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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2003 Decided January 13, 2004
No. 02–5312
JOAN S. BUTLER,
APPELLANT
v.
JO ANNE B. BARNHART,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv00488)
Stephen F. Shea argued the cause for the appellant.
Fred E. Haynes, Assistant United States Attorney, argued
the cause for the appellee. Roscoe C. Howard, Jr., United
States Attorney, and R. Craig Lawrence, Assistant United
States Attorney, were on brief. Mark E. Nagle, Assistant
United States Attorney, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, TATEL and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Joan Butler
appeals from the district court’s judgment affirming the
denial by the Social Security Administration (SSA) Commis-
sioner (Commissioner) of her application for disability insur-
ance benefits under Title II of the Social Security Act (Act),
42 U.S.C. §§ 401 et seq., and supplemental security income
under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. On
appeal Butler maintains that the decision of the Administra-
tive Law Judge (ALJ) who evaluated her case is not sup-
ported by substantial evidence in the record and was reached
by the incorrect application of relevant legal standards. We
agree; therefore, we reverse the judgment of the district
court and remand to that court with instructions to remand in
turn to the Commissioner for further proceedings.
I. FACTUAL BACKGROUND
Joan Butler is today a 50–year-old woman with a tenth-
grade education and no additional training, vocational or
otherwise. From 1990 through part of 1995, Butler worked
as an Environmental Services Technician (EST) at Greater
Southeast Community Hospital (GSCH) in Washington, D.C.;
in this capacity she performed such tasks as making beds,
mopping floors and cleaning. In early August 1995 Butler
suffered a severe migraine headache and was admitted to
GSCH. She stayed for four days, during which time she was
treated by a neurologist, Dr. William Lightfoote. His notes
indicate that Butler experienced three similar ‘‘episodes’’
during the past five years. Joint Appendix (JA) 163. He
placed her on medication (Inderal) and scheduled diagnostic
tests. The results of the tests were normal and Lightfoote
scheduled additional tests, including magnetic resonance im-
aging (MRI). On August 22, 1995 Butler attempted to return
to work but suffered another migraine; the following day she
saw Lightfoote who counseled her to remain off-duty for the
next five days.
3
On August 29, 1995 Lightfoote reported that while Butler’s
headaches had subsided, she was experiencing ‘‘low back pain,
with radiation into the lateral aspect of both legs.’’ Id. 209.
Lightfoote noted that the pain prevented Butler from getting
out of bed. He ordered an MRI of the lumbar spine, an
electromyogram (EMG) and nerve conduction tests of both
lower extremities. The MRI found ‘‘narrowing and degener-
ation at L5–S1 TTT with a very small, subligamentous hernia-
tion of nuclear material to the right of midline that minimally
flattens the thecal sac. Narrowing and degeneration at L4–5
TTT with a diffusely bulging annulus TTT [and] mild dextrosco-
liosis.’’ Id. 156. Butler suffered another migraine on Sep-
tember 6, 1995 and the next day Lightfoote noted that she
should remain off-duty until additional medical opinions could
be obtained. Lightfoote also indicated that he would obtain a
second neurological opinion from Dr. Taghi Asadi.
On Lightfoote’s referral, Butler saw Dr. Alfred Pavot, who
performed an electroneurodiagnostic study. On September
11, 1995 Pavot reported that the results of the study were
consistent with lumbrosacral facet syndrome. Butler saw
Asadi later that week. Asadi’s report noted that Butler had
‘‘a history of low back pain’’ but was referred to him regard-
ing the ‘‘diagnosis and management of her headaches.’’ Id.
207. He described her headaches as having ‘‘a character of
becoming cluster-like with more frequent attacks for a couple
of weeks’’ and noted that his physical examination revealed
‘‘no limitation of the cervical spine.’’ Id. Asadi concluded
that she suffered migraines with ‘‘aura’’ and started her on
Elavil, as she was already ‘‘receiving the maximum dose of
Inderal.’’ Id.
On October 17, 1995 Lightfoote observed that Butler con-
tinued to suffer lower back pain and diagnosed a herniated
inverterbral disc and lubrosacral facet syndrome. He noted
that when she returned to work she would ‘‘not be able to do
any lifting, bending, or stooping,’’ ‘‘no lifting greater than 10
pounds’’ and that this limitation would ‘‘have to be written in
4
her ‘return-to-work contract.’ ’’1 Id. 188. Later that month
Lightfoote completed a disability form for Butler, in which he
stated that he could not determine when she would be able to
return to work and described her condition as ‘‘severe limita-
tion of functional capacity; incapable of minimal (sedentary)
activity.’’ Id. 101.
On November 16, 1995 Lightfoote reported that while
Butler’s headaches were ‘‘subsiding,’’ she continued to experi-
ence ‘‘significant’’ pain in her lower back. Id. 187. He noted
that Butler ‘‘can hardly get out of bed, without rolling over
first and rolling herself out of the bed to the floor,’’ ‘‘has
difficulty standing up’’ and suffers ‘‘severe pain radiating into
the lower extremities.’’ Id. He stated that he doubted she
would be able to return to her position at GSCH. On
December 9, 1995 Lightfoote described Butler’s condition as
‘‘migraine with visual fortification spectra, lumbar disc hernia-
tion and lumbar facet syndrome.’’ Id. 176. Based on this
diagnosis, he concluded that Butler was capable of performing
sedentary, clerical or administrative work with certain re-
strictions. Specifically, he noted that Butler could not sit or
stand for more than one hour at a time or lift objects heavier
than 10 pounds and that she should never climb, bend or
stoop. On a disability form completed around the same time,
Lightfoote noted these restrictions on Butler’s future work
activities but characterized her prognosis as ‘‘good.’’ Id. 153.
