appears that
Dr. Meador may have relied on symptoms that the claimant mentioned
to him, but were not included in the records.
Id. Contrary to the work-related limitations found by Dr. Meador, the ALJ found that
Plaintiff had the RFC to perform the full range of sedentary work. See id. at 34. In
sedentary work, “periods of standing or walking should generally total no more than
about 2 hours of an 8-hour workday, and sitting should generally total approximately
6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251, at *5 (S.S.A. 1983); see also
20 C.F.R. § 404.1567(a).
The opinion of a treating physician who is familiar with the claimant’s
impairments, treatments, and responses should be accorded great weight in
determining disability. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995);
Greenspan, 38 F.3d at 237. A treating physician’s opinion on the nature and severity
of a patient’s impairment will be given controlling weight if it is “well-supported by

8

medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with ... other substantial evidence.” Martinez, 64 F.3d at 175-76 (citing 20
C.F.R. § 404.1527(c)(2)). And “[t]he opinion of a specialist generally is accorded greater
weight than that of a non-specialist.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2000).
But the ALJ is “free to reject the opinion of any physician when the evidence
supports a contrary conclusion” when good cause is shown. Id. at 455-56 (internal
quotations omitted). An ALJ may show good cause “where the treating physician’s
evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or
diagnostic techniques, or is otherwise unsupported by the evidence.” Id. at 456.
Section 404.1527(c)(2) requires the ALJ to consider specific factors “to assess the
weight to be given to the opinion of a treating physician when the ALJ determines that
[the opinion] is not entitled to ‘controlling weight.’” Id. at 456. Specifically, the ALJ
must consider: (1) the physician’s length of treatment of the claimant; (2) the
physician’s frequency of examination; (3) the nature and extent of the treatment
relationship; (4) the support of the physician’s opinion afforded by the medical evidence
of record; (5) the consistency of the opinion with the record as a whole; and (6) the
specialization of the treating physician. See 20 C.F.R. § 404.1527(c)(2); see also Newton,
209 F.3d at 456. The ALJ must consider all six of the Section 404.1527(c)(2) factors if
“controlling weight” is not given to a treating physician’s medical opinions. See 20
C.F.R. § 404.1527(c) (“Unless we give a treating source’s opinion controlling weight
under paragraph (c)(2) of this section, we consider all of the following factors in
9

deciding the weight we give to any medical opinion.”); see also Myers v. Apfel, 238 F.3d
617, 621 (5th Cir. 2001); McDonald v. Apfel, No. 3:97-CV-2035-R, 1998 WL 159938, at
*8 (N.D. Tex. Mar. 31, 1998). In Newton, the Fifth Circuit concluded that “an ALJ is
required to consider each of the § 404.1527[(c)] factors before declining to give any
weight to the opinions of the claimant’s treating specialist.” 209 F.3d at 456.
But, in decisions construing Newton, the Fifth Circuit has explained that “[t]he
Newton court limited its holding to cases where the ALJ rejects the sole relevant
medical opinion before it.” Qualls v. Astrue, 339 F. App’x 461, 467 (5th Cir. 2009).
Therefore, where there are competing opinions of examining physicians, the ALJ need
not necessarily set forth his analysis of the Section 404.1527(c) factors when declining
to give controlling weight to a treating physician. See id. at 466-67.
Similar to the facts in Newton, “[t]his is not a case where there is competing
first-hand medical evidence and the ALJ finds as a factual matter that one doctor’s
opinion is more well-founded than another.” Newton, 209 F.3d at 458. Here, the ALJ
rejected Plaintiff’s treating physician’s opinions without an existing controverting
treating or examining physician opinion. Therefore, pursuant to Newton, the ALJ was
required to consider each of the Section 404.1527(c) factors prior to rejecting Dr.
Meador’s opinions.
The ALJ did recite, with no further elaboration, that he “considered opinion
evidence in accordance with the requirements of 20 C.F.R. 404.1527” as well as other
regulations. See Tr. at 34. But this statement, on its own, is not sufficient to satisfy

