Bowers v. Astrue , 271 F. App'x 731 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 26, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
MICHELLE E. BOWERS,
Plaintiff–Appellant,
v. No. 07-5114
(D.C. No. 06-CV-109)
MICHAEL J. ASTRUE, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant–Appellee.
ORDER AND JUDGMENT *
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.
Michelle E. Bowers appeals from a district court order affirming the denial
of disability benefits by the Commissioner of the Social Security Administration
(“Commissioner”). She argues that the vocational expert (“VE”) who testified
about jobs in the national economy that she could perform was not fully informed
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of her mental impairments. We have jurisdiction under 42 U.S.C. § 405(g) and 28
U.S.C. § 1291, and we REVERSE and REMAND.
I
At the time of her disability hearing, Bowers was thirty-nine years old and
had a high-school education. She testified to numerous physical and mental
health issues. Only the latter category—specifically, anxiety and depression—are
at issue in this appeal.
Bowers explained that her anxiety interferes with her ability to concentrate
and that her depression is “very oppressive[,] . . . like someone is pushing you
down.” Her sister testified that Bowers has displayed hopelessness, “a
tremendous amount of anxiety,” and “full fledged” panic attacks. A treating
physician submitted a letter, confirming the presence of “anxiety disorders[ ] and
severe depression.”
The presiding Administrative Law Judge (“ALJ”) presented the VE with
various hypothetical claimants who suffered from depression and anxiety. The
ALJ inquired whether such people could perform Bowers’ past relevant work
(“PRW”) as a janitor, a medical receptionist, a collection clerk, and a client-
service representative, and whether there were any other jobs in the national
economy that they could perform. Specifically, the ALJ instructed the VE:
Because of the depression, the anxiety, panic, keep the work simple,
repetitive and routine, and then I’m attempting to restrict both
content, as well as stress level, and we will put a slight limitation on
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contact with the public, coworkers, and supervisors, and limiting
contact with the public, it needs to be brief and cursory. It can be
repetitive in nature, like hi, welcome to Good Burger, home of the
good burger, can I take your order, please. . . . A bank teller might
be brief, but it might be more complex than I anticipate. A shoe or
dress salesperson might not be overly complicated, but it may be
more prolonged than I anticipate. The same holds true as far as brief
and cursory contact with coworkers. I’ve not seen this as something
. . . to preclude an assembly line work, but she should not be in a
group where she’s going to have an interval [sic] part in goal setting,
process planning, things of that nature . . . . I do not attempt to
restrict routine, ordinary supervision . . . .
Given these limitations, the VE testified that the hypothetical claimants could not
perform any PRW, but could perform work in the national economy as clerical
mailers or food-and-beverage order clerks, which are unskilled, sedentary jobs.
At the conclusion of the hearing, the ALJ commented, “I don’t think we’ve
done much, if any, development on the psychological aspects of [Bowers’
restrictions,] which I think probably play much more of a significant role than the
physical aspects do.” Accordingly, he requested that Bowers undergo a
consultative psychological examination.
Bowers was seen two months later by Dr. Brian Snider, who described her
psychiatric symptoms as including anxiety and “nightmares and flashbacks of
abuse as a child, constant depression, insomnia, poor concentration, irritability,
hopelessness, worthlessness, and suicidal thoughts.” Snider diagnosed Bowers
with post-traumatic stress disorder and “major Depressive Disorder, Recurrent-
Moderate.” He completed a mental medical source statement, concluding that
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Bowers was markedly limited in her ability to maintain attention and
concentration for extended periods. Marked limitations “[s]eriously affect[] [a
person’s] ability to perform basic work functions.” He also found eight moderate
limitations, which “[a]ffect[ ] but do[ ] not preclude [a person’s] ability to
perform basic work functions.” 1 Snider emphasized that Bowers’ “main
difficulties in a work environment would be sustaining concentration and
persistence.” 2
Thereafter, the ALJ considered the medical evidence, including Snider’s
findings, and decided that Bowers was not entitled to disability benefits. He
reasoned that, while she could not perform her PRW, she could work in the jobs
identified by the VE. In relying on the VE’s testimony, the ALJ summarily
concluded that Bowers’ limitations were covered by the hypothetical presented to
the VE.