He further identified Butler as a candidate for rehabilitation
services, job modification and vocational counseling.
On January 23, 1996 Lightfoote opined that Butler’s head-
aches had become infrequent and concluded that she ‘‘is now
ready’’ to return to work in a capacity consistent with the
restrictions identified in his earlier reports. Id. 204. On
April 16, 1996 Lightfoote again observed that Butler’s head-
1 Although it appeared at this point that Lightfoote believed
Butler capable of lifting at most 10 pounds, his later reports plainly
found Butler incapable of lifting as part of any work activity. E.g.,
JA 125 (July 16, 1996 report), 126–28 (July 9, 1996 report and
disability form).
5
aches were ‘‘very infrequent’’ but noted that her lumbar spine
problems persisted. Id. 203. He stated that she had a
herniated disk at two levels ‘‘at least’’ and some days could
not get out of bed. Id. He also referred her to Dr. Lavern
Bentt for lumbar epidural steroid injections.
In a report dated May 6, 1996 Bentt stated that during the
previous six months Butler’s back pain had progressively
worsened ‘‘to the point where she cannot sit up and stand out
of bed and needs to roll herself out of bed in order to avoid
excruciating pain.’’ Id. 148. Bentt also remarked that aside
from the moderate relief provided by physical therapy ‘‘there
has been nothing that [Butler] has tried so far which has
improved her pain.’’ Id. Bentt noted the results of a CT
myelogram, ‘‘which demonstrated mild anterior extradural
defects of the thecal sac at L4–5 and L5–S1.’’ Id. He
performed a therapeutic lumbar epidural injection and pro-
posed a series of additional injections in the event the first
provided Butler ‘‘some degree of relief.’’ Id. Butler subse-
quently received two additional lumbar epidural injections.
At the time Butler received her third epidural injection, Bentt
noted that the previous two had succeeded in easing her pain;
each injection provided two weeks of complete relief but the
pain eventually returned, ‘‘although not to the same intensity
and degree.’’ Id. 132. His report also noted that her MRI
and CT myelogram showed ‘‘nerve root pathology at both L4–
5 and L5–S1.’’ Id. Bentt planned for Butler to return in two
to three weeks for diagnostic lumbar L4–5 and L5–S1 facet
joint injections. The record is silent on whether Butler
received the additional injections.
According to Lightfoote’s July 9, 1996 report, he completed
disability forms for Butler in which he recommended that her
job be modified to accommodate her back pain and headache
disorder and that she receive vocational counseling and/or
retraining. On the disability form, Lightfoote classified But-
ler’s physical impairments as ‘‘severe,’’ signifying that she is
‘‘incapable of minimal activity or sedentary work.’’ Id. 128.
Although he indicated that a job modification would enable
6
Butler to work with her impairments, he explained that
Butler could not lift, bend, stoop, push or pull and character-
ized her prognosis for recovery as good to poor. Id. In his
July 16, 1996 report Lightfoote stated that Butler should
consider retirement on total disability or ‘‘cross-training with
Vocational Rehabilitation, so that she can get a job that does
not entail any lifting, bending, stooping or reaching.’’ Id.
125. In a November 3, 1996 report Lightfoote stated that
Butler was ‘‘continuing in a stable situation’’ but needed a
transcutaneous electrical nerve stimulator (TENS) unit—a
small device used to produce electroanalgesia—from GSCH.2
On November 19, 1996 Dr. James Yan, a neurologist,
evaluated Butler at the request of the Disability Determina-
tions Division of the District of Columbia Rehabilitation Ser-
vices Administration (Disability Determinations Division).
Yan noted that for the past three years, Butler’s ‘‘main
problem’’ had been ‘‘severe disk disease over the lumbosacral
area’’ but that she also was hospitalized as a result of her last
migraine headache, during which she experienced ‘‘a stroke-
like syndrome.’’ Id. 106. After finding that Butler ‘‘has
severe pain which causes inability to get up easily,’’ ‘‘cannot
stand up for too long,’’ ‘‘cannot lift heavy objects,’’ and suffers
‘‘complex migraine headaches, which come on almost once
every two months TTT [and] compromise her performance at
work,’’ Yan concluded that her examination was ‘‘otherwise
TTT basically within normal limits.’’ Id. 107. He also opined
that Butler’s spinal disks appeared to be within ‘‘normal
limits.’’ Id. On November 18, 1996 the Disability Determi-
nations Division referred Butler to Dr. Harry Press for a
radiology study. Two days later, Press performed a lumbar
spine examination which revealed a ‘‘mild’’ scoliosis and ath-
erosclerosis but was ‘‘otherwise negative.’’ Id. 104.
From December 1996 to March 1997, Lightfoote issued his
last set of reports contained in the record. On December 17,
2 Shortly thereafter, on November 5, 1996, Lightfoote reported
that Butler suffered an episode of migraine headaches.
7
1996 Lightfoote stated that Butler received a TENS unit for
her lower back pain and that he added lithium carbonate to
her prescribed medications to combat her ‘‘lingering’’ head-
ache disorder. Id. 198. On March 17, 1997 Lightfoote
opined that Butler continued to experience lower back pain
and ‘‘pounding in the head’’ and again adjusted her prescrip-
tion regimen. Id. 196. On the same day he stated that
Butler had evidence of herniated nucleus pulposus (HNP) in
her lumbar region, that an independent medical examination
(IME) disclosed a possible herniated disc in the cervical
region and that she had severe migraine headaches. He
concluded that ‘‘at the present time[ ] [Butler] is 100% dis-
abled from any gainful employment.’’ Id. 197.
