Opinion
Civil Action No. 8:00-CV-494-T-24A
September 26, 2001
MEMORANDUM AND ORDER
This is an action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The plaintiff, Charlotte Nielsen ("Nielsen"), seeks judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her application for social security disability insurance and supplemental security income.
I. BACKGROUND
A. Statement of Facts
1. Medical History
Nielsen sought medical care in June 1988 after an accident at work in which she sustained neck and shoulder injuries, as well as a fractured left wrist. Tr. 214, 216. At that time, she informed her treating physician, Dr. John C. Baker ("Dr. Baker"), that the accident had aggravated pre-existing neck and shoulder pain from an automobile collision in 1985. Tr. 202, 200. Surgery was performed to insert pins into Nielsen's left wrist and a cast was applied. Tr. 204, 205, 211. Dr. Baker prescribed Motrin for Nielsen's pain. Tr. 181.
In 1989, Nielsen began to complain that her pain was getting "progressively worse," Tr. 199, and that the pain in her neck was radiating down into her arms and legs, id. An MRI of the cervical spine performed in October 1990 revealed that Nielsen suffered from slight posterior bulging of the C4-C5 and C5-C6 discs which, in conjunction with small osteophytes, caused impingement on the anterior aspect of the subarachnoid space. Tr. 210. No disc herniation was seen at that time. Id.
A subsequent MRI and consultation with a neurosurgeon in 1994 confirmed that Nielsen suffered from bulging and degenerative disc disease at the C4-5 and C5-6 levels, but no disc herniation. Tr. 214-15.
Despite her pain, Nielsen continued working until July 1991, when she suffered what she described as a "nervous breakdown." Tr. 358. According to Nielsen, her breakdown resulted not only from her physical problems, but also from ongoing sexual harassment at work. Tr. 132, 153, 159, 217. She was hospitalized at the Atlantic City Medical Center from July 9 until July 19, 1991 for major depression. Tr. 132. Upon discharge, a psychiatrist at the Atlantic City Medical Center, Dr. Pretpaul Singh, observed that Nielsen's "mood and affect were appropriate" and that she had a "more positive outlook towards life" than when she was admitted. Tr. 133-34. Nielsen was prescribed Pamelor and Prozac for her depression. Tr. 134. She took these drugs in combination until October 1991, at which point she allegedly began suffering hallucinations at night, and stopped taking medication altogether. Tr. 152-53.
In 1992, Nielsen moved to Florida to live with her parents. Tr. 218. There she sought individual and group counseling at the Manatee Glens Counseling Center. She was diagnosed with chronic post-traumatic stress disorder in February 1992. Tr. 160. She attended the individual and group sessions until around June 1993. Tr. 145. Evaluations by Dr. Donna Rigolizzo of Manatee Glens starting in July 1992 revealed that Nielsen was "in the throes of a true major depression." Tr. 151. She was prescribed Prozac in July, Tr. 150, and began showing signs of improvement as early as August. Tr. 149, 176. By October 1992, Nielsen's mood was "generally happy and not depressed." Tr. 147. Nielsen exhibited few or no side effects from the Prozac at that time. Tr. 147, 149.
Nielsen allegedly stopped attending therapy sessions because she could no longer afford them. Tr. 218.
On February 21, 1994, Nielsen was seen by Dr. James L. Slocum ("Dr. Slocum") for a psychiatric consultation in anticipation of her first disability hearing. Dr. Slocum reported that Nielsen stopped taking Prozac in June 1993 because "it just didn't feel right and she still had nightmares." Tr. 212. Instead, she was taking "a bunch of herbs." Id. Dr. Slocum diagnosed Nielsen with Dysthymia. Tr. 213.
In April 1994, Nielsen underwent a psychological assessment by Dr. Carol Twitchell ("Dr. Twitchell"), a clinical psychologist. After seeing Nielsen twice and administering the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2"), Dr. Twitchell stated her diagnostic impression that Nielsen suffered from post-traumatic stress disorder and major depression. Tr. 219. Although Dr. Twitchell did not provide raw scores or data from the MMPI-2 in her report, she did state that "Nielsen's clinical profile on the MMPI-2 is characteristic of persons who are suffering from great emotional turmoil," Tr. 219, and concluded that "[Nielsen's] persistent fear of work harassment, slow performance, difficulty with concentration and tendency to cry easily are all serious drawbacks to her ability to obtain and maintain full-time employment," Tr. 220.
