UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10610
WILLIE L. BOYD,
Petitioner - Appellant,
VERSUS
KENNETH S. APFEL, Commissioner of Social Security,
Respondent - Appellee.
Appeal from the United States District Court
For the Northern District of Texas
January 19, 2001
Before WIENER and STEWART, Circuit Judges; and ROSENTHAL, District
Judge.1
LEE H. ROSENTHAL, District Judge.
Willie L. Boyd appeals the district court’s judgment
affirming the Commissioner’s decision to deny him disability
benefits. Boyd asserts that the Administrative Law Judge (“ALJ”)
applied an incorrect legal standard in assessing the extent of
Boyd’s ability to work, and that the ALJ’s decision was unsupported
by the evidence. This court finds that the ALJ did apply the
1
District Judge of the Southern District of Texas, sitting
by designation.
correct legal standard, but that the
evidence was not sufficient to satisfy the Commissioner’s burden to
show that despite his impairments, Boyd was able to perform
available work. This court vacates the ALJ’s ruling and remands
this case to the Commission for further consideration.
I. BACKGROUND
Willie L. Boyd was born in 1956 and attended school
through the tenth grade. He later obtained a GED. Boyd worked as
a welder for eleven years, until April 1994, when he lost his job
after missing thirty of his last ninety days of work due to illness.
In April 1994, Boyd received hospital treatment for complaints of
pain and high blood pressure. He was given a prescription for
antidepressant medication and instructed to decrease his alcohol
consumption. He briefly attempted to work as a general laborer in
June 1994 and has not worked since. Boyd asserts that he has been
completely disabled since that date.
In October 1994, Boyd returned to the hospital for another
examination. On that visit, he was diagnosed with liver damage and
was again instructed to stop drinking. On December 30, 1994, Boyd
filed for disability benefits under the Social Security Act,
alleging that the combined effects of hepatitis, hypertension,
dizziness, leg and back pain, and fatigue made him unable to work.
In February 1995, Boyd was again hospitalized. Doctors
diagnosed him as suffering from diabetic ketoacidosis and mild to
2
moderate pancreatitis. Doctors removed his gall bladder through
laparoscopic surgery. Boyd’s initial claim for disability benefits
was denied on March 27, 1995. He requested a hearing before an
Administrative Law Judge, but his illnesses delayed the hearing
until June 1996.
In October 1995, Boyd’s treating internist referred him
to a psychiatric clinic. In January 1996, Dr. Juanaelena Garcia
examined Boyd. Dr. Garcia’s report of the January 1996 examination
described symptoms of weekly anxiety attacks, which she diagnosed
as the result of “[m]ajor depressive disorder, single episode,
moderate,” and an adjustment disorder involving anxiety and
depression, for which she prescribed an antidepressant, Prozac. Dr.
Garcia determined that Boyd had a Global Assessment of Functioning
(“GAF”)2 score of 60, a score reflecting “moderate symptoms (e.g.
flat affect and circumstantial speech, occasional panic attacks) OR
any moderate difficulty in social, occupational, or school function
(e.g., few friends, conflicts with peers or co-workers).” Dr.
Garcia also observed that Boyd was alcohol-dependent and told him
that the antidepressant medication would not be effective unless he
stopped drinking. On June 11, 1996, during one of Boyd’s return
visits, Dr. Garcia increased Boyd’s Prozac dose to treat a relapse
2
GAF is a standard measurement of an individual’s overall
functioning level “with respect only to psychological, social, and
occupational functioning.” AMERICAN PSYCHIATRIC ASS’N DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed. 1994)(DSM-IV).
3
of depressive symptoms. Dr. Garcia’s notes of the June 1996
examination state her opinion that Boyd would be unable to work for
a year and that he had a “poor prognosis.” In June 1996, Boyd was
hospitalized for a complaint of chest pain and shortness of breath
and discharged with medication to treat his hypertension.