The last report contained in the record is a residual func-
tional capacity assessment completed on March 30, 1997 by
Dr. Hall, a medical consultant to the Disability Determina-
tions Division. Hall’s evaluation of Butler’s exertional limita-
tions found that she could occasionally lift and carry 20
pounds, frequently lift and carry 10 pounds, stand and/or
walk at least two hours in an eight-hour workday, sit for
about six hours in an eight-hour workday and had an unlimit-
ed ability to push and/or pull. With respect to her postural
limitations, Hall concluded that Butler was capable of occa-
sionally climbing, balancing, stooping, kneeling and crouching,
but could never crawl or climb a ladder, rope or scaffold.
Hall also concluded that Butler must avoid concentrated
exposure to vibration. Hall acknowledged that his findings
regarding Butler’s limitations differed significantly from
those of her treating physician, Dr. Lightfoote.
II. STATUTORY FRAMEWORK
To qualify for disability insurance benefits and supplemen-
tal security income under Titles II and XVI of the Act, Butler
must establish that she is ‘‘disabled.’’ 42 U.S.C.
§§ 423(a)(1)(D), 1382(a)(1). ‘‘Disability’’ means the ‘‘inability
to engage in any substantial gainful activity by reason of any
medically determinable or mental impairment which can be
8
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.’’ Id. §§ 423(d)(1)(A), 1382c(a)(3)(A). With certain
exceptions not relevant here, an individual is disabled ‘‘only if
[her] physical or mental impairment or impairments are of
such severity that [she] is not only unable to do [her] previous
work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.’’ Id.
§§ 423(d)(1)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential
evaluation process for assessing a claimant’s alleged disabili-
ty. See 20 C.F.R. §§ 404.1520, 416.920. The claimant carries
the burden of proof on the first four steps. Id. §§ 416.1520,
416.920. First, the claimant must demonstrate that she is not
presently engaged in ‘‘substantial gainful’’ work. Id.
§§ 404.1520(b), 416.920(b). Second, a claimant must show
that she has a ‘‘severe impairment’’ that ‘‘significantly limits
[her] physical or mental ability to do basic work activities.’’
Id. §§ 404.1520(c), 416.920(c). Third, if the claimant suffers
from an impairment that meets the duration requirement and
meets or equals an impairment listed in Appendix 1 to the
Commissioner’s regulations, she is deemed disabled and the
inquiry is at an end. Id. §§ 404.1520(d), 416.920(d). If the
claimant does not satisfy step three, the inquiry proceeds to
the fourth step, which requires her to show that she suffers
an impairment that renders her incapable of performing ‘‘past
relevant work.’’ Id. §§ 404.1520(e), 416.920(e). Once a claim-
ant has carried the burden on the first four steps, the burden
shifts to the Commissioner on step five to demonstrate that
the claimant is able to perform ‘‘other work’’ based on a
consideration of her ‘‘residual functional capacity’’ (RFC),
age, education and past work experience. Id. §§ 404.1520(f),
416.920(f). It is the ALJ’s application of this analytical
sequence that prompted Butler’s appeal.
III.PRIOR PROCEEDINGS
Butler applied for disability insurance benefits and supple-
mental security income on October 10, 1996 and September
9
12, 1996, respectively, claiming that she had become disabled
and unable to work on August 7, 1995 as the result of back
pain and migraine headaches. Her applications were rejected
at every stage of the administrative process. The SSA
denied Butler’s claims initially and upon reconsideration. At
Butler’s request, an ALJ subsequently held a hearing, after
which he also denied Butler’s claims in a decision dated
January 29, 1998. In performing the five-step evaluation
process outlined above, the ALJ found in Butler’s favor on
the first two steps: he concluded that she had not engaged in
substantial gainful employment since August 1995 and that
her headaches and back problems constituted severe impair-
ments. At step three, the ALJ concluded that Butler’s
impairments did not meet or equal an impairment listed in
Appendix 1.
Turning to step four, the ALJ determined that while Butler
was incapable of performing her past relevant work as an
EST, she retained the RFC ‘‘to perform sedentary work so
long as she can sit or stand at her own option, where the
work does not involve lifting more than four pounds or
involve more than minimal stress.’’ JA 32. As support for
his conclusion, the ALJ referenced the reports of Drs. Asadi,
Press, Yan and Lightfoote. The ALJ’s explanation of how
the medical reports supported his finding was limited to the
observations that Yan’s report ‘‘noted that [Butler] could not
perform stressful work or lift heavy objects but otherwise her
examination was basically within normal limits’’ and that
Lightfoote’s December 9, 1995 report found Butler ‘‘capable
of sedentary, clerical or administrative work but she could not
sit or stand for more than one hour or ever climb, bend, or
stoop.’’ Id.
In evaluating Butler’s allegations of pain, the ALJ conclud-
ed that her pain did not preclude her from engaging in the
limited range of sedentary work of which he found her
capable. He explained that ‘‘there is no evidence of any
underlying conditions which could be producing pain of the
intensity which she has alleged.’’ Id. 33. The ALJ noted
that Butler had not undergone or contemplated surgery to
10
alleviate her pain, nor had she been hospitalized, and that her
medication had brought her a measure of relief. He also
found that the simple functions of daily living that she
continued to perform—washing dishes, making her bed, laun-
dering her clothes, using a car to shop for groceries once a
week—were consistent with the residual functional capacity
he assigned her. The ALJ therefore concluded that, insofar
as Butler’s daily activities were consistent with his RFC
assessment, her allegations of pain were ‘‘only credible to that
extent.’’ Id.