In August 1994, Nielsen began seeing Dr. Philip K. Nelson ("Dr. Nelson"), an OB/GYN and specialist in chronic fatigue and immune dysfunction syndrome. Tr. 298. Dr. Nelson treated Nielsen for fatigue and for the physical pain she continued to suffer in her neck, shoulders, arms, and legs. Tr. 231-33, 260-63. In August 1995, Dr. Nelson completed a physical capability report based on Nielsen's past medical history and Dr. Nelson's clinical observations. In that report, Dr. Nelson indicated that Nielsen could lift up to fifteen pounds, could stand, sit, or walk for up to two hours in a day, was limited in her ability to push, pull, climb, balance, stoop, crouch, kneel, and crawl, and faced environmental restrictions on the type of work she could perform. Tr. 234-35. Dr. Nelson diagnosed Nielsen with "severe fatigue . . . . cognitive impairment (memory and attention deficit), sleep disturbance, headaches, muscular weakness, myalgias, arthalgias, chest pain, dysuria and irritable bowel." Tr. 298. He prescribed Zoloft to combat fatigue during the day and sleeplessness at night, as well as Lortab for pain relief; Dr. Nelson opined that Nielsen "would be unable to function even minimally without [Lortab]." Id.
In a letter faxed to Nielsen's attorney on June 18, 1998, Dr. Nelson indicated that his original diagnosis in 1994 was also based on "criteria developed by the Centers for Disease Control." Tr. 298. The letter did not specify what these criteria were or what the original diagnosis was, however.
A revised physical capability report completed by Dr. Nelson in November 1997 revealed a slight improvement in Nielsen's residual functional capacity. Tr. 273-74.
From July 1994 until April 1995, Nielsen saw a licensed massage therapist for "extreme pain and discomfort in [the] neck and down right and left arms." Tr. 253. Treatment notes reveal some progress, e.g., Tr. 250 (noting on August 29, 1994 that Nielsen "seems to be feeling better" and that "musculature overall is soft[ening]"), but also some continued pain, e.g., Tr. 241 (noting on February 20, 1995 that Nielsen is "very sore," and that "everything hurts").
2. Education and Past Relevant Employment
Nielsen graduated from high school and completed a secretarial course, Tr. 288, although she did not work as a secretary for any significant length of time, Tr. 158. From around 1980 until July 1991, Nielsen worked for the New Jersey Highway Authority, first as a toll collector and later as a maintenance worker, doing work that included operating machinery and driving trucks. Tr. 290. In 1994, Nielsen began working part-time as a cashier and clerk at a natural foods store. Tr. 288, 290.
B. Administrative Proceedings
Nielsen initially applied for social security disability benefits on December 15, 1993. Tr. 81. After her claim was denied, initially and upon reconsideration, she requested a hearing in front of an administrative law judge. After a hearing on September 20, 1995, the administrative law judge denied Nielsen's claim of disability, finding that "[t]he claimant's statements concerning her impairments and their impact on her ability to work are not entirely credible," Tr. 69, and that there were jobs existing in significant numbers in the national economy that are "routine and repetitive in nature not involving significant concentration, memory or judgement" that Nielsen could perform, Tr. 68. On December 24, 1997, however, the Appeals Council of the Social Security Administration remanded the case for further consideration of Nielsen's residual functional capacity and to elicit additional testimony from a vocational expert regarding the jobs available to Nielsen based on her "limitations established by the record as a whole." Tr. 258-59.
A supplemental hearing was held on June 5, 1998. Tr. 15. At this second hearing, the administrative law judge concluded that while Nielsen did have "severe impairments: fatigue and possible chronic fatigue syndrome; and history of back injury," these impairments were not disabling, and did not prevent Nielsen from performing a "full range of light work," Tr. 23-24, either in her previous job as a clerk and cashier, or as a "greeter, ticket taker and ticket checker," Tr. 26. On January 13, 2000, the Appeals Council denied Nielsen's request for review, Tr. 5-6, thereby making the decision of the administrative law judge in the second hearing the final decision of the Commissioner with respect to Nielsen's claim. Nielsen appeals to this Court as is her right under 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The Court's review of a social security disability benefit determination is limited under 42 U.S.C. § 405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." Id.; see also Richardson v. Perales, 402 U.S. 389, 401 (1971); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Walden v. Schweiker, 672 F.2d 835, 838-39 (11th Cir. 1982). In McRoberts v. Bowen, 841 F.2d 1077 (11th Cir. 1988), the Eleventh Circuit further delineated this standard, stating that substantial evidence "must do more than create a suspicion of the existence of the fact to be established," id. at 1080 (quoting Walden, 672 F.2d at 838).
