Linda Gilbert v. Kenneth Apfel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2964
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Linda Gilbert, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Kenneth S. Apfel, Commissioner, *
Social Security Administration, *
*
Defendant - Appellee. *
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Submitted: February 12, 1999
Filed: April 13, 1999
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Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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LOKEN, Circuit Judge.
In June 1994, Linda Gilbert applied for Social Security supplemental security
income benefits. Ms. Gilbert claims she is disabled by a combination of physical and
mental impairments -- arthritis, obesity, carpal tunnel syndrome, chronic depression,
hypertension, and urinary incontinence. After a hearing, the Commissioner’s
administrative law judge denied benefits, finding that Ms. Gilbert “does not have any
impairment or impairments which significantly limit her ability to perform basic
work-related activities.” In other words, the ALJ stopped at step two of the five-step
analysis the Commissioner applies in these cases because he found Ms. Gilbert does
not suffer from a “severe” impairment. See 20 C.F.R. § 416.920(c); Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). After the Commissioner’s Appeals Council
denied review, Ms. Gilbert sought judicial review of the adverse agency decision.
She now appeals the district court’s grant of summary judgment in favor of the
Commissioner. We reverse.
The ALJ found that Ms. Gilbert has minor pain consistent with arthritis, wears
a brace on her right hand, is very overweight with some shortness of breath, suffers
from depression, has high blood pressure, and complains of urinary incontinence.
The ALJ found her subjective complaints of pain are not credible and the medical
record does not establish she has diabetes or a kidney impairment. From these
findings, the ALJ concluded Ms. Gilbert does not have a severe impairment.
At the administrative hearing, the ALJ sought testimony by a vocational expert,
posing the following hypothetical:
Q Okay. Assume I have a hypothetical individual, and that
individual is a high school graduate, 42 years of age, has mild pain.
Let’s say her personal contact with people would have to be only
incidental to the work performed, and also it would have to be a type of
work that would not require fine manual dexterity of the hands. . . .
[C]ould a person fitting that description do any of the past work of the
claimant?
A Your Honor, were there any restrictions in lifting in this
question?
Q No, other than the fact that it’s sedentary [work].
* * * * *
A No, Your Honor, such a[n] individual could not perform past
work.
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Q Are there entry level jobs available for a person fitting that
description?
A No, Your Honor, there would not be.
Q What are the characteristics that would rule out any jobs that
this person could do?
A Your Honor, manual dexterity would be required in jobs such
[as] assembly, entry level assembly positions.
The testimony of a vocational expert is relevant at steps four and five of the
Commissioner’s sequential analysis, when the question becomes whether a claimant
with a severe impairment has the residual functional capacity to do past relevant work
or other work. See 20 C.F.R. §§ 416.920(e) & (f), 416.945-.946. Although our focus
here is on step two, the severe impairment inquiry, the vocational expert’s answers
to the ALJ’s hypothetical questions are strong evidence that Ms. Gilbert’s
impairments are indeed severe -- the impairments not only “significantly limit her
ability to perform basic work-related activities,” the test for severity; in the vocational
expert’s opinion, they preclude Ms. Gilbert from working altogether. Thus, unless
the ALJ found upon reflection that she does not have the impairments attributed to
her in his hypothetical questions, his finding of not severe is contrary to this neutral
expert’s opinion.
In the ALJ’s final opinion, he noted the vocational expert’s opinions but
disregarded them because “the [work] limitations set forth in these hypothetical
questions are not supported by the credible evidence of record.” In posing
hypothetical questions to a vocational expert, an ALJ must include all impairments
he finds supported by the administrative record. See House v. Shalala, 34 F.3d 691,
694 (8th Cir. 1994). Although the ALJ here was certainly entitled to find at the end
of the hearing fewer or less severe impairments than he tentatively posed to the
vocational expert, the ALJ’s hypothetical questions in fact omitted impairments that
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he ultimately found present, particularly Ms. Gilbert’s obesity and some symptoms
of her depression. The ALJ did make a subsidiary finding that Ms. Gilbert’s “arthritis
and carpal tunnel syndrome are not severe impairments.” That conclusory finding
supports the ALJ’s decision to disregard the vocational expert’s opinions. But the
significance of the finding is diminished by the ALJ’s failure to analyze the extent to
which Ms. Gilbert’s arthritis and carpal tunnel syndrome, which the ALJ labels non-
severe, have produced the lack of manual dexterity that was the basis for the
vocational expert’s opinion she is essentially unemployable.
The Social Security Administration has published a ruling on the issue of
severe impairments which cautions:
Great care should be exercised in applying the not severe impairment
concept. If an adjudicator is unable to determine clearly the effect of an
impairment or combination of impairments on the individual’s ability to
do basic work activities, the sequential evaluation process should not
end with the not severe evaluation step. Rather, it should be continued.
. . . [S]equential evaluation requires that the adjudicator evaluate the
individual’s ability to do past work, or to do other work based on the
consideration of age, education, and prior work experience.
Social Security Ruling 85-28, quoted in Yuckert, 482 U.S. at 158 (O’Connor, J.,
concurring). Applying this cautious standard to the contradictory evidence in the
administrative record, we conclude that substantial evidence does not support the
ALJ’s decision to stop the sequential analysis of Ms. Gilbert’s claim with a step two
finding that she has no severe impairment.
The judgment of the district court is reversed and the case is remanded with
directions to remand to the Commissioner for further proceedings not inconsistent
with this opinion.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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