The ALJ held a hearing on Boyd’s disability claim on June
18, 1996. The ALJ heard testimony from Boyd; his wife, Diana Boyd;
a medical expert, Dr. William Daily; and a vocational expert, Susan
Brooks. The ALJ had Dr. Garcia’s records relating to Boyd, but
heard no testimony from Dr. Garcia. The only medical testimony at
the hearing pertained to Boyd’s “exertional” impairments.3
At the hearing, Boyd testified that he suffered from liver
problems, diabetes, high blood pressure, pain, panic attacks,
depression, suicidal thoughts, and hallucinations. Boyd testified
that he could lift ten pounds and stand for fifteen to twenty
minutes. Although Boyd had completed the tenth grade and later
obtained a GED, his spelling and arithmetic skills were
3
According to Social Security Administration regulations,
“[l]imitations are classified as exertional if they affect your
ability to meet the strength demands of jobs. The classification of
a limitation as exertional is related to the United States
Department of Labor's classification of jobs by various exertional
levels (sedentary, light, medium, heavy, and very heavy) in terms
of the strength demands for sitting, standing, walking, lifting,
carrying, pushing, and pulling . . . Limitations or restrictions
which affect your ability to meet the demands of jobs other than
the strength demands, that is, demands other than sitting,
standing, walking, lifting, carrying, pushing or pulling, are
considered nonexertional.” 20 C.F.R. § 404.1569a.
4
significantly below high school level. Boyd testified that he had
been fired from his last job as a certified Class A welder in April
1994, after missing a total one month of work time out of the
previous three months. He testified that he tried to return to work
as a general laborer in June 1994, but again missed many days of
work and was unable to continue.
Diane Boyd testified that her husband suffered from
delusions, including seeing people in the room who were not there.
She also testified that he was withdrawn, had little social or
familial interaction, and was depressed. Diane Boyd testified that
her husband’s condition had worsened to such an extent that she had
spoken with her sister about having Boyd committed to a mental
institution.
The Commissioner called Dr. Daily, a specialist in
internal medicine, to testify. Dr. Daily did not review the
psychiatric records or provide any information as to Boyd’s
nonexertional impairments. Dr. Daily testified that the medical
records showed that Boyd suffered from controllable hypertension;
diabetes mellitus, in temporary complete remission; chronic
hepatitis B and hepatitis C infections; chest pain; pain in his
extremities possibly caused by diabetic neuropathy; and cirrhosis.
Dr. Daily testified that the combination of Boyd’s physical problems
had totally incapacitated him on an intermittent basis since April
1994.
5
Susan Brooks, the vocational expert, testified that Boyd’s
previous work as a welder was classified as medium, skilled labor,
and that his work as a laborer was classified as medium, unskilled
labor. The ALJ asked Brooks a series of hypothetical questions
about the kinds of work a person with assumed impairments would be
able to perform:
Q All right. Assume that I find that he can
do a full range, that a person 40 years of
age, with that past work history, tenth
grade education, can do a full range of
light work?
A I’m sorry, you said a tenth grade
education?
. . .
Q Tenth grade education, can do a full range
of light work? I know I can take the
grids on that, but I want to ask you if
you could assume that I find that this man
has such disturbance to the extent that
his maybe, his concentration or memory is
limited, so that if he does work, he’s got
to work in a simple, one or two-step-type
jobs. I don’t know if his skills or like
[sic] transferable to the simple job like
that, or just any kind of a job, where he
does not have to remember complex
instructions, but can understand simple
instructions, and where he can carry out,
does not have to - can stay on task a full
eight hours, but he does not have to think
about things too much, just repetitive-
type work?
A In my opinion, it’s kind of a
misconception about the one to two-step
jobs, that most of the jobs, they have
several steps. That is an unskilled
level. They’re not complex steps.
6
Q Okay. No that’s the flush out [sic].
A So, at an unskilled level, I think that’s
primary [sic] what you’re looking at, is
jobs that are not complex, that require
less than 30 days of training.
(Hearing Transcript, pp. 38-40).
Based on this hypothetical question, Brooks testified that
Boyd would be able to work as a production line welder, as a coin
collector, or in hardware assembly. Brooks classified each of these
occupations as light, unskilled work that occurred in significant
numbers in the local and national economies.