This Court must therefore determine whether substantial evidence exists in the record as a whole to support the findings of the Commissioner. Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam); Smallwood v. Schweiker, 681 F.2d 1349, 1351 (11th Cir. 1982); Walden, 672 F.2d at 838. The Court has a duty to "scrutinize the record" in full in order to assess "the reasonableness of the decision reached." Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (per curiam). "It is incumbent upon the reviewing court to examine the findings and decision of the [Commissioner] in light of the record in its entirety, not only that evidence which supports the decision." Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988) (citing Owens v. Heckler, 748 F.2d 1511 (11th Cir. 1984) (per curiam), Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991), and Harrell v. Harris, 610 F.2d 355 (5th Cir. 1980) (per curiam)).
"A determination that is supported by substantial evidence may be meaningless, however, if it is coupled with or derived from faulty legal principles." Boyd, 704 F.2d at 1209. Thus, the Court must also be satisfied that the Commissioner applied the correct legal standards in making his decision. Id.; Wiggins v. Schweiker, 679 F.2d 1387, 1389 n. 3 (11th Cir. 1982). The Commissioner's determination of the proper legal standards to be applied is not entitled to a presumption of validity, Bridges, 815 F.2d at 624, and failure by the Commissioner to apply the correct legal standards is grounds for reversal, not remand, in most instances. Bowen v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984).
The scope of this Court's review is constrained by the Eleventh Circuit's instruction in Martin: The Court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner, even if it finds that the evidence preponderates against the Commissioner's decision. 894 F.2d at 1529.
Nielsen bears the initial burden of establishing through credible evidence that she was disabled within the meaning of the Social Security Act. Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir. 1985) (per curiam). Under the Social Security Act, "disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The statute further provides that:
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . .
Id. § 423(d)(2)(A). Evidence of an impairment is therefore insufficient to justify an award of benefits. The claimant must also point to evidence in the record that demonstrates that the impairment prevented her from engaging in any substantial activity. Gibson, 762 F.2d at 1518.
The Social Security Administration has promulgated regulations that have defined this determination of disability as a five-step analysis. See 20 C.F.R. § 404.1520, 416.920. First, the Commissioner determines whether the claimant is currently employed. Id. Second, the Commissioner determines whether the claimant has an impairment that prevents the performance of basic work activities. Id. Third, the Commissioner determines whether the claimant's impairment meets or equals an impairment listed in Appendix 1 of Part 404 of the regulations. Id. Fourth, the Commissioner determines whether the claimant's impairment prevents her from satisfying the physical and mental demands of her past work. Id. Fifth, the Commissioner determines whether the claimant's age, education, and past work experience prevent the performance of any other work in the economy. Under this sequential analysis, the Commissioner's duty ends as soon as he is capable of determining whether the claimant is disabled. Id. § 404.1520(a) ("If we can find that you are disabled or not disabled at any point in the review, we do not review your claim further."); accord id. § 416.920(a).
III. DISCUSSION
Nielsen asserts that the decision of the administrative law judge in the second hearing is legally erroneous and not based on substantial evidence for three reasons. First, the administrative law judge allegedly ignored affidavits from Nielsen's parents and employer in concluding that Nielsen does not suffer from a mental impairment. Pl.'s Mem. at 11-14. Second, the administrative law judge allegedly failed to consider the opinion of Nielsen's treating physician, Dr. Nelson, regarding Nielsen's residual functional capacity. Id. at 14-17. Third, the administrative law judge allegedly ignored the testimony of the vocational expert, in direct contravention of the remand order of the Appeals Council, by failing to mention explicitly the vocational expert's testimony in the decision. Id. at 17-19. After considering some preliminary issues, the Court addresses these arguments in turn.
