United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3194
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Gary Collins, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Michael J. Astrue, Commissioner
of Social Security, *
*
Appellee. *
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Submitted: April 12, 2011
Filed: August 9, 2011
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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Gary Collins appeals the district court’s order, which affirmed the decision of
the Commissioner of the Social Security Administration (Commissioner) denying
Collins’ application for disability insurance benefits (DIB) under Title II of the Social
Security Act. See 42 U.S.C. § 401 et seq. We reverse the district court’s order and
instruct the district court to remand the case to the Commissioner for further
proceedings consistent with this opinion.
I.
On October 30, 2006, Collins applied for DIB benefits.1 After his application
was denied both initially and upon reconsideration, Collins requested a hearing before
an Administrative Law Judge (ALJ).
At the hearing, the ALJ heard testimony from Collins and a vocational expert.
In his written decision, the ALJ found that Collins had not engaged in substantial
gainful employment since his alleged disability onset date; Collins suffers from
untreated sleep apnea, chronic lumbar strain with myofacial pain, post-operative
biceps tendon pain, osteoarthritis, fibromyalgia, and hypertension but does not have
an impairment or combination of impairments listed in or medically equal to one listed
in Appendix 1, Subpart P, Regulations 4; Collins’ subjective allegations of pain and
limitation were not fully credible; Collins retains the residual functional capacity
(RFC) to perform sedentary work activity; Collins is unable to perform his past
relevant work; and Collins possesses skills transferable to sedentary jobs which exist
in significant numbers in the national economy. The ALJ therefore concluded that
Collins was not under a disability at any time from the alleged onset date through the
date of the decision.
The Appeals Council declined to hear the case, making the ALJ’s decision the
final decision of the Commissioner. The district court affirmed the Commissioner’s
final decision. Collins now appeals, arguing that the ALJ committed legal error by
failing to correctly apply the requisite five-step sequential evaluation process.2
1
Although Collins alleged in his application an onset date for his disability of
April 2004, at oral argument his attorney stated that “probably a better onset date is
March 2006.” Either date falls within the period of Collins’ Social Security disability
insurance coverage.
2
The five step sequential evaluation in 20 C.F.R. § 404.1520(a)(4) reads:
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II.
“When considering whether the ALJ properly denied social security benefits,
we determine whether the decision is based on legal error, and whether the findings
of fact are supported by substantial evidence in the record as a whole.” Lowe v.
Apfel, 226 F.3d 969, 971 (8th Cir. 2000). Legal error may be an error of procedure,
Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003), the use of erroneous
legal standards, or an incorrect application of the law, Nettles v. Schweiker, 714 F.2d
(i) At the first step, we consider your work activity, if any. If you are
doing substantial gainful activity, we will find that you are not disabled.
...
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable
physical or mental impairment that meets the duration requirement in
§ 404.1509, or a combination of impairments that is severe and meets the
duration requirement, we will find that you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of
our listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your residual
functional capacity and your past relevant work. If you can still do your
past relevant work, we will find that you are not disabled. . . .
(v)
At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see
if you can make an adjustment to other work. If you can make an
adjustment to other work, we will find that you are not disabled. If you
cannot make an adjustment to other work, we will find that you are
disabled. . . .
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833, 836 (8th Cir. 1983). “Whether the ALJ based his decision on a legal error is a
question we review de novo.” Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008).
An ALJ commits legal error if the ALJ fails to correctly follow the sequential
evaluation process. See Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir. 2005)
(stating that the Commissioner is required to follow the five-step sequential evaluation
process in assessing disability claims). At step five in the process, the ALJ must
determine if the claimant can make an adjustment to other work. See 20 C.F.R. §
404.1520(a)(4)(v). Where a claimant does not suffer from nonexertional impairments
or where such impairments “do not diminish or significantly limit the claimant’s
residual functional capacity to perform the full range of Guideline-listed activities,”
the Commissioner may conduct this inquiry by consulting the Medical-Vocational
Guidelines (the Grids). Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005) (quotation
omitted). However, “where the claimant suffers from a nonexertional impairment
such as pain, the ALJ must obtain the opinion of a vocational expert instead of relying
on the Medical-Vocational Guidelines.” Baker v. Barnhart, 457 F.3d 882, 894 (8th
Cir. 2006). “Testimony from a vocational expert is substantial evidence only when
the testimony is based on a correctly phrased hypothetical question that captures the
concrete consequences of a claimant’s deficiencies.” Cox v. Astrue, 495 F.3d 614,
620 (8th Cir. 2007).
III.
In this case, the ALJ neither consulted the Grids nor posed a hypothetical
question to the vocational expert. Because the ALJ apparently discredited Collins’
subjective complaints and concluded that Collins possessed the RFC to perform the
full range of sedentary work activity, the ALJ presumably could have resolved the
claim by reference to the Grids. However, the ALJ’s written decision does not
reference the Grids, let alone indicate that the Grids were consulted. If, on the other
hand, the ALJ credited Collins’ subjective complaints of pain and limitation, the ALJ
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was required to obtain the opinion of a vocational expert by posing a hypothetical
question that contained an accurate statement of Collins’ subjective limitations. Cox,
495 F.3d at 620. Because the ALJ’s questioning of the vocational expert did not
include such a hypothetical question, the Commissioner’s decision is not supported
by the vocational expert’s opinion.
The Commissioner concedes that the ALJ neither cited the Grids nor posed a
hypothetical question to the vocational expert. The Commissioner nonetheless argues
the ALJ did not commit reversible error at step five because the Grids would have
directed a finding of no disability had the ALJ consulted them. Thus, the
Commissioner contends the ALJ’s failure to reference the Grids had no bearing on the
outcome of the case. Further, characterizing the lack of reference to the Grids as a
“deficiency in opinion writing,” the Commissioner urges us to find that the ALJ
implicitly referenced the Grids because the ALJ’s findings and questions posed to the
vocational expert exactly track the appropriate analysis under the Grids. We reject
this argument. Although it is true that “an arguable deficiency in opinion-writing
technique does not require us to set aside an administrative finding when that
deficiency had no bearing on the outcome,” Hepp v. Astrue, 511 F.3d 798, 806 (8th
Cir. 2008) (internal quotations omitted), here the failure of the ALJ to follow the
mandated procedure is more than a mere oversight in opinion writing. The ALJ was
required to follow one of two paths at step five of the sequential process, and there is
no record indicating that the ALJ followed either path. The reviewing court will not
speculate on what basis the Commissioner denied a social security disability claim.
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IV.
Accordingly, we reverse the district court’s order affirming the Commissioner’s
decision and instruct the district court to remand the case to the Commissioner for
further proceedings consistent with this opinion.3
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3
Because we reverse the district court’s decision and remand to the
Commissioner for further proceedings, we do not reach Collins’ argument that the
ALJ’s decision is not supported by substantial evidence on the record as a whole.
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