After the hearing ended, the ALJ ordered Boyd examined
by a consulting psychologist. Boyd was examined by Diana Garrison,
M.A., under the supervision of Dr. Joanna Ellis, and by Dr. S.S.
Pepermintwala, a psychiatrist at Parkland Hospital. The results of
their evaluations were a Psychological Report prepared by Diana
Garrison; a Medical Assessment of Ability to Do Work-Related
Activities prepared by Dr. Ellis; and an Affective Disorders Form
and a Severity of Impairment form completed by Dr. Pepermintwala.
In her Psychological Report, Garrison diagnosed Boyd as
suffering from psychotic disorder, chronic alcohol dependence, and
an alcohol-related cognitive disorder. Garrison administered a
number of tests to measure intellectual and other functioning
levels.4 She assessed Boyd’s I.Q. as 76, within the borderline
4
The tests Garrison and Ellis administered included an
I.Q. test, a variety of memory tests, and a “trail-making” test in
7
intellectual functioning range.5 Under the “Activities of Daily
Living” section of the Psychological Report, Garrison reported,
based on Boyd’s representations, that Boyd could tend to basic self-
care tasks, but was unable to drive due to “panic attacks” and could
not manage his own finances. Garrison reported that Boyd had a
tendency to avoid others and that his “Concentration, Persistence,
[and] Pace” were good.6 Garrison concluded that Boyd had a GAF of
50. A GAF score of 41 to 50 is classified as reflecting “serious
symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to
keep a job).”7
Dr. Ellis assessed Boyd’s ability to perform work-related
mental tasks. In her report, Dr. Ellis stated that Boyd “exhibits
few adaptive coping skills or adequate social skills” and that his
which the subject is asked to connect numbers on a page.
5
The standardized tests resulted in a verbal IQ score of
75, a performance IQ score of 79, and a full scale IQ score of 76,
all within the “borderline intellectual functioning” range of 71-
84. DSM-IV, p. 45.
6
“Concentration, persistence and pace” refers to “the
ability to sustain focused attention sufficiently long to permit
the timely completion of tasks commonly found in work settings . .
. In work evaluations, concentration, persistence, and pace are
assessed through such tasks as filing index cards, locating
telephone numbers, or disassembling and reassembling objects.” 20
C.F.R. pt. 220, app. 1.
7
DSM-IV, p. 32.
8
ability to deal with work stresses and function independently was
“poor/none.” These limitations resulted in “the need for close
supervision” and “considerable trepidation/anxiety as concerns
taking on job responsibilities,” as well as an “inclination [] to
avoid situations in which he is expected to interact with the
public.”
In his assessments, Dr. Pepermintwala, an examining
psychiatrist, concluded that Boyd had “major depressive Disorder
with Psychotic features,” with “slight” restriction of activities
in daily living; “marked” difficulties in maintaining social
functioning; and “frequent” deficiencies in concentration,
persistence, or pace.
The ALJ issued his decision denying Boyd benefits on
January 14, 1997. The ALJ found that Boyd’s physical, exertional
impairments did not limit his ability to sit, stand, or lift, and
did not preclude him from performing a full range of light work.
To analyze Boyd’s nonexertional impairments, the ALJ completed a
Psychiatric Review Technique Form (“PRT”), in which he found that
Boyd had an affective disorder, but that it did not meet or equal
the impairments listed in listing 12.04, 20 C.F.R. pt. 404, subpt.