A. Preliminary Issues
Nielsen raises two preliminary issues that must be analyzed before the Court considers her principal arguments. First, she contends that the Commissioner ignored her request for a closed period of benefits from July 1991 until January 1995. Id. at 1, 9. Nielsen initially claimed benefits from July 9, 1991 to the present. Tr. 81. Before the record upon which the administrative law judge was to make his decision closed, Tr. 425, however, Nielsen amended her claim to request a "closed period" beginning at the same time but ending in January 1995, Tr. 32. The authority of the Commissioner to award a closed period of benefits is undisputed. Social Security Ruling 74-6c, available at http://www.ssa.gov/OP_Home/rulings/di/04/ SSR74-06-di-04.html ("[W]e think it clear that . . . a closed period of benefits may be awarded."). The Court holds that the Commissioner should limit future consideration of Nielsen's claim to the period from July 1991 to January 1995. This cuts both ways, however, as much of the evidence submitted by Nielsen concerning her physical and psychological condition after January 1995 is no longer relevant, and should be ignored.
Nielsen next argues that the administrative law judge improperly found her to be employed at the substantial gainful level in 1994 by relying on a figure that erroneously added her income from 1995 to that earned in 1994. Pl.'s Mem. at 10-11. The administrative law judge concluded, based on a Social Security earnings report, that Nielsen made $10,227 in 1994. Tr. 17, 276. Nielsen's W-2 records, however, show that she earned only $3,638 in 1994. Tr. 293. The difference between these figures is significant because the regulations establish that income over $6,000 in 1990 to 1999 is generally employment at the substantial gainful level, and thus leads to a finding of not disabled at step one of the five-step disability inquiry. 20 C.F.R. § 404.1574(b)(2)(i) tbl. 1.
This does not mean that a person who made less than $6,000 per year in 1990 to 1999 automatically is considered not to have engaged in substantial gainful activity. Only if a person made less than $300 per month, or $3,600 per year, during these years will she generally be considered not to have engaged in substantial gainful activity. 20 C.F.R. § 404.1574(b)(3) tbl. 2. Income between $3,600 and $6,000 does not fall into a per se category, but is instead analyzed according to factors set forth in section 404.1574(b)(6)(iii), such as whether the work the claimant did is comparable to that done by unimpaired persons as their means of livelihood, id. § 404.1574(b)(6)(iii)(A). Because Nielsen falls into this middle category, on remand the administrative law judge must consider the factors set forth in section 404.1574(b)(6)(iii) to determine whether Nielsen was employed at the substantial gainful level in 1994.
The earnings stated by the administrative law judge for 1994 appear to be based on the erroneous addition of Nielsen's 1994 and 1995 earnings as recorded by her tax records. The addition of Nielsen's 1994 and 1995 earnings produces the exact total recited by the Social Security earnings report and the administrative law judge. Tr. 305. The Court holds that Nielsen's W-2 records are controlling on the issue of how much Nielsen earned in 1994. The Commissioner should assume that Nielsen earned $3,638 in 1994, and proceed to determine whether she was employed at the substantial gainful level under section 404.1574(b)(6)(iii) of Title 20 of the Code of Federal
Regulations.
B. Mental Impairment Evidence
Nielsen finds error in the failure of the administrative law judge to consider affidavits submitted by her parents and her employer, Tr. 266-72, which Nielsen contends establish a "substantial loss of ability" to perform basic mental activities such as "understanding, remembering," "making simple work-related decisions," and "responding appropriately to . . . usual work situations," which would justify a finding of disability under Social Security Ruling 96-9p. Pl.'s Mem. at 12. In particular, Roger Schultz ("Schultz"), Nielsen's employer at the natural foods store, stated in an affidavit that Nielsen is often so fatigued that she is unable to complete a four hour shift, "doesn't focus and remember things," "has trouble counting change," and is "not able to deal with customers who are in a hurry." Tr. 271. Schultz also stated that, in his belief, Nielsen is "not capable of working a full work day, five days a week." Tr. 272. The administrative law judge did not mention Schultz's affidavit or the affidavits of Nielsen's parents in his decision, and did not take them into consideration during the hearing, except to say that the affidavits "are not medical documents." Tr. 403.
Schultz's affidavit was corroborated by testimony at Nielsen's hearing by one of her co-workers, Jane Masina ("Masina"). Masina testified that Nielsen often forgets the names of products, "has a hard time ringing things up," and gets stressed when more than one customer is present. Tr. 384. Masina also stated that Nielsen calls in sick more than once a month. Id. The administrative law judge mentioned Masina's testimony in his decision, Tr. 23, but did not expressly discredit or assign weight to the testimony.
Nielsen's parents stated in their affidavits that she moved in with them because "she wasn't able to take care of herself," Tr. 266, that her "memory was very poor," Tr. 266, 268, that she did not interact with people socially very often, Tr. 267, 269, and that she was tired all the time, Tr. 266, 269.
