                                                                         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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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

                                         -2-
      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


                                          -3-
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.

                                          -4-
         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

                                            -5-
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

                                          -6-
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




                                        -7-
