Boyd v. Apfel

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

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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.

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