P, app. 1.8 The ALJ’s entries on the PRT form specifically stated
8
Listing 12.04 addresses “affective disorders” and
provides that a claimant is disabled if he has a sufficiently
severe “disturbance of mood, accompanied by a full or partial manic
or depressive syndrome.” The listing states that “[t]he required
level of severity for these disorders is met when the requirements
9
in both [subsections] A and B are satisfied.” These subsections
are as follows:
A. Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the
following:
a. Anhedonia or pervasive loss of interest in almost
all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions or paranoid thinking; or
2. Manic syndrome characterized by at least three of the
following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractability; or
g. Involvement in activities that have a high
probability of painful consequences which are not
recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods
manifested by the full symptomatic picture of both manic
and depressive syndromes (and currently characterized by
either or both syndromes); AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace
resulting in frequent failure to complete tasks in a
timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in
work or work-like settings which cause the individual to
withdraw from that situation or to experience
exacerbation of signs and symptoms (which may include
deterioration of adaptive behaviors.
10
that Boyd had “moderate restrictions of [activities of] daily
living, moderate difficulties in maintain[ing] social functioning,
with never any deficiencies of concentration, persistence or pace
and only once or twice having episodes of deterioration or
decompensation in work or work-like activities.”9 The ALJ concluded
that while these nonexertional impairments were not “non severe,”
they did not meet or equal the requirements of listing 12.04. The
ALJ proceeded to apply a “residual functional limitation
assessment,” called for when a severe impairment is present but not
in a degree that meets or equals a listed impairment.10 The ALJ
concluded that Boyd could not perform his past work as a welder and
construction worker. However, the ALJ found that Boyd had a
residual functional capacity for a full range of light work, not
reduced by his nonexertional limitations.
20 C.F.R. pt. 404, subpt. P, app. 1, listing 12.04.
9
“Deterioration or decompensation” in work or work-like
settings refers to “repeated failure to adapt to stressful
circumstances which cause the individual either to withdraw from
that situation or to experience exacerbation of signs and symptoms
(i.e., decompensation) with an accompanying difficulty in
maintaining activities of daily living, social relationships,
and/or maintaining concentration, persistence, or pace (i.e.,
deterioration which may include deterioration of adaptive
behaviors).” 20 C.F.R. pt. 220, app. 1.
10
“Residual functional capacity” refers to the ability to
perform work despite physical or mental impairments. 20 C.F.R. §
404.1545a.
11
In denying disability benefits, the ALJ concluded that
Boyd was able to work in employment positions existing in
significant numbers in the national economy. The ALJ based this
ruling on the testimony of the vocational expert, given in response
to hypothetical questions intended to account for Boyd’s abilities
and impairments.
The Appeals Council denied review on July 17, 1998. Boyd
timely appealed the denial of benefits to the District Court for the
Northern District of Texas under 42 U.S.C. § 405(g). The district
court referred Boyd’s case to a magistrate judge. The magistrate
judge found that substantial evidence supported the findings of the
ALJ and that the ALJ did not apply an improper legal standard. The
district court adopted the findings and conclusions of the
magistrate judge, without comment.
Boyd now appeals the district judge’s judgment affirming
the Commissioner’s decision to deny benefits, arguing that the ALJ
applied an improper legal standard and that there was no substantial
evidence to support the ALJ’s decision to deny benefits.
II. THE STANDARD OF REVIEW
“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was
a party . . . may obtain a review of such decision by a civil
action” in a district court. 42 U.S.C. § 405(g). Judicial review
of the Commissioner’s decision to deny benefits
12
is limited to determining whether that decision
is supported by substantial evidence and
whether the proper legal standards are applied.
Substantial evidence is such relevant evidence
as a responsible mind might accept to support
a conclusion. It is more than a mere scintilla
and less than a preponderance. A finding of no
substantial evidence is appropriate only if no
credible evidentiary choices or medical
findings support the decision. In applying this
standard, we may not re-weigh the evidence or
substitute our judgment for that of the
Commissioner.
Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (quoting Ripley
v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) and citing Johnson v.
Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988)) (footnotes and
quotation marks omitted).
This court must affirm the Commissioner’s determination
unless this court finds that 1) the ALJ applied an incorrect legal
standard, or 2) that the ALJ’s determination is not supported by
substantial evidence. Boyd asserts that both defects are present.
The Commissioner defends the denial of benefits and asserts that
even if the ALJ erred, remand would not lead to a different result.
