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Dial v. Commissioner of Social Security

United States Court of Appeals, Eleventh Circuit
Nov 18, 2010
403 F. App'x 420 (11th Cir. 2010)

Summary

holding that where an ALJ failed to include all of the claimant's "employment limitations in the hypothetical questions posed to the VE . . ., the VE's testimony did not constitute substantial evidence upon which the ALJ could rely."

Summary of this case from Wright v. Colvin

Opinion

No. 10-11829 Non-Argument Calendar.

November 18, 2010.

Roger W. Plata, Roger W. Plata, PA, St. Petersburg, FL, for Plaintiff-Appellant.

Brian C. Huberty, Jessica V. Johnson, Holly G. Grimes, Mary Ann Sloan, John C. Stoner, Dennis R. Williams, Social Security Office, Office of the General Counsel, Atlanta, GA, A. Brian Albritton, David Paul Rhodes, Susan Roark Waldron, U.S. Attorney's Office, Tampa, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:08-cv-00805-JDW-TBM.

Before BARRETT, PRYOR and ANDERSON, Circuit Judges.


Bharatt Dial appeals from the district court's order affirming the Social Security Commissioner's denial of his application for disability insurance benefits, pursuant to 42 U.S.C. § 405(g). "We review the Commissioner's decision to determine if it is supported by substantial evidence and based on proper legal standards." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quotation omitted).

In this case, the Administrative Law Judge ("ALJ") denied Dial's application on the ground that he could perform his past relevant work and other jobs in the regional economy. In reaching this conclusion, the ALJ relied exclusively on the testimony of a vocational expert ("VE"). However, it is undisputed that the ALJ failed to include all of Dial's employment limitations in the hypothetical questions posed to the VE. Thus, the VE's testimony did not constitute substantial evidence upon which the ALJ could rely. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Pendley v. Heckler, 767 F.2d 1561, 1562-63 (11th Cir. 1985).

Nonetheless, the district court found, and the Commissioner contends, that this error was harmless because, according to the job descriptions contained in the Dictionary of Occupational Titles ("DOT"), Dial's past relevant work and other jobs in the regional economy would not require him to perform duties inconsistent with his employment limitations. However, while the ALJ could have chosen to rely on the DOT, he instead relied only on the testimony of the VE, who was not instructed on all of Dial's limitations. Thus, we cannot say that the ALJ's error was harmless. Cf. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (concluding that the ALJ's factual errors were harmless only because they were irrelevant to the ALJ's legal determination).

VACATED AND REMANDED.


Summaries of

Dial v. Commissioner of Social Security

United States Court of Appeals, Eleventh Circuit
Nov 18, 2010
403 F. App'x 420 (11th Cir. 2010)

holding that where an ALJ failed to include all of the claimant's "employment limitations in the hypothetical questions posed to the VE . . ., the VE's testimony did not constitute substantial evidence upon which the ALJ could rely."

Summary of this case from Wright v. Colvin

finding ALJ's failure to pose a complete hypothetical question to the V.E. was not harmless where the question excluded some of Plaintiff's employment limitations.

Summary of this case from Johnson v. Saul

finding that the ALJ's error was not harmless when it affected the ultimate conclusion and the ALJ's legal determination

Summary of this case from McShane v. Comm'r of Soc. Sec.

In Dial, the Eleventh Circuit found reversible error where the ALJ failed to include all of the claimant's employment limitations in the hypothetical question posed to the VE. Dial, 403 Fed.Appx. at 421.

Summary of this case from Mockler v. Comm'r of Soc. Sec.

In Dial, the Eleventh Circuit reversed the district court, finding it was not harmless error when the ALJ failed to include all of the claimant's employment limitations in the hypothetical question posed to the VE, because the ALJ relied exclusively on the VE's testimony and did not consider the DOT. 403 F. App'x at 421.

Summary of this case from Hedges v. Comm'r of Soc. Sec.

In Dial, the Eleventh Circuit reversed the lower court holding that it was not harmless error for the ALJ to fail to include all of Dial's employment limitations in the hypothetical questions posed to the VE where the ALJ relied exclusively on the testimony of the VE and did not consider the descriptions of jobs in the DOT.

Summary of this case from Schryvers v. Berryhill

In Dial, the Eleventh Circuit considered whether an ALJ's failure to include all of the claimant's limitations in the hypothetical question to the VE was harmless because the DOT description of the jobs identified by the VE would not require the claimant to perform duties inconsistent with claimant's RFC.

Summary of this case from Alvesteffer v. Colvin

In Dial v. Comm'r of Soc. Sec., 403 F. App'x 420, 421 (11th Cir. 2010), the court fount that where "the ALJ failed to include all of Dial's employment limitations in the hypothetical questions posed to the VE,... the VE's testimony did not constitute substantial evidence upon which the ALJ could rely."

Summary of this case from Evans v. Colvin

stating that "we cannot say the ALJ's error was harmless" where the ALJ relied only on the faulty testimony of the VE

Summary of this case from Evans v. Colvin

In Dial v. Commissioner of Social Security, 403 Fed.Appx 420, 421 (11th Cir. Nov. 18, 2010) (unpublished), the Eleventh Circuit considered whether an ALJ's failure to include all of the claimant's limitations in the hypothetical question to the VE was harmless because the Dictionary of Occupational Titles' description of the jobs identified by the VE would not require the claimant to perform duties inconsistent with claimant's RFC.

Summary of this case from Jackson v. Comm'r of Soc. Sec.
Case details for

Dial v. Commissioner of Social Security

Case Details

Full title:Bharatt DIAL, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Nov 18, 2010

Citations

403 F. App'x 420 (11th Cir. 2010)

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