Debbie Webb v. Commissioner of Social Security

* The H onorable Peter C . Econo mus, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0144P (6th Cir.)
File Name: 04a0144p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DEBBIE WEBB,
Plaintiff-Appellee,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellant.
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No. 03-5158
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 01-00021—Jennifer B. Coffman, District Judge.
Argued: March 16, 2004
Decided and Filed: May 19, 2004
Before: NORRIS and COLE, Circuit Judges;
ECONOMUS, District Judge.*
2 Webb v. Comm’r of Social Security No. 03-5158
_________________
COUNSEL
ARGUED: Susan K. Houser, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellant. Kelly L. Ward, Stanville, Kentucky, for Appellee.
ON BRIEF: Susan K. Houser, Thomas M. Bondy, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellant. Eric C. Conn, David L. Williams, Stanville,
Kentucky, for Appellee.
_________________
OPINION
_________________
ALAN E. NORRIS, Circuit Judge. The Commissioner
appeals from the district court’s partial grant of summary
judgment in favor of plaintiff Debbie Webb and from its
reversal of the Commissioner’s denial of supplemental
security income benefits to plaintiff. The district court
premised its decision upon the opinion of this court in
Howard v. Comm’r of Social Security, 276 F.3d 235 (6th Cir.
2002), which it interpreted as mandating reversal. Because
we are unable to agree with the district court’s interpretation
of Howard, we reverse its judgment.
I.
Debbie Webb filed a claim for supplemental security
income with the Social Security Administration on July 21,
1997. Her claim was denied initially and upon
reconsideration. Webb then moved for a hearing on her claim
before an Administrative Law Judge (“ALJ”). ALJ William
H. Gitlow denied the claim in a decision dated November 27,
1998. After determining that Webb could not perform the
work that she had done in the past, the ALJ concluded that the
Commissioner had met her burden of demonstrating that a

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No. 03-5158 Webb v. Comm’r of Social Security 3
significant number of jobs existed in the regional and national
economies for Webb to perform, thus preventing her from
being eligible for supplemental security income benefits.
In denying Webb’s claim, the ALJ relied upon the
testimony of a vocational expert, Donald Joe Woolwine.
Woolwine testified that jobs existed for Webb in the regional
and national economies given her age, education, past work
experience and residual functional capacity. In eliciting
testimony from Woolwine, the ALJ asked the following
hypothetical questions and received the following answers:
Q. I’d like you to assume an individual exertionally
limited to lifting and/or carrying a maximum of 20
pounds occasionally, ten pounds frequently with no
prolonged sitting or standing and no overhead reaching
with the right arm. On such exertional limitations alone,
could such an individual perform any of the claimant’s
past work?
A. No.
Q. Could such an individual perform heavy or medium
work?
A. No.
Q. Could such an individual perform light work?
A. Limited.
Q. Sedentary work?
A. Limited.
Q. I’d like you to assume an individual of claimant’s
age of 44 years, claimant’s eighth grade and GED
education and training, and work experience, and assume
this individual has exertional impairments which limit
this individual to a limited range of light work as set
4 Webb v. Comm’r of Social Security No. 03-5158
forth by my prior hypothetical. Assume this individual
also has nonexertional impairments. This individual may
only occasionally climb or balance and is not to stoop,
crouch, kneel, or crawl. This individual is limited to
simple to moderately complex tasks in a low stress, task-
oriented worksetting. This individual is moderately
limited in ability to maintain concentration and attention
for extended periods. First of all, on these assumptions,
in your opinion are there light and sedentary unskilled
job categories recognized by the Secretary that such an
individual could be expected to be able to perform?
A. Yes.
. . .
Q. If I were to ask you to further assume that this
individual has need to avoid an environment of excessive
dust, fumes, gases, or chemicals, how, if at all, would
that impact upon your previous answers?
A. None.
Webb appealed the ALJ’s denial of her claim to the Appeals
Council, which affirmed the ALJ’s decision on April 20,
2000, making the ALJ’s decision the Commissioner’s final
determination of the claim.
On January 16, 2001, Webb filed a complaint against the
Commissioner in federal district court. The case was referred
to a magistrate judge who issued a report and
recommendation concluding that the ALJ had erred in relying
upon Woolwine’s testimony because it had been elicited
using incomplete hypothetical questions, citing to our opinion
in Howard. The magistrate judge interpreted Howard as
holding that ALJs were only permitted to rely upon
vocational expert testimony regarding the availability of
employment if the hypothetical questions eliciting that
testimony listed the claimant’s medical conditions.