An administrative law judge must state the weight attributed to each piece of impairment evidence and must state reasons for rejecting the evidence if it is ultimately rejected. Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990) ("[T]he [administrative law judge] should state the weight he accords to each item of impairment evidence and the reasons for his decision to accept or reject that evidence."); Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986) ("The [administrative law judge] must state specifically the weight accorded each item of evidence and the reasons for his decision."); accord Brooks v. Sullivan, 882 F.2d 1375, 1379 (8th Cir. 1989) (finding error in the failure of the administrative law judge to consider testimony from the claimant's wife and former employer regarding claimant's physical limitations), cited with approval in Lucas, 918 F.2d at 1574. Statements from lay witnesses, including friends and relatives of the claimant, as well as the claimant herself, constitute valid impairment evidence that must be considered. 20 C.F.R. § 404.1512(b)(3) (stating that evidence of an impairment includes "[s]tatements you or others make about your impairment(s), your restrictions, your daily activities"); Social Security Ruling 85-16, available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR85-16-di-01.html ("To arrive at anoverall assessment of the effects of mental impairment, relevant, reliable information, obtained from . . . previous employers [and] family members . . . may be valuable. . . ."). The affidavits of Nielsen's employer and parents, as well as Masina's testimony, constituted legitimate evidence of impairment that must be addressed by the administrative law judge, and if they are rejected as reliable evidence, reasons must be provided. Because the administrative law judge failed to do so, either at the hearing or in the decision, the case must be remanded to allow the administrative law judge an opportunity to weigh this evidence explicitly.
C. Residual Functional Capacity
Nielsen asserts that the administrative law judge ignored the opinion of Dr. Nelson, Nielsen's treating physician, on the issue of Nielsen's residual functional capacity, even though Dr. Nelson's opinion allegedly constituted the only evidence on this point. Pl.'s Mem. at 14.
Section 404.1527 of Title 20 of the Code of Federal Regulations sets out the framework for assigning weight to the opinions of medical professionals. Generally, the opinions of physicians who have treated the claimant for an extended period of time are accorded great (if not controlling) weight. 20 C.F.R. § 404.1527(d)(2) ("Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) . . . ."); id. § 404.1527(d)(2)(i) ("[T]he longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion."). The Commissioner must consider evidence from treating physicians in determining the residual functional capacity of a particular claimant. Id. § 404.1545(a) (stating that observations from treating physicians "must be considered along with your medical records to enable us to decide to what extent your impairment(s) keeps you from performing particular work activities"). Because a decision about the claimant's residual functional capacity is an "administrative finding that [is] dispositive of [the] case," id. § 404.1527(e), however, it is ultimately the Commissioner's decision to make, id. § 404.1527(e)(2), and the opinion of a treating physician regarding residual functional capacity is therefore not entitled to any "special significance," id. § 404.1527(e)(3); accord Williams v. Halter, 135 F. Supp.2d 1225, 1233 (M.D.Fla. 2001).
In this case, the administrative law judge discredited Dr. Nelson's August 1995 conclusions regarding Nielsen's residual functional capacity because Dr. Nelson's report was based on "the claimant's subjective complaints and history of problems rather than definitive diagnostic data and physical findings." Tr. 24. Dr. Nelson's brief report provides no medical explanation for any of Nielsen's limitations; it states that the conclusions in the report are based only on "history and clinical observation," Tr. 234-35. A treating physician's report may be discounted when "it is not accompanied by objective medical evidence or is wholly conclusory." Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991) (upholding the Commissioner's rejection of the opinion of the claimant's treating physician that the claimant could work no more than four hours per day because the doctor's report "contain[ed] no clinical data or information to support his opinion"). Because decisions about residual functional capacity are left to the Commissioner, 20 C.F.R. § 404.1527(e)(3), and because Dr. Nelson's report cataloging Nielsen's limitations was unaccompanied by any objective medical evidence, this Court will not second-guess the explanation of the administrative law judge for refusing to credit Dr. Nelson's August 1995 report.
As an example of the paucity of objective medical evidence supporting Dr. Nelson's opinion, the report states that Nielsen may face limitations on her ability to see and speak at work, because of her "cognitive impairment." Tr. 235. The precise cognitive impairment from which Nielsen suffers is not specified.
An additional problem with Dr. Nelson's report is that it was prepared after the close of the period for which Nielsen is now seeking disability benefits, Tr. 32. This makes even the basic relevance of the report questionable at best, as the critical question is what were Nielsen's limitations before 1995.