III. ANALYSIS
A. The Legal Standard Applied by the ALJ
Where a claimant attempts to show an “inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . can be
expected to last for a continuous period of not less than 12
months”, 42 U.S.C. § 423(d)(1)(A), the ALJ must follow a “five-step
13
sequential process, the first four steps of which place the burden
on the claimant.” Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir.
1991). The five steps are:
(1) An individual who is working and engaging
in substantial gainful activity will not be
found disabled regardless of medical findings.
(2) An individual who does not have a “severe
impairment” will not be found to be disabled.
(3) An individual who meets or equals a listed
impairment in [20 C.F.R. pt. 404, subpt. P,
app. 1] will be considered disabled without the
consideration of vocational factors.
(4) If an individual is capable of performing
the work he has done in the past, a finding of
“not disabled” will be made.
(5) If an individual's impairment precludes him
from performing his past work, other factors
including age, education, past work experience,
and residual functional capacity must be
considered to determine if other work can be
performed.
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Villa
v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990)); see also 20
C.F.R. § 404.1520 (b)-(e).
In the fifth step, the burden is on the Commissioner to
show that the claimant can perform relevant work. “If the
[Commissioner] meets this burden, the claimant must then prove that
he cannot in fact perform the work suggested.” Muse, 925 F.2d at
789. “‘A finding that a claimant is disabled or is not disabled at
any point in the five-step review is conclusive and terminates the
14
analysis.’” Greenspan, 38 F.3d at 236 (quoting Lovelace v. Bowen,
813 F.2d 55, 58 (5th Cir. 1987)).
The Commissioner has instituted a corollary procedure for
determining the merits of mental disability claims. 20 C.F.R. §
404.1520a. Under the procedure in effect at the time of Boyd’s
hearing before the ALJ,11 the examiner of the mental disability
claim (in this case, the ALJ) must first “record the pertinent
signs, symptoms, findings, functional limitations and effects of
treatment contained in [the] case record,” in order to determine if
a mental impairment exists. 20 C.F.R. § 404.1520a(b)(1). If an
impairment is found, the ALJ must determine whether certain medical
findings relevant to a claimant’s ability to work are present or
absent. 20 C.F.R. § 404.1520a(b)(2). The ALJ must then evaluate
the degree of functional loss resulting from the impairment in four
separate areas deemed essential for work. 20 C.F.R. §
404.1520a(b)(3). If the degree of functional loss falls below a
specified level in each of the four areas, the ALJ must find the
impairment “not severe,” which generally concludes the analysis and
terminates the proceedings. 20 C.F.R. § 404.1520a(c)(1). If the
mental impairment is “severe” under 20 C.F.R. § 404.1520a(c)(1), the
11
Since Boyd’s hearing, C.F.R. § 404.1520a has been revised
and amended. The revisions and amendments became effective on
September 20, 2000. 65 Fed. Reg. 50,746 (August 21, 2000). The
citations in this paragraph are to the regulations as they existed
from 1996 through 1998, when Boyd’s case was being heard and
considered by the ALJ and the Commissioner.
15
ALJ must then determine if it meets or equals a listed mental
disorder under 20 C.F.R. pt. 404, subpt. P, app. 1, 12.00-12.09. 20
C.F.R. § 404.1520a(c)(2). If the impairment is severe, but does not
reach the level of a listed disorder, then the ALJ must conduct a
residual functional capacity assessment. 20 C.F.R. §
404.1520a(c)(3). The ALJ must also append a “standard document
outlining the steps of [the § 4014.1520a] procedure” to the
decision. 20 C.F.R. § 404.1520a(d).