1
The moderate limitations were in the areas of: (1) remembering locations
and work procedures; (2) understanding and remembering detailed instructions;
(3) carrying out detailed instructions; (4) performing activities within a schedule,
maintaining regular attendance, and being punctual; (5) working without
psychologically-based interruptions and performing at a consistent pace; (6)
responding appropriately to work changes; (7) traveling in unfamiliar places or
using public transportation; and (8) setting realistic goals and making plans.
2
The “ability to sustain focused attention and concentration sufficiently long
to permit the timely and appropriate completion of tasks commonly found in work
settings” is often discussed in terms of concentration, persistence, and pace. See
20 C.F.R. Part 404, Subpart P, § 12.00(C)(3). For the sake of clarity, we will use
the terms concentration and attention throughout the remainder of our decision
when discussing Bower’s psychological impairments.
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In affirming the ALJ’s decision, the federal district court ruled that the
ALJ’s hypothetical facts “fairly included” Snider’s findings. Bowers appeals.
II
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.
2003). “Substantial evidence is adequate relevant evidence that a reasonable
mind might accept to support a conclusion.” Kepler v. Chater, 68 F.3d 387,
388-89 (10th Cir. 1995).
Bowers argues that the ALJ erred in relying on the VE’s testimony because
the hypothetical facts considered by the VE do not cover Snider’s findings. We
agree.
“Testimony elicited by hypothetical questions that do not relate with
precision all of a claimant’s impairments cannot constitute substantial evidence to
support the [Commissioner’s] decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492
(10th Cir. 1991) (quotation omitted). As a basic premise, we can safely say that a
hypothetical is inherently suspect if crafted before the claimant’s limitations are
reasonably determined. Here, the ALJ created a hypothetical purporting to
address Bowers’ psychological limitations, but then announced that those
limitations would need to be further explored by a consultative examiner.
Although we can imagine that subsequent exploration might in some cases
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confirm a hypothetical’s validity, that did not happen in this case. Bowers was
subsequently found to be seriously impaired in her ability to concentrate and pay
attention for extended periods. She was also found moderately impaired in eight
other areas. The hypothetical posited for her psychological limitations did
nothing more than assume that simple work that was low in stress and brief in
interactions with others would be appropriate.
Simple work, however, can be ruled out by a vocational expert on the basis
of a serious impairment in concentration and attention. See, e.g., Brosnahan v.
Barnhart, 336 F.3d 671, 675 (8th Cir. 2003); Newton v. Chater, 92 F.3d 688, 695
(8th Cir. 1996). Bowers’ eight moderate impairments may also have decreased
her ability to perform that sort of work. Cf. S.S.R. 96-9P, 1996 WL 374185, at *9
(indicating that even “[a] less than substantial loss of ability to perform” a basic
work activity in unskilled, sedentary labor may erode the occupational base). We
take particular note of her moderate impairment in responding appropriately to
changes in a routine work setting, which is a general requirement for unskilled
work. See id. We also recognize her moderate impairments in understanding,
remembering, and carrying out detailed instructions. Although processing
detailed instructions is generally not a component of unskilled work, see id., the
two jobs specifically identified by the VE assume the ability to carry out written
and oral instructions. See U.S. Dep’t of Labor, Dictionary of Occupational Titles,
Appendix C (4th ed., rev. 1991) (indicating that processing instructions presented
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in written, oral, or diagrammatic form is a component of level three reasoning);
id. § 209.567-014 (assigning level three reasoning to work as a food-and-beverage
order clerk); id. § 209.687-026 (assigning level three reasoning to work as a mail
clerk).
Had the ALJ’s hypothetical included all of Bowers’ limitations, the VE’s
response may have been different. Consequently, the VE’s testimony does not
constitute substantial evidence with which the Commissioner can meet his burden
of proving that there are jobs in the national economy that Bowers can perform.
III
The judgment is REVERSED and the matter is REMANDED to the
district court, with instructions to remand to the Commissioner for further
proceedings in accordance with this order and judgment.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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