10

Newton. See Nicaragua v. Colvin, No. 3:12-cv-2109-G-BN, 2013 WL 4647698, at *6
(N.D. Tex. Aug. 29, 2013).
Defendant argues that the ALJ did consider the Section 404.1527(c) factors. At
Step 2, the ALJ noted that Dr. Meador treated Plaintiff for joint pain. See Tr. at 30-32.
On April 5, 2012, Dr. Meador performed a physical examination in which he found joint
tenderness and lordosis but no clubbing, cyanosis, edema, or deformity in Plaintiff’s
extremities. Plaintiff had full range of motion in all joints and 5/5 strength. In her
back, Plaintiff had tenderness in the right and left cervical and lumbar paraspinals
and the right and left SI joints. Palpation of her knees revealed right and left medial
joint line tenderness. Dr. Meador recommended back exercises. See Tr. at 30.
On May 1, 2012, x-rays of Plaintiff’s lumbar spine showed mild multilevel
spondylosis, and x-rays of her cervical spine showed loss of normal cervical lordosis and
multilevel cervical spondylosis. See id.
On October 4, 2012, Plaintiff saw Dr. Meador for a follow-up after the x-rays and
reported that her symptoms had worsened. Dr. Meador performed a physical
examination in which he found joint tenderness, bursal tenderness, lordosis, and
diffuse achiness but no clubbing, cyanosis, edema, or deformity in the extremities.
Neurologically, there were no focal deficits, and Plaintiff had normal reflexes,
coordination, muscle strength and tone but with dysesthesias. Dr. Meador stated that
Plaintiff had multiple tender points consistent with fibromyalgia syndrome, which
might be exacerbated by arthritis and personal stressors. See id.

11

On September 5, 2013, Plaintiff reported to Dr. Meador that she felt better. Dr.
Meador performed a physical examination in which he found joint tenderness, bursal
tenderness, lordosis, and diffuse achiness in the upper shoulder region and hip bursal
region. Plaintiff had normal reflexes, coordination, and muscle strength and tone with
dysesthesias. Palpation of the back revealed tenderness in the right cervical and
lumbar paraspinals, SI joints, left cervical and lumbar paraspinals, and left SI joints.
Dr. Meador prescribed medication and advised active back exercises. See id. at 32.
Defendant argues that, in this analysis, the ALJ considered the factors of type
of relationship, frequency of examination, and nature and extent of treatment.
Defendant also argues that the ALJ considered the factors of support in the record and
consistency with the record as a whole. At Step 3, the ALJ found that “[t]he objective
medical evidence does not support a finding of disability.” Id. at 35. The ALJ explained
that, “[a]s noted by Dr. Meador on July 14, 2013, x-rays of the cervical spine and the
lumbar spine only showed spondylosis. There is no other evidence in the record to
support a finding of disabling weakness due to pain from myalgias and arthritis.” Id.
Based on his review of medical notes that showed “tenderness was the most cited
finding,” the ALJ found that “[t]he same conclusion is appropriate for Dr. Meador’s
finding of severe sciatic nerve pain.” Id.
To support these findings, Defendants cite to evidence in the record. But the ALJ
did not discuss that evidence, and “[t]he ALJ’s decision must stand or fall with the
reasons set forth in the ALJ’s decision, as adopted by the Appeals Council.” Newton,
209 F.3d at 455. “Reviewing courts do not consider rationales supporting an ALJ’s
12

decision that are not invoked by the ALJ.” Bragg v. Comm’r of Soc. Sec. Admin., 567
F. Supp. 2d 893, 907 (N.D. Tex. 2008). Moreover, medical notes that do not give an
opinion on Plaintiff’s physical limitations in the workplace or what activities she would
be able to perform do not controvert the opinion of Plaintiff’s treating physician. See
Jackson v. Astrue, No. 4:10-cv-150-Y, 2011 WL 816850, at *9 (N.D. Tex. Feb. 15, 2011).
And, as to the last factor, Defendant argues that there is no indication that Dr.
Meador was a specialist. But the ALJ did not mention this factor in his decision, and
the Court is unable to determine if he considered it.
The ALJ’s decision fails to show that he conducted a detailed analysis of Dr.
Meador’s opinions in accordance with the requirements of Section 404.1527(c). The ALJ
did not even enumerate the Section 404.1527(c) factors, let alone discuss them in any
sufficient level of detail. See Tolbert v. Astrue, No. 4:10-cv-349-L, 2011 WL 3759049,
at *7 (N.D. Tex. Aug. 24, 2011). While the ALJ’s short narrative discussion of Dr.
Meador’s opinions may have mentioned facts relevant to the factors of type of
relationship, frequency of examination, and nature and extent of treatment, it fails to
make clear that the ALJ actually considered those factors. And, even if he did, his
conclusory statements that Dr. Meador’s opinions were not supported by objective
medical evidence or other evidence of record fail to provide the detailed analysis
necessary to show that he considered the factors of support in the record, consistency
with the record as a whole, and the treating physician’s specialty, if any, and do not
show good cause for rejecting Dr. Meador’s opinions concerning Plaintiff’s work-related
limitations. See id.
13