Because the ALJ determined that Bulter’s RFC neverthe-
less prevented her from performing her past relevant work,
he proceeded to the final step, which obligated the Commis-
sioner to demonstrate the existence of a significant number of
jobs in the economy that someone with Butler’s RFC could
perform. The ALJ explained that at the hearing Leonard
Perlman, an independent vocational expert, testified that
someone with Butler’s RFC would be able to perform approx-
imately 20 per cent of the 200 sedentary, ‘‘unskilled occupa-
tions administratively noticed by the Commissioner’’ in the
Medical–Vocational guidelines. Id. Perlman offered the oc-
cupations of film development assistant, visual inspector of
small items and bindery worker as examples. Because some-
one with Butler’s ‘‘credible limitations’’ was able to perform a
significant number of jobs in the economy, the ALJ concluded
that Butler was not disabled under the Act. Id.
The SSA Appeals Council affirmed the ALJ’s decision on
January 6, 1999. Butler then petitioned for review of the
Commissioner’s decision in district court under 42 U.S.C.
§ 405(g); she fared no better there. On August 2, 2002 the
district court granted the Commissioner’s motion for affir-
mance, concluding that, while the ALJ’s finding of non-
disability was ‘‘certainly spare,’’ it rested on substantial evi-
dence contained in the record. JA 14–19. The district court
stated that the ALJ rejected Lightfoote’s opinion that Butler
can never stoop because ‘‘this finding contradicted the assess-
ment of other physicians that he found credible.’’ Id. 14.
The district court further explained that ‘‘the ALJ considered
11
all of Dr. Lightfoote’s reports—some of which agreed that
[Butler] can perform sedentary work—alongside the other
medical evidence and concluded that [Butler] can stoop occa-
sionally.’’ Id. 15. Moreover, according to the district court,
the ALJ’s opinion ‘‘reveals his consideration of each evidentia-
ry source, and the reviewing court can discern his logic
without difficulty and without post hoc explanation.’’ Id. 19.
The district court therefore concluded that remanding But-
ler’s case to the agency ‘‘would be both inefficient and unrea-
sonable.’’ Id. 16. Now, more than five years after the ALJ
found that Butler was not disabled, her case has made its way
to us.
IV. DISCUSSION
‘‘In a disability proceeding, the ALJ ‘has the power and the
duty to investigate fully all matters in issue, and to develop
the comprehensive record required for a fair determination of
disability.’ ’’ Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C.
Cir. 1989) (quoting Diablo v. Sec’y of HEW, 627 F.2d 278, 281
(D.C. Cir. 1980)). The Commissioner’s ultimate determina-
tion will not be disturbed if it is based on substantial evidence
in the record and correctly applies the relevant legal stan-
dards. 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996); Brown v. Bowen, 794 F.2d 703,
705 (D.C. Cir. 1986). 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The test ‘‘requires more than a scintilla, but
can be satisfied by something less than a preponderance of
the evidence.’’ Fla. Mun. Power Agency v. FERC, 315 F.3d
362, 365–66 (D.C. Cir.) (internal quotation omitted), cert.
denied, 124 S. Ct. 386 (2003). Although we must carefully
scrutinize the entire record, Brown, 794 F.2d at 705, we are
not to determine ourselves whether Butler is disabled; we
assess only whether the ALJ’s finding that she is not is based
on substantial evidence and a correct application of the law.
We conclude that the ALJ’s decision fails this review.
12
Butler raises four challenges to the ALJ’s decision. She
claims that the ALJ failed to properly (1) account for her
physical limitations in his RFC assessment; (2) weigh the
opinions of her treating physician, Dr. Lightfoote; and (3)
assess her allegations of pain. Because of these errors,
Butler claims, the ALJ’s reliance on the vocational expert’s
testimony to support his no disability decision was misplaced.
The Commissioner counters that the ALJ reached his deter-
mination based upon a proper consideration of all the record
evidence. The district court agreed with the Commissioner,
finding that ‘‘the ALJ’s opinion makes it clear that there is
substantial evidence in the record and that his opinion rests
upon that evidence.’’ JA 18. But the substantial evidence
standard requires the court to review the record itself to
determine whether it substantiates the story the agency
would have it tell. Granted, this level of review is a deferen-
tial one but it is no less thoroughgoing for being so. See
Brown, 794 F.2d at 705. On a correct application of the
standard, the ALJ’s decision cannot stand. Accordingly, we
reverse and remand to the district court with instructions to
remand to the Commissioner for further proceedings. See id.
at 709.
A. BUTLER’S RESIDUAL FUNCTIONAL CAPACITY
Butler asserts that in assessing her RFC the ALJ failed to
properly consider her inability to meet certain physical de-
mands of work activity—namely, her inability to lift, which is
an exertional limitation, as well as her inability to reach and
stoop, which are both postural limitations. We agree. The
ALJ’s RFC assessment bears on Butler’s ability to perform
past relevant work (step four) and her ability to do ‘‘other
work’’ (step five). 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f);
id. §§ 404.1545(a)(5)(i)-(ii), 416.945(a)(5)(i)-(ii). It is designed
to determine the claimant’s uppermost ability to perform
regular and continuous work-related physical and mental
activities in a work environment. Id. §§ 404.1545(a)(1),
416.945(a)(1); see also Social Security Ruling (SSR) 96–8p,
Assessing Residual Functional Capacity in Initial Claims,
1996 WL 374184, at *2–*3 (SSA July 2, 1996). In effect, it is
13
a ‘‘function-by-function’’ inquiry based on all of the relevant
evidence of a claimant’s ability to do work and must contain a
‘‘narrative discussion’’ identifying the evidence that supports
each conclusion. SSR 96–8p, 1996 WL 374184, at *3, *7; see
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In performing the
RFC assessment, the ALJ must explain how he considered
and resolved any ‘‘material inconsistencies or ambiguities’’
evident in the record, as well as the reasons for rejecting
medical opinions in conflict with the ultimate RFC determina-
tion. SSR 96–8p, 1996 WL 374184, at *7.