Boyd argues that the ALJ did not apply the proper legal
standard in evaluating his claim. Boyd appears to contend that
Finding Eight, in which the ALJ states that “[t]he claimant’s
residual functional capacity for the full range of light work is not
reduced by nonexertional limitations (Tr. 38),” conflicts with
language elsewhere in the ALJ’s findings indicating that Boyd’s
impairments were severe.12 Boyd also appears to contend that the
12
In his summary judgment brief in the district court
proceeding, Boyd argued that Finding Eight was inconsistent with
Finding Four. The magistrate judge found no conflict between the
two findings. In Finding Four, the ALJ stated:
Accordingly, the undersigned has completed and attached hereto
a Psychiatric Review Technique form based on Listings 12.04
and the “B” criteria of functional limitations reflecting that
claimant has moderate restrictions of [activities of] daily
living, moderate difficulties in maintain [sic] social
functioning, with never any deficiencies of concentration,
persistence or pace and only once or twice having episodes of
deterioration or decompensation in work or work-like
activities.
The magistrate judge found that even if the limitations described
in Finding Four were not “non severe,” the ALJ clearly stated in
16
ALJ did not proceed beyond the finding that Boyd’s impairments did
not meet the requirements of listings 12.00-12.09, and did not
conduct an analysis of what kinds of work Boyd would be able to
perform.
In paragraph three of his decision, the ALJ stated that
Boyd “has a combination of impairments that is severe.” The ALJ
considered whether the combination of impairments met or equaled
impairments listed in 12.00-12.09, and found that they did not. The
ALJ then performed a residual functional capacity assessment,
concluding that while Boyd could not continue to perform his past
work, Boyd had the residual functional capacity to perform jobs
available in significant numbers in the national economy.
The ALJ’s finding that Boyd had “a combination of
impairments that is severe” did not foreclose a finding that Boyd
had a residual functional capacity to perform a range of light work,
and is not necessarily inconsistent with that finding. Even if the
degree of impairment is “severe,” the regulations require an
assessment of whether the impairment meets or exceeds the criteria
of listed disorders in 12.00-12.09. 20 C.F.R. § 404.1520a(c)(2);
Duncan v. Apfel, 2000 WL 1839196 (7th Cir. 2000)(noting ALJ’s
finding that although claimant’s impairments were “severe,” the
Finding Four that the limitations failed to satisfy listing 12.04,
which made Findings Four and Eight not inconsistent. (Findings,
Conclusions, and Recommendations of Magistrate Judge, p. 13). This
court finds that the magistrate judge’s analysis of a lack of
inconsistency is supported by the evidence.
17
impairments did not satisfy the requirements of listing 12.04);
Wittler v. Shalala, 46 F.3d 1130 (4th Cir. 1995) (same). The ALJ
found that Boyd’s impairments did not satisfy these criteria. The
ALJ properly proceeded to conduct the residual capacity analysis.
The analytical procedure and legal standard that the ALJ followed
corresponds to the procedure and standard set out in 20 C.F.R. §
404.1520a. This court finds no error.
B. The Sufficiency of the Evidence
Boyd also contends that substantial evidence does not
support the ALJ’s conclusion that Boyd’s capacity for light work was
not reduced by his nonexertional limitations. Boyd raises two
specific challenges: 1) that the hypothetical question the ALJ posed
to the vocational expert did not accurately reflect Boyd’s mental
impairments, and 2) that uncontradicted evidence showed that Boyd’s
mental impairments limited his abilities to concentrate, follow
instructions, deal with others, and function independently, all
necessary abilities for work, to a degree that met or exceeded the
listings. Boyd notes that the medical testimony at the hearing
related only to his physical impairments, not his mental
impairments, and that much of the evidence as to the extent and
severity of his mental impairments was generated after the hearing.
The government acknowledges that the ALJ relied on the
testimony of the vocational expert in determining that Boyd had the
capacity to perform a range of jobs existing in significant numbers
18
in the national economy. The vocational expert offered her
testimony in response to the ALJ’s hypothetical question. This
court has previously considered the question of under what
circumstances a vocational expert’s answer to a hypothetical
question posed by an ALJ can provide substantial evidence supporting
a denial of benefits. In Bowling v. Shalala, 36 F.3d 431 (5th Cir.
1994), this court stated:
Unless the hypothetical question posed to the
vocational expert by the ALJ can be said to
incorporate reasonably all disabilities of the
claimant recognized by the ALJ, and the
claimant or his representative is afforded the
opportunity to correct deficiencies in the
ALJ’s question by mentioning or suggesting to
the vocational expert any purported defects in
the hypothetical questions . . . a
determination of non-disability based on such
a defective question cannot stand.