The ALJ failed to properly consider Dr. Meador’s opinions, which found disabling
work-related limitations. As a result, the error is not harmless because, if the ALJ had
given more weight to Dr. Meador’s opinions, he may have found Plaintiff disabled.
Because the Court concludes that the ALJ’s failure to properly consider the
treating physician’s opinions was prejudicial, it will not address Plaintiff’s argument
that the ALJ failed to develop the record by contacting Dr. Meador for clarification. The
ALJ will have the opportunity to address the sufficiency of the record on remand.
The ALJ’s RFC was not supported by substantial evidence.
The ALJ determined that Plaintiff has the RFC to perform the full range of
sedentary work and, specifically, that Plaintiff is able to perform detailed but not
complex work tasks. See Tr. at 34. Plaintiff contends the ALJ erred in finding that she
has the RFC to perform detailed work because that finding is not supported by a
physician’s opinion and there was no function-by-function analysis to support it.
Defendant does not address Plaintiff’s argument that there was no physician opinion
to support the RFC finding that Plaintiff is able to perform detailed work.
The RFC is an assessment, based on all of the relevant evidence, of a claimant’s
ability to do work on a sustained basis in an ordinary work setting despite her
impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a); Myers, 238 F.3d at 620. The
RFC refers to the most that a claimant is able to do despite her physical and mental
limitations. See 20 C.F.R. §§ 404.1545(a), 416.945(a). The RFC is considered by the
ALJ, along with the claimant’s age, education, and work experience, in determining
whether a claimant can work. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Generally,
14

an ALJ should request a medical source statement that describes the types of work a
claimant can still perform. See Ripley, 67 F.3d at 557. But the absence of such a
statement is not reversible error if the ALJ’s decision is nevertheless supported by
substantial evidence. See id. Reversal is warranted only if the claimant shows that she
was prejudiced. See id.
In Ripley, the ALJ ruled that the claimant could perform sedentary work even
though there was no medical evidence or testimony supporting that conclusion. See id.
The Court of Appeals court noted that the claimant’s record contained a vast amount
of evidence establishing that he had a back problem but did not clearly establish the
effect that condition had on his ability to work. See id. The Fifth Circuit therefore
remanded with instructions for the ALJ to obtain a report from a treating physician
regarding the effects of the claimant’s back condition on is ability to work. See id. at
557-58. The Fifth Circuit panel rejected the Commissioner’s argument that the medical
evidence substantially supported the ALJ’s conclusion because the Court of Appeals
was unable to determine the effects of the claimant’s conditions, “no matter how
‘small’” on his ability to work, absent a report from a qualified medical expert. Id. at
558 n.27.
Dr. Meador’s opinion concerning Plaintiff’s physical limitations is the only
medical opinion evidence in the record regarding the effects of Plaintiff’s severe
impairments on her ability to work. Julie Duncan, Ph.D., conducted a psychological
evaluation and diagnosed Plaintiff with recurrent and severe major depressive
disorder, panic disorder, pain disorder, and a global assessment of functioning of 50.
15