Here the ALJ found that Butler’s physical impairments
prevented her from performing her past relevant work but
did not preclude her from engaging in a limited range of
sedentary work. He concluded that Butler ‘‘retains the resid-
ual functional capacity to perform sedentary work so long as
she can sit or stand at her own option, where the work does
not involve lifting more than four pounds or involve more
than minimal stress.’’3 JA 32. In so concluding, the ALJ
was required to consider the nature and extent of any limit on
her ability to ‘‘perform certain physical demands of work
activity,’’ such as lifting, reaching or stooping, that affect her
ability to perform past relevant or other work. Id.
§§ 404.1545(b), 416.945(b). Social Security Ruling 96–9p
gives the ALJ additional guidance regarding the erosive
effect any physical limitations may have on the ‘‘unskilled
sedentary occupational base’’—the occupational base to which
the ALJ concluded Butler’s impairments limited her. See
SSR 96–9p, Determining Capability to Do Other Work—
Implications of a Residual Functional Capacity for Less
Than a Full Range of Sedentary Work, 1996 WL 374185, at
*5 (SSA July 2, 1996). The Ruling explains that ‘‘[a]n accu-
3 Sedentary work requires ‘‘lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools.’’ 20 C.F.R. §§ 404.1567(a), 416.967(a).
‘‘Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.’’ Id.
§§ 404.1567(a), 416.967(a).
14
rate accounting of [a claimant’s] abilities, limitations, and
restrictions is necessary to determine the extent of erosion of
the occupational base, the types of sedentary occupations an
individual might still be able to do, and whether it will be
necessary to make use of a vocational resource.’’ Id. at *6.
With respect to an exertional limitation on lifting, the Ruling
notes that ‘‘[t]he extent of erosion will depend on the extent
of the limitations’’ and that ‘‘an inability to lift TTT more than
1 or 2 pounds would erode the unskilled sedentary occupa-
tional base significantly.’’ Id. The Ruling also addresses
postural limitations, explaining that ‘‘[a] complete inability to
stoop would significantly erode the unskilled sedentary occu-
pational base and a finding that the individual is disabled
would usually apply, but restriction to occasional stooping
should, by itself, only minimally erode the unskilled occupa-
tional base of sedentary work.’’ Id. at *8. Additionally, a
Social Security Program Policy Statement observes that a
‘‘[s]ignificant limitation[ ] of reaching,’’ which is ‘‘required in
almost all jobs,’’ ‘‘may eliminate a large number of occupa-
tions a person could otherwise do’’ and a vocational specialist
may be needed to determine the effects of the limitation.
SSR 85–15, Capability to Do Other Work—The Medical–
Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments, 1985 WL 56857, at *7 (SSA
1985).
In light of this ruling and statement, it is clear that to
arrive at his RFC assessment for Butler, the ALJ failed to
properly consider the opinion of her treating physician, Dr.
Lightfoote, who repeatedly opined that she could not lift,
reach or stoop.4 The district court found, and the Commis-
4 As detailed earlier, Lightfoote’s myriad reports are replete with
references to Butler’s serious physical limitations. On October 17,
1995, Lightfoote stated that ‘‘when’’ Butler returns to duty, she
‘‘will not be able to do any lifting, bending or stooping.’’ JA 103.
On December 9, 1995 Lightfoote noted that Butler ‘‘should never
climb, bend or stoop.’’ Id. 176. On January 23, 1996 Lightfoote
stated that Butler was able to return to work subject to the
limitations he noted in December 1995. On July 9, 1996 Lightfoote
recommended that Butler ‘‘have some job modifications to enable
15
sioner agrees, that the ALJ rejected Lightfoote’s conclusion
that Butler was unable to stoop by referring to the (apparent-
ly) contrary opinions of other medical experts. JA 31–32;
see, e.g., id. 104, 106–07, 207. But the other medical opinions
on which the ALJ purportedly relied do not address Butler’s
ability to stoop. (The ALJ cited the views of doctors Asadi,
Press and Yan; Hall’s opinion, which did address Butler’s
ability to stoop, was not cited by the ALJ.) In his November
19, 1996 report Yan noted that Butler’s examination was
‘‘otherwise’’ within ‘‘normal limits,’’ after having stated that
Butler complained that she had disk disease over her lumbo-
sacral area, had severe pain which prevented her from get-
ting up easily, could not stand for too long and could not lift
heavy objects. Id. 106–07. Yan, however, did opine that
Butler’s disks appeared to be ‘‘within normal limits.’’ Id.
Asadi’s report acknowledged that Butler had a history of
lower back pain, but that ‘‘there is no limitation of movement
of [her] cervical spine.’’ Id. 185. Butler was referred to
Asadi, however, only for a second opinion on the diagnosis
and treatment of her headaches. The ALJ also noted Press’s
lumbar spine examination that revealed mild scoliosis but was
otherwise ‘‘negative.’’ Id. 104. It is not apparent to us how
these three one-time, generalized medical reports conflict
with Lightfoote’s continuous, specific opinion that Butler can-
not stoop on the job. The ALJ’s conclusionary attempt to
justify his RFC finding that Butler was capable of engaging
in a limited range of sedentary work inexplicitly cited Light-
foote’s opinion that Butler could not perform work that
required her to stoop. Id. 32, 176.