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No. 03-5158 Webb v. Comm’r of Social Security 5
The district court adopted the report and recommendation.
The court agreed that Howard requires hypothetical questions
to include lists of claimants’ medical conditions, although it
found that the reasoning of earlier cases that did not require
such lists was “significantly more convincing.” The
government filed a motion to alter or amend judgment under
Fed. R. Civ. P. 59(e). The district court denied that motion on
November 13, 2002. This appeal followed.
II.
Upon review of our decision in Howard and our prior case
law, we are unable to agree with the district court’s reading
of Howard, and we conclude that its decision must be
reversed. The district court interpreted Howard to require
“that the hypothetical should have expressly referenced the
plaintiff’s diagnosed arthritis.” We read Howard to hold only
that a denial of benefits based upon an ALJ’s improper
calculation of a claimant’s residual functional capacity, a
description of what the claimant “can and cannot do,” must be
reversed. Howard, 276 F.3d at 239. Admittedly, there is
some confusing language in Howard that could conceivably
be viewed as requiring that hypothetical questions include
lists of claimants’ medical conditions. However, we conclude
that, given the facts present in Howard, that language is not
part of its holding, nor can it be so construed if Howard is to
be read to be consistent with the holdings of our prior
decisions.
Under the social security laws, if a claimant concludes that
an ALJ erroneously calculated her residual functional
capacity, she may bring an action against the Commissioner
in federal district court challenging the denial of her benefits.
42 U.S.C. § 405(g). The claimant in Howard mounted
precisely such a challenge, and this court decided that,
because the ALJ had not considered the entirety of the
claimant’s medical record in calculating her residual
functional capacity, the denial of benefits had to be reversed.
As explained in the Howard opinion:
6 Webb v. Comm’r of Social Security No. 03-5158
[T]he ALJ’s selective inclusion of only those portions of
the [medical] report that cast Howard in a capable light
suggests that he only considered part of the report in
formulating his conclusion that Howard “need[s] to
perform work of a simple and relatively nonstressful
nature.” As a result, we conclude that the [residual
functional capacity] does not accurately describe
Howard’s abilities and that the ALJ’s decision, which is
based upon it, is not supported by substantial evidence.
Howard, 276 F.3d at 240-41. That ruling was sufficient for
the Howard court to reverse the Commissioner’s denial of
benefits. By contrast, in the case at bar, Webb does not
challenge ALJ Gitlow’s residual functional capacity
calculation. Accordingly, Howard need not be read to apply
to Webb’s claim.
Webb argues that other language in the Howard opinion
requires that ALJs list claimants’ medical conditions in their
hypothetical questions to vocational experts for those
questions to be considered complete. Webb is correct to
assert that such language exists in Howard. In discussing the
proper content of hypothetical questions, the Howard court
provided the following explanation:
Howard’s [residual functional capacity] is to be an
“assessment of [her] remaining capacity for work” once
her limitations have been taken into account. 20 C.F.R.
§ 416.945. It is an assessment of what Howard can and
cannot do, not what she does and does not suffer from.
The hypothetical question posed to a [vocational expert]
for purposes of determining whether Howard can
perform other work, on the other hand, should be a more
complete assessment of her physical and mental state and
should include an “accurate[] potray[al] [of her]
individual physical and mental impairment[s].” Varley
[v. Sec’y of Health and Human Services], 820 F.2d
[777,] 779 [(6th Cir. 1987)]; Myers v. Weinberger, 514
F.2d 293, 294 (6th Cir. 1975) (per curiam). Thus, while