Id. at 436.
In the hypothetical question, the ALJ focused on Boyd’s
problems in memory and concentration:
. . . . assume that I find that this man has
such disturbance to the extent that his maybe,
his concentration or memory is limited, so
that if he does work, he’s got to work in a
simple, one or two-step-type jobs . . . can
understand simple instructions, and . . . can
stay on task a full eight hours, but he does
not have to think about things too much, just
repetitive-type work?
(Hearing Transcript, p. 39). However, the information received
after the hearing showed that Boyd’s nonexertional limitations were
not limited to his memory or concentration. The post-hearing
19
evidence showed that Boyd was also significantly limited in his
ability to deal with people, to deal with ordinary work stresses,
and to function independently in daily activities. The post-hearing
examination reports included findings that Boyd exhibited
“borderline intellectual functioning”; suffered from panic attacks;
and had serious impairment in social or occupational functioning,
as reflected in a GAF score of 50. Dr. Ellis’s psychological
examination report concluded that Boyd exhibited “few adaptive
coping skills or adequate social skills” and that severe anxiety
limited his ability to perform any job responsibilities. Dr.
Pepermintwala diagnosed Boyd with a “major depressive Disorder with
Psychotic features.”
The ALJ’s hypothetical question did not incorporate many
of the impairments or limitations described in these post-hearing
examination reports, which were not contradicted by other testimony
or records. The ALJ’s hypothetical referred only to limited memory
and concentration capabilities. The hypothetical cannot be said to
“incorporate reasonably all disabilities of the claimant recognized
by the ALJ.” Bowling, 36 F.3d at 436.
The government argues that Boyd’s representative had a
fair opportunity to correct deficiencies in the hypothetical, and
observes that Boyd’s representative cross-examined the vocational
expert. However, the holding in Bowling stated only that an ALJ may
not rely on a hypothetical without giving the claimant an
20
opportunity to correct deficiencies in the question. It did not
state that a party’s failure to point out the problems in a
defective hypothetical automatically salvages that hypothetical as
a proper basis for a determination of non-disability. Bowling, 36
F.3d at 436. In this case, moreover, the major evidence concerning
Boyd’s mental impairments was not available to either the ALJ or to
Boyd until after the hearing was completed. Boyd did not have a
“fair” opportunity at the hearing to challenge the assumptions
underlying the hypothetical question and to point to additional
impairments.
The government argues that a remand is not necessary
because “the medical evidence is replete with references to
alcoholism and mental disorders associated with alcoholism.” The
government points out that alcohol addiction that materially
contributes to disability cannot be a basis for an award of
disability benefit and contends that because the severity of Boyd’s
mental impairments was affected by alcoholism, remand would be a
“waste.” However, as the government acknowledges, the ALJ did not
base his decision on Boyd’s alcohol use. The ALJ considered the
evidence of Boyd’s alcohol use and did not find it to be a factor
material to the disability determination. The government’s argument
invites this court to assume that the ALJ would reach a result on
remand that he declined to reach in the initial decision. This is
21
speculation that lies beyond the scope of appellate review. See
Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999).
The ALJ has a duty “‘to develop the facts fully and fairly
relating to an applicant's claim for disability benefits.’ ‘If the
ALJ does not satisfy his duty, his decision is not substantially
justified.’” Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000)
(quoting Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)).
Because the ALJ relied on testimony elicited by a defective
hypothetical question, the ALJ did not carry his burden to show that
despite Boyd’s impairments, Boyd could perform available work. We
vacate and remand for the ALJ to determine Boyd’s eligibility for
disability benefits based on a record accurately reflecting all of
Boyd’s impairments and the degree of their severity.
IV. CONCLUSION
The ALJ applied the correct legal standard, but his
decision to deny benefits was not supported by substantial evidence.
We therefore VACATE and REMAND.
22