The same goes for Lightfoote’s conclusions regarding But-
ler’s inability to lift and reach. In concluding that Butler was
capable of performing work that requires lifting of no more
her to work with her impairment of low back pain.’’ Id. 126. On
July 16, 1996 Lightfoote stated that Butler ‘‘should consider cross-
training with Vocational Rehabilitation, so that she can get a job
that does not entail any lifting, bending, stooping or reaching.’’ Id.
125. And on March 11, 1997 Lightfoote concluded that Butler was
‘‘100% disabled from any gainful employment’’ because of her back
pain and migraine headaches. Id. 180.
16
than four pounds, the ALJ apparently relied on Butler’s
testimony that she can lift a half-gallon of milk (which,
according to the ALJ, weighs approximately four pounds)
‘‘with reasonable comfort.’’ Id. 60. In so finding, however,
he failed to explain away, or even acknowledge, Lightfoote’s
three specific opinions that Butler could not perform work
that required any lifting. Id. 125, 128, 188. The ALJ may
have discounted these opinions in view of Lightfoote’s earlier
notations indicating that Butler was capable of lifting up to 10
pounds. The ALJ, however, did not cite these opinions at all;
rather, he relied exclusively on Butler’s own testimony at the
hearing. Id. 32. But the ALJ does not tell us how Butler’s
occasional lifting a half-gallon of milk conflicts with Light-
foote’s opinion that Butler could not lift as part of her regular
and continuous work-activity. As to Butler’s second alleged
postural limitation, it appears that the ALJ ignored Light-
foote’s opinion that Butler could not perform work that
requires any reaching. Id. 125. Nowhere in the ALJ’s
opinion is reaching mentioned, and none of the other medical
opinions he references touches on it in the least.
In sum, we cannot discern from the record the ALJ’s basis
for rejecting Lightfoote’s opinions regarding these limitations
nor from his mere references to the other physicians’ reports.
The ALJ’s reasoning is not simply ‘‘spare’’—as the district
court described it—in crucial particulars it is missing. Nor
did he ‘‘note[ ] the contradictory evidence in the record, which
record supplie[d] the reason’’ for his decision. Williams v.
Shalala, 997 F.2d 1494, 1499 (D.C. Cir. 1993). This simply
will not do. ‘‘The judiciary can scarcely perform its assigned
review function, limited though it is, without some indication
not only of what evidence was credited, but also whether
other evidence was rejected rather than simply ignored.’’
Brown, 794 F.2d at 708.
The Commissioner contends that the ALJ must have inter-
preted Lightfoote’s opinion that Butler should never stoop to
mean that she should stoop ‘‘very little’’ or ‘‘only occasional-
ly.’’ Appellee’s Br. at 22. While this interpretation may have
some intuitive appeal, the ALJ did not articulate this view in
17
his decision5 and Lightfoote’s multiple opinions are not easily
susceptible of such an interpretation. Despite his hopeful
statements regarding Butler’s capacity to perform some gain-
ful activity, Lightfoote consistently opined that any job Butler
performed had to accommodate her inability to stoop. JA
103, 125, 126, 176, 180, 204. The Commissioner also directs
our attention to Hall’s RFC assessment, which found Butler
capable of lifting 10 pounds frequently and stooping occasion-
ally. Although Hall’s assessment conflicts with Lightfoote’s
opinions, the ALJ apparently did not rely on Hall’s assess-
ment as that assessment was not cited in the ALJ’s order.
Id. 31–32. And in view of Lightfoote’s consistent opinions to
the contrary, Hall’s report, without more, does not constitute
substantial evidence that Butler is capable of frequently
lifting 10 pounds and stooping occasionally.6 We are there-
fore at a loss to locate in the lengthy record substantial
evidence supporting the ALJ’s determination that Butler is
capable of lifting four pounds, reaching and occasionally
stooping on the job.
B. LIGHTFOOTE’S MEDICAL OPINIONS
Butler argues that the ALJ failed to properly evaluate
Lightfoote’s medical opinions. Lightfoote’s opinions, as those
of Butler’s treating physician, are entitled to ‘‘controlling
weight’’ if they are not inconsistent with other substantial
record evidence and are well-supported by medically accept-
able clinical and laboratory diagnostic techniques. 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). Indeed ‘‘when all of the
5 See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (‘‘[A] simple
but fundamental rule of administrative law TTT is to the effect that a
reviewing court, in dealing with a determination or judgment which
an administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by the
agency.’’).
6 We note that Hall prepared his RFC assessment by checking
boxes on a pre-printed administrative form and offered little or no
explanation for his choices.
18
factors are satisfied[ ]7 the adjudicator must adopt a treating
source’s medical opinion irrespective of any finding he or she
would have made in the absence of the medical opinion.’’
SSR 96–2p, Giving Controlling Weight to Treating Source
Medical Opinions, 1996 WL 374188, at *2 (SSA July 2, 1996).
As the regulations assure claimants, ‘‘[w]e will always give
good reasons in our notice of TTT decision for the weight we
give your treating source’s opinion.’’ 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2).
We have a ‘‘treating physician rule’’ of our own. ‘‘Because
a claimant’s treating physicians have great familiarity with
[her] condition, their reports must be accorded substantial
weight.’’ Williams, 997 F.2d at 1498 (internal quotation
omitted). A treating physician’s report is ‘‘binding on the
fact-finder unless contradicted by substantial evidence.’’ Id.