D. Testimony of Vocational Expert
Nielsen attributes error to the alleged failure of the administrative law judge to consider testimony of the vocational expert about the number of jobs available in the local and national economy given Nielsen's physical and psychological limitations. In response, the Commissioner argues that because the case was resolved at step four of the process outlined in the regulations for determining whether a claimant is disabled — i.e., the administrative law judge determined that Nielsen could return to her past relevant work, 20 C.F.R. § 404.1520(e), 416.920(e) — the testimony of the vocational expert regarding whether Nielsen could perform any other work in the economy was immaterial. Def.'s Mem. at 9.
The Appeals Council ordered the administrative law judge to obtain evidence from a vocational expert regarding the jobs available to Nielsen in light of her limitations reflected by the "record as a whole." Tr. 259. The administrative law judge complied by eliciting and considering the testimony of a vocational expert, and by relying on the expert's testimony in finding Nielsen not disabled. Tr. 26 ("Even if [Nielsen] could not perform her past relevant work, and the burden were on the Commissioner to show that she could perform a significant number of other jobs in the national economy, that burden is also met."). The testimony of the vocational expert was thus indispensable to the Commissioner's determination that Nielsen was not disabled.
The Court is troubled by some of the hypothetical questions asked of the vocational expert by the administrative law judge regarding Nielsen's physical limitations, and by some questions that the administrative law judge failed to ask. For instance, the administrative law judge asked the vocational expert to assume that Nielsen could "sit, stand, and walk for six out of eight hours a day . . . chang[ing] positions as needed." Tr. 26, 416 (emphasis added). The administrative law judge did not state how he concluded that this hypothetical accurately summarized Nielsen's limitations, however. Additionally, the administrative law judge did not ask the vocational expert about Nielsen's frequent absences from work or about her fatigue, which often requires her to take naps during the day.
The administrative law judge may have found these limitations to be incredible, but he did not say so either in the hearing transcript or in his decision. Nielsen's attorney did ask the vocational expert about these hypothetical limitations, and the expert responded that a person with such limitations would be unable to perform full-time work. Tr. 422, 423. The administrative law judge did not address that testimony from the vocational expert.
If the questions posed to a vocational expert do not accurately reflect a claimant's limitations, then the testimony of the expert cannot suffice to meet the Commissioner's burden of proving that the claimant may perform other work in the national economy. Vega v. Comm'r Soc. Sec., No. 00-14934, 2001 WL 1103272, at *5 (11th Cir. Sept. 20, 2001) ("Upon remand, the [administrative law judge] should pose a more thorough hypothetical question, including [claimant's] subjective complaints [of headaches, significant memory or concentration problems, fatigue, wrist pain, and dizziness] and her symptoms of [chronic fatigue syndrome]."); Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) ("In order for a [vocational expert]'s testimony to constitute substantial evidence, the [administrative law judge] must pose a hypothetical question which comprises all of the claimant's impairments."), cert. denied, 529 U.S. 1089 (2000). To be sure, the administrative law judge need not incorporate into the hypothetical questions all of the evidence of impairment submitted; only that evidence found to be credible by the administrative law judge need be incorporated. Martinson v. Shalala, 843 F. Supp. 1448, 1450-51 (M.D.Fla. 1994) (approving hypothetical questions to a vocational expert that incorporated "objective medical testimony" of plaintiff's physicians while ignoring plaintiff's complaints of pain, which were found to be incredible). But because the administrative law judge in this case failed to state which of Nielsen's limitations were credible, and failed to provide a basis for his findings regarding Nielsen's limitations before posing questions to the vocational expert, the vocational expert's testimony does not provide substantial evidence for the Commissioner's finding that Nielsen is able to perform other work in the national economy.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is VACATED and the case is REMANDED for proceedings consistent with this opinion.
On remand, the administrative law judge will limit inquiry
to the period from July 1991 to January 1995 to determine Nielsen's ability to perform her past relevant work or other work in the national economy. This will help sharpen the inquiry by eliminating consideration of now-irrelevant evidence of Nielsen's physical and psychological condition after January 1995. Ultimately, it is the province and the responsibility of the administrative law judge to draw a composite sketch of Nielsen's physical and psychological limitations, as well as her residual functional capacity, and to question the vocational expert on the basis of that sketch, before concluding that Nielsen is or is not disabled.