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No. 03-5158 Webb v. Comm’r of Social Security 7
the [residual functional capacity] should focus on
Howard’s abilities or, in other words, what Howard can
and cannot do, the hypothetical question should focus on
Howard’s overall state including Howard’s mental and
physical maladies.
Id. at 239. The Howard court also concluded that, because
the hypothetical questions in that case did not include a list of
Howard’s “maladies,” the vocational expert’s testimony was
unreliable, and the ALJ’s denial of benefits was erroneous:
The hypothetical question also fails to describe
accurately Howard’s physical and mental impairments,
a defect which, as we have stated, is fatal to the
[vocational expert’s] testimony and the ALJ’s reliance
upon it.
Id. at 241. Finally, the Howard court stated that the ALJ
should have included a listing of the claimant’s medical
conditions in the hypothetical questions he posed to the
vocational expert:
That portion of the hypothetical question drawn from the
medical report . . . is incomplete. It tells us what Howard
can do but tells us nothing about Howard’s ailments.
The ALJ should have included the diagnosis from that
same report which states that Howard suffers from
degenerative disc disease, iron deficiency anemia,
hypertension, and osteoarthritis. The ALJ did find that
Howard suffered from degenerative disc disease and
osteoarthritis. But this finding was not included in the
hypothetical question posed to the [vocational expert] as
it should have been.
Id. Webb’s argument that this language requires us to reverse
the Commissioner’s decision denying her benefits fails. Not
only is that language unnecessary to the outcome in Howard,
but if that language were considered part of Howard’s
8 Webb v. Comm’r of Social Security No. 03-5158
holding, it would impermissibly conflict with our prior
decisions.
A firmly established rule in this circuit prevents a panel of
the court from issuing an opinion overruling a decision of
another panel. Were Howard to be interpreted to require
hypothetical questions to vocational experts to include lists of
claimants’ medical conditions, it would contravene the
holdings of earlier cases of this circuit. In Foster v. Halter,
279 F.3d 348 (6th Cir. 2001), we stated that a hypothetical
question need only reference all of a claimant’s limitations,
without reference to the claimant’s medical conditions.
Foster, 279 F.3d at 356. In Varley v. Sec’y of Health and
Human Servs., 820 F.2d 777 (6th Cir. 1987), a case cited in
Howard, we likewise determined that a vocational expert
need only “take[] into account plaintiff’s limitations.” Varley,
820 F.3d at 780. Except for Howard, Webb can cite no case
requiring that a hypothetical question include a listing of
medical conditions. Consequently, because such an
interpretation would conflict with this circuit’s precedent, we
cannot read Howard to create an entirely new requirement for
hypothetical questions to vocational experts.
Moreover, an interpretation of Howard that would require
vocational experts to evaluate the effect of medical conditions
would be inconsistent with the purpose that vocational experts
serve under social security regulations. Under those
regulations, the ALJ is charged with the responsibility of
evaluating the medical evidence and the claimant’s testimony
to form an “assessment of [her] residual functional capacity.”
20 C.F.R. § 416.920(a)(4)(iv). The vocational expert testifies
on the basis of a claimant’s “residual functional capacity and
. . . age, education, and work experience” and assesses
whether the claimant “can make an adjustment to other
work.” 20 C.F.R. § 416.920(a)(4)(v). The vocational
expert’s testimony is directed solely to whether, given a
claimant’s age, experience, and education, along with the
ALJ’s assessment of what she “can and cannot do,” there
exist a significant number of employment opportunities for

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No. 03-5158 Webb v. Comm’r of Social Security 9
her in the regional and national economies. The vocational
expert is not expected to evaluate the claimant’s medical
conditions in making this determination. Indeed, vocational
experts are not required to have any medical training, so any
evaluation of medical evidence they perform would be
outside their area of expertise. Accordingly, in light of the
facts present in Howard, this circuit’s prior case law, and the
role of a vocational expert under the social security
regulations, we do not read Howard to hold that hypothetical
questions to vocational experts are required to include lists of
claimants’ medical conditions.
III.
For the foregoing reasons, the judgment of the district court
is reversed, and the Commissioner’s denial of benefits is
affirmed.

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