(internal quotation omitted). We thus require an ALJ ‘‘who
rejects the opinion of a treating physician [to] explain his
reasons for doing so.’’ Id. Here, however, the ALJ offered
little more than the bare statement that ‘‘the record is
consistent with claimant retaining a residual functional capac-
ity to perform the range of sedentary work notedTTTT’’ JA
32. The ALJ’s passing references to the other medical
opinions are insufficient to override the substantial weight
due Lightfoote’s opinion. Furthermore, Lightfoote’s opinions
were confirmed by the results of an MRI, a CT myelogram,
an EMG, an IME, and an electroneurodiagnostic study. We
thus cannot conclude, as did the district court, that ‘‘credible
medical opinions undermine Dr. Lightfoote’s opinion’’ or that
the ALJ’s ‘‘logic’’ can be understood ‘‘without difficulty.’’ Id.
19.
Relying on our decision in Williams, the Commissioner
argues that the ALJ’s acknowledgment of contrary evidence
alone supplies an adequate basis for his decision. This case is
7 The ALJ is to consider the following six factors when evaluating
a treating physician’s medical opinion: (1) length of the treating
relationship and frequency of examination; (2) nature and extent of
the treating relationship; (3) supportability; (4) consistency; (5)
specialization; and (6) other factors that tend to support or contra-
dict the medical opinion. 20 C.F.R. §§ 404.1527(d)(2)-(6),
416.927(d)(2)-(6).
19
not analogous to Williams, however, because the ALJ here
did not acknowledge the contradictory evidence in the record,
‘‘which record supplie[d] the reason’’ for rejecting the treating
physician’s opinion. 997 F.2d at 1499. Our decision in
Simms, in which we remanded to the Commissioner for the
ALJ to explain the weight he attached to one of the claimant’s
treating physicians’ opinions, supplies the more fitting ana-
logue. 877 F.2d at 1052–53. In Simms the ALJ offered no
reason for rejecting the claimant’s treating physician’s view in
favor of those of consulting physicians. Id. at 1052. We held
that upon remand, ‘‘the ALJ should explain what weight he
attaches to [the treating physician’s] conclusions, or if he
attaches none, his reason therefor.’’ Id. at 1053. We believe
we should impose the same directive here.
C. EVIDENCE OF PAIN
Butler asserts that the ALJ failed to properly assess her
credibility in rejecting her claim that she suffers disabling
back pain.8 We conclude that the ALJ’s analysis here suffers
from the same shortcoming that undermined his RFC assess-
ment and rejection of Lightfoote’s opinions; namely, he did
not properly consider Butler’s physical limitations. The ap-
plicable regulations prescribe a two-step process to determine
whether a claimant suffers from symptoms (including pain)
that affect her ability to perform basic work activities. 20
C.F.R. §§ 404.1529, 416.929. First, the claimant must adduce
‘‘medical signs or laboratory’’ findings evidencing a ‘‘medically
determinable impairment that could reasonably be expected
to produce’’ the alleged pain. Id. §§ 404.1529(a)-(b),
416.929(a)-(b); see also 42 U.S.C. §§ 423(a)(5)(A), 1382(H)(i).
The objective evidence must confirm the existence of an
impairment ‘‘reasonably expected to produce,’’ 20 C.F.R.
§§ 404.1529(b), 416.929(b), ‘‘the actual pain, in the amount
and degree, alleged by the claimant.’’ Craig, 76 F.3d at 594.
8 In her brief, Butler appeared to argue that the ALJ also failed
to assess her credibility in rejecting her allegations of pain caused
by her migraine headaches. Appellant’s Br. at 27. At oral argu-
ment, however, Butler’s counsel clarified that she challenges the
ALJ’s credibility determination only in relation to her back pain.
20
Once the claimant crosses this threshold, the second step
assesses the persistence and intensity of the claimant’s pain
as well as the extent to which it impairs her ability to work.
20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).
The latter evaluation entails not only the claimant’s state-
ments about her pain but also ‘‘all the available evidence,’’
including the claimant’s medical history, medical signs and
laboratory findings; objective medical evidence of pain; the
medical opinions of the claimant’s treating physician; and any
other evidence that bears on the severity of the pain. Id.
§§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); Craig, 76 F.3d at 594–
95. As to other evidence bearing on the severity of pain, the
regulations provide that because pain is ‘‘subjective and diffi-
cult to quantify,’’ the Commissioner takes account of ‘‘any
symptom-related functional limitations and restrictions’’ re-
ported by the claimant and her treating physician ‘‘which can
reasonably be accepted as consistent with the objective medi-
cal evidence and other evidence.’’ 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3). Factors the Commissioner
considers as relevant to assessing a claimant’s pain are: the
claimant’s daily activities; the ‘‘location, duration, frequency,
and intensity of’’ the claimant’s pain; ‘‘precipitating and
aggravating factors’’; ‘‘the type, dosage, effectiveness, and
side effects of any medication’’ for pain relief; treatment the
claimant receives or has received, other than medication, for
pain relief; ‘‘any measures’’ the claimant uses to relieve pain;
and ‘‘other factors concerning [the claimant’s] functional limi-
tations and restrictions due to pain.’’ Id. §§ 404.1529(c)(3)(i)-
(vii), 416.929(c)(3)(i)-(vii).
In considering the extent to which the claimant’s pain
interferes with her capacity to engage in basic work activities,
the regulations provide that the ALJ evaluates the claimant’s
‘‘statement in relation to the objective medical evidence and
other evidence,’’ id. §§ 404.1529(c)(4), 416.929(c)(4), including
‘‘whether there are any inconsistencies in the evidence and
the extent to which there are any conflicts between your
statements and the rest of the evidence, including your
medical history, the medical signs and laboratory findings,
and statements by your treating or examining physician or
21
psychologist or other persons about how your symptoms
affect you.’’ Id. And a claimant’s allegations of pain will be
‘‘determined to diminish [her] capacity for basic work activi-
ties’’ only insofar as her ‘‘alleged functional limitations and
restrictions due to TTT pain TTT can reasonably be accepted as
consistent with the objective medical evidence and other
evidence.’’ Id.