See Tr. at 405-09. While Dr. Duncan’s report demonstrates an impairment, it does not
indicate how that impairment affects Plaintiff’s ability to work.
The ALJ was not entitled to simply rely on his own opinion of the medical
evidence to determine the effects of Plaintiff’s condition on her ability to work. See
Williams v. Astrue, 355 F. App’x 828, 832 n.6 (5th Cir. 2009) (“[A]n ALJ may not –
without opinions from medical experts – derive the applicant’s residual functional
capacity based solely on the evidence of his or her claimed medical conditions. Thus,
an ALJ may not rely on his own unsupported opinion as to the limitations presented
by the applicant’s medical conditions.”); Nesbitt v. Colvin, No. 3:12-cv-98-BN, 2013 WL
5299261, at *5 (N.D. Tex. Sept. 20, 2013) (“While the ALJ may choose to reject [a
doctor’s] opinions, she cannot then independently decide the effects of Plaintiff’s mental
impairments on her ability to perform work-related activities, as that is prohibited by
Ripley.”). Yet that is exactly what the ALJ did.
Nor was the ALJ’s error harmless. Had he obtained an expert medical opinion
about the types of work activities that Plaintiff could still perform given her mental
impairments, it might have changed the result of the ultimate disability determination.
The ALJ relied on answers to improper hypothetical questions.
Plaintiff contends the ALJ’s determination that she was able to perform past
relevant work was based on answers to improper hypothetical questions to the
vocational expert (“VE”). The ALJ found that Plaintiff has the RFC to perform the full
range of sedentary work and expressly found that she is able to perform detailed but
not complex work. See Tr. at 34. Based on the RFC for sedentary work, the ALJ found
16

that Plaintiff was capable of performing past relevant work as a bookkeeper and wire
transfer clerk. See id. at 36. In making that finding, the ALJ expressly relied on the
testimony of a VE. See id. According to Plaintiff, the VE based his testimony on
defective hypothetical questions that did not include a limitation to detailed but not
complex work, which was recognized by the ALJ in the hearing decision.
A hypothetical question to a vocational expert cannot provide substantial
evidence supporting the denial of benefits unless: (1) the hypothetical reasonably
incorporates all the claimant’s disabilities recognized by the ALJ; and (2) the claimant
or her representative is afforded the opportunity to correct deficiencies in the question.
See Boyd v. Apfel, 239 F.3d 698, 706-07 (5th Cir. 2001); Bowling v. Shalala, 36 F.3d
431, 436 (5th Cir. 1994). Where an ALJ finds that a claimant is not disabled based on
answers to a defective hypothetical, substantial evidence does not support the finding,
and the case should be reversed and remanded for further administrative proceedings.
See Bridges v. Comm’r of Soc. Sec. Admin, 278 F. Supp. 2d 797, 807 (N.D. Tex. 2003).
At the administrative hearing, the ALJ asked the VE about the skill and
exertional levels of Plaintiff’s past relevant work. The ALJ testified that Plaintiff had
past relevant work as a bookkeeper, DOT 210.382-014, which is sedentary work at
specific vocational preparation (“SVP”) level 6, and as a wire transfer clerk, DOT
203.562-010, which is sedentary work at SVP level 4. See Tr. at 200; see also DICOT
210.382-014 (G.P.O.), 1991 WL 671821 (Bookkeeper); DICOT 203.562-010 (G.P.O.),
1991 WL 671692 (Wire Transfer Clerk).

17

The ALJ then asked the VE if there were jobs that could be performed by a
person of Plaintiff’s age, education, and work experience who was limited with the
following restrictions: sitting no more than six hours in an eight-hour day; standing
and walking no more than six hours out in an eight-hour day; and lifting no more than
20 pounds occasionally and ten pounds frequently. The VE testified that such a person
would be able to perform the full range of light work. In a follow-up hypothetical, the
ALJ added the limitation of being restricted to simple one-to-two step, repetitive tasks
that can be learned in thirty days or less. Again, the VE testified that such a person
could perform work at the light level and specifically identified the jobs of cashier,
office helper, or counter clerk. See Tr. at 201-02.
Based on this testimony, and specifically the VE’s testimony “that [Plaintiff’s]
past work as a bookkeeper ... was skilled, sedentary work and her work as a wire
transfer clerk ... was semi-skilled, sedentary work,” the ALJ found that Plaintiff could
perform the full range of sedentary work and “is able to perform detailed but not
complex work tasks.” Id. at 34. The ALJ then found that Plaintiff could perform past
relevant work as a bookkeeper and wire transfer clerk. See id. at 36. But these findings
were based on hypothetical questions posed to the VE that did not incorporate the
ability to perform detailed tasks. See id. at 200-03. As a result, the hypothetical
questions were defective. See Boyd, 239 F.3d at 707 (disability determination is not
supported by substantial evidence if hypothetical to vocational expert does not
incorporate all functional limitations found by the ALJ); Easterling v. Astrue, No. 3-10CV-0963-BD, 2011 WL 4424389, at *3 (N.D. Tex. Sept. 22, 2011).
18