Social Security Ruling 96–7p supplies further guidance to
the ALJ on how to evaluate pain. Once an underlying
impairment that could reasonably be expected to generate the
alleged pain has been established, the intensity, persistence
and limiting effects of the pain must be evaluated ‘‘to deter-
mine the extent to which the symptoms affect the individual’s
ability to do basic work activities.’’ SSR 96–7p, Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of
An Individual’s Statements, 1996 WL 374186, at *1 (SSA
July 2, 1996). This determination in turn requires ‘‘the
adjudicator to make a finding about the credibility of the
individual’s statements about the symptom(s) and its function-
al effects.’’ Id. In determining the individual’s credibility,
the ALJ ‘‘must consider the entire case record’’ and may not
disregard the individual’s statements about the intensity and
persistence of her pain ‘‘solely because they are not substanti-
ated by objective medical evidence.’’ Id. The ALJ’s decision
‘‘must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual’s statements and reasons for that weight.’’ Id. at
*2.
Applying step one (and perhaps step two) of the analysis,
the ALJ concluded that ‘‘there is no evidence of any underly-
ing conditions which could be producing pain of the intensity
which [Butler] has alleged.’’ JA 33. His conclusion that ‘‘no
evidence’’ supports her allegations once again reflects his
failure to properly evaluate Lightfoote’s opinions. Moreover,
Lightfoote is not alone in concluding that Butler suffers from
lumbar disk herniations and lumbosacral facet syndrome—
diagnoses which the ALJ appears to have credited. Id. 82,
22
104, 116, 132. Pavot’s electroneurodiagnostic study diag-
nosed lumbar facet syndrome, while Press’s lumbar spine
examination revealed scoliosis and atherosclerosis. Bentt
also noted that Butler’s MRI and CT myelogram indicated
‘‘nerve root pathology at both L4–5 and L5–S1.’’ Id. 132.
And even Hall’s RFC assessment lists Butler’s primary diag-
nosis as herniated disk disease. Id. 82. The ALJ may have
thought that these diagnosed conditions could not produce the
degree of pain Butler claimed to suffer but such a conclusion
would be near impossible to understand without some expla-
nation, if for no other reason than that the diagnoses are
consistently accompanied by descriptions of incapacitating
pain. See, e.g., Id. 132, 148–49, 203. The ALJ may have
rejected these evaluations by inferring from Yan’s and
Press’s reports that Butler’s condition could not produce
severe pain; however, he has not articulated this position and,
given all of the evidence to the contrary, the record cannot do
it for him.
D. VOCATIONAL EXPERT’S TESTIMONY
Butler asserts that at step five the ALJ improperly relied
on the vocational expert’s testimony to establish that she is
capable of performing ‘‘other work.’’ We agree. If the ALJ
looks to a vocational expert in assessing a claimant’s ability to
do other work, the ALJ ‘‘must accurately describe the claim-
ant’s physical impairments in any question posed to the
expert.’’ Simms, 877 F.2d at 1050; see also Williams, 997
F.2d at 1499; Diablo, 627 F.2d at 283. Deficiencies in the
ALJ’s description of the claimant’s condition ‘‘undermine the
foundation for the expert’s ultimate conclusion that there are
alternative jobs’’ that the claimant is capable of performing.
Simms, 877 F.2d at 1053; see also Williams, 997 F.2d at
1499.
We cannot say that the hypothetical question the ALJ
posed to the vocational expert accurately reflected Butler’s
physical limitations. The ALJ asked whether work exists in
the economy for someone of ‘‘claimant’s age, education, and
work background’’ who can perform a limited range of seden-
23
tary work. JA 68. The ALJ qualified the hypothetical by
adding that the work available must allow her to sit or stand
at her own option, not require her to lift more than four
pounds and involve only minimal stress. The vocational
expert answered affirmatively, concluding that such a person
would be able to find gainful employment in 20 per cent of the
200 sedentary, unskilled occupations significantly represented
in the economy that the Commissioner has ‘‘administratively
noticed,’’ and offered as examples of such jobs, film develop-
ment assistant, visual inspector and bindery worker. Id. 68–
69.
In Simms, we found the hypothetical question the ALJ
posed to the vocational expert fatally defective because it
omitted significant aspects of the claimant’s condition. 877
F.2d at 1053. We explained there that the ALJ failed to
apprise the expert that the claimant complained of pain; that
the claimant’s medication made him drowsy; that the claim-
ant might have had to rely on a medical device that compro-
mised the use of his remaining arm; and that the claimant
had a limited ability to hold and carry the objects he could
lift. Id. We therefore remanded the case to the Secretary9
‘‘to rule anew (at step five) on [the claimant’s] ability to
perform ‘other work.’ ’’ Id. We do likewise here because the
ALJ’s hypothetical question failed to include Butler’s physical
limitations regarding lifting, reaching and stooping. Id.
* * *
For the foregoing reasons, we reverse the judgment of the
district court and remand the case to that court with instruc-
tions to remand to the Commissioner for further proceedings
consistent with this opinion.
So ordered.
9The duties of the Secretary of the Department of Health and
Human Services in social security cases were transferred to the
SSA Commissioner as of March 31, 1995. See 42 U.S.C. §§ 901,
902.