Defendant does not directly address Plaintiff’s argument that the hypothetical
questions posed to the VE did not include the limitation to detailed work found by the
ALJ in his decision. And Defendant does not address, and seemingly concedes, that
Plaintiff cannot perform past relevant work as a bookkeeper, which is classified as
skilled work, but argues that she can perform work as a wire transfer clerk, which is
classified as semi-skilled. Defendant argues that the regulatory definition of semiskilled work contemplates that an individual can perform detailed work activities but
not complex work. According to 20 C.F.R. § 404.1568(b),
[s]emi-skilled work is work which needs some skills but does not require
doing the more complex work duties. Semi-skilled jobs may require
alertness and close attention to watching machine processes; or
inspecting, testing or otherwise looking for irregularities; or tending or
guarding equipment, property, materials, or persons against loss, damage
or injury; or other types of activities which are similarly less complex
than skilled work, but more complex than unskilled work. A job may be
classified as semi-skilled where coordination and dexterity are necessary,
as when hands or feet must be moved quickly to do repetitive tasks.
But reliance on inferences drawn from the statutory definition belies the fact that the
ALJ’s hypothetical questions to the VE inquired about simple, repetitive one-to-two
step tasks learned in thirty days or less, not detailed work. And the use of the word
“detailed” in the Dictionary of Occupational Titles, which was used by the VE to
identify jobs, is not equivalent to the word “detailed” as used in the Social Security
regulations. See Zapata v. Colvin, No. 4:13-cv-340-Y, 2014 WL 435243, at *10 (N.D.
Tex. Sept. 2, 2014).
Moreover, the VE testified that the hypothetical person described in the ALJ’s
questions could perform light work, which refers to exertional level. See SSR 00-4p,
19

2000 WL 1898704, at *3. And, while a person who can perform detailed work
presumably could also perform simple, repetitive one-to-two step tasks, it does not
follow that the opposite is true.
Defendant also argues that the record supports the ALJ’s RFC finding that
Plaintiff can perform detailed work because it shows that Plaintiff can grocery shop,
manage money, use a computer, drive, and manage her diabetes. See Dkt. No. 20 at 6.
But, as previously stated, “[t]he ALJ’s decision must stand or fall with the reasons set
forth in the ALJ’s decision, as adopted by the Appeals Council.” Newton, 209 F.3d at
455. “Reviewing courts do not consider rationales supporting and ALJ’s decision that
are not invoked by the ALJ.” Bragg v. Comm’r of Soc. Sec. Admin., 567 F. Supp. 2d at
907; see also Hernandez v. Astrue, No. A-11-CA-071 LY, 2011 WL 4915859, at *5 (W.D.
Tex. Oct. 12, 2011).
Because the ALJ’s unfavorable decision was based on the VE’s answers to
defective hypothetical questions, substantial evidence does not support the ALJ’s
finding that Plaintiff was not disabled. And, because there was no discrepancy until
the ALJ issued his written decision finding that Plaintiff’s RFC was limited to
sedentary work with the ability to perform detailed but not complex tasks, Plaintiff did
not have a “fair opportunity” to correct the hypothetical question at the administrative
hearing. See Reynolds v. Colvin, No. 7:12-cv-0065-O-BF, 2014 WL 1243682, at *5 (N.D.
Tex. Mar. 25, 2014).

20

Conclusion
The hearing decision is reversed and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.1
DATED: January 25, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

By remanding this case for further administrative proceedings, the Court does
not suggest that Plaintiff is or should be found disabled.
1

21