                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1692



ESSIE MORGAN,

                                             Plaintiff - Appellant,

           versus


JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL
SECURITY,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CA-03-1578-6-20AK)


Argued:   March 16, 2005                   Decided:   August 5, 2005


Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.


Vacated and remanded with instructions by unpublished opinion.
Judge Williams wrote the majority opinion, in which Judge Luttig
concurred. Judge Gregory wrote a separate opinion concurring in
part and dissenting in part.


ARGUED: William Daniel Mayes, Aiken, South Carolina, for Appellant.
Robert Louis Van Saghi, Assistant Regional Counsel, SOCIAL SECURITY
ADMINISTRATION, Denver, Colorado, for Appellee. ON BRIEF: Frank W.
Hunger, Assistant Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C.; J.
Strom Thurmond, United States Attorney, Christie Newman, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina; Deana R. Ertl-Lombardi, Regional Chief
Counsel, Region VIII, Allan D. Berger, Assistant Regional Counsel,
SOCIAL SECURITY ADMINISTRATION, Office of the General Counsel,
Denver, Colorado, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
WILLIAMS, Circuit Judge:

     Essie Morgan injured her back at work.             Complaining of severe

pain, she had surgery fusing several cervical vertebrae.                    The

surgery, however, did not abate her complaints.                An ALJ denied

Morgan’s application for Social Security benefits, and the district

court affirmed.       Morgan now appeals.

     We conclude that because of faulty hypothetical questions the

ALJ posed to the vocational expert, the record lacks substantial

evidence to support the ALJ’s finding that jobs exist in the

national    economy    for   someone    with   Morgan’s    impairments.     We

therefore    vacate    and   remand    the   district    court’s   order   with

instructions to vacate and remand the ALJ’s order.             On remand, the

ALJ must reevaluate Morgan’s residual functional capacity (RFC),

and accept such additional testimony as may be necessary to decide

whether relevant jobs exist.

     Because, however, the ALJ’s errors, if any, with respect to

the application of the treating physician rule were harmless, and

the ALJ’s decisions discrediting Morgan’s allegations and the

responses of Morgan’s husband and daughter were supported by

substantial evidence, the ALJ need not reevaluate his decision on

these matters on remand.




                                        3
                      I.    Factual Background

     Morgan was employed as a cashier at a convenience store in

Aiken, South Carolina.     In March 2000, she hurt her back scanning

a twelve-pack at work.        She visited Dr. Douglas Holford, an

orthopedic surgeon, who, in April 2000, performed surgery on Morgan

removing two discs and fusing three cervical vertebrae.         Under Dr.

Holford’s care, Morgan returned to light-duty, part-time work.          In

August 2000, Morgan began complaining of pain in her lower back and

legs, and Dr. Holford’s first impression was that the pain was

caused by degenerative disc disease and sciatica.           Nevertheless,

Dr. Holford authorized her to increase to moderate-duty, full-time

work.

     Morgan continued complaining of pain, and in January 2001, Dr.

Holford referred Morgan to Dr. William Kirkley, an orthopedist, for

testing.   Dr.   Kirkley   concluded   from   the   tests   results   that

Morgan’s pain was “subjective,” (R. at 171), and was not caused by

her underlying condition.     In February 2001, Morgan quit her job.

Dr. Holford later ordered a Functional Capacity Exam (FCE) to test

Morgan’s functional restrictions.      The FCE indicated that although

Morgan’s functional ability was limited, she could nevertheless

work an eight-hour day.

     On March 20, 2001, Morgan filed applications for Social

Security benefits.    At the hearing on Morgan’s claim, the ALJ

admitted evidence as to the scope of Morgan’s impairment. The most


                                   4
salient     pieces    of   evidence        were     the   FCE,    Drs.   Holford’s      and

Kirkley’s reports, Morgan’s testimony, and written responses to

questionnaires completed by Morgan’s husband and daughter. The ALJ

also accepted testimony from a vocational expert, who testified

regarding the availability of jobs in the national economy.

      After weighing this evidence, the ALJ denied Morgan’s claim.

The   Appeals      Counsel    affirmed       the     ALJ’s      decision,   as    did   the

district court. Morgan now appeals, and we have jurisdiction under

28 U.S.C.A. § 1291 (West 1993).



                                    II.    Discussion

      Morgan argues that: (1) the vocational expert’s testimony was

insufficient evidence on which the ALJ could conclude the national

economy had jobs for someone with her functional restrictions; (2)

the   ALJ    improperly       applied       the     treating       physician     rule   in

discrediting the opinion of Dr. Holford; (3) the record lacked

substantial        evidence   upon        which    the    ALJ    could   discredit      her

allegations of disabling pain; and (4) the ALJ erred in rejecting

the written questionnaire responses submitted by Morgan’s husband

and daughter regarding her pain.

      We    must    uphold    the    ALJ’s        factual    findings    “if     they   are

supported     by     substantial      evidence        and       were   reached    through

application of the correct legal standard.”                       Craig v. Chater, 76

F.3d 585, 589 (4th Cir. 1996).                    “Substantial evidence is ‘such


                                             5
relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Id. (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971)). “It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.”               Laws

v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).               “In reviewing

for substantial evidence, we do not . . . reweigh conflicting

evidence, make credibility determinations, or substitute” the ALJ’s

judgment with our own.            Craig, 76 F.3d at 589.

       With these principles in mind, we address Morgan’s arguments

in turn.



                    A.    The Vocational Expert’s Testimony

       Morgan first argues that her FCE reveals that her functional

capacity is more limited than the hypotheticals the ALJ posed to

the vocational expert, and that this fact resulted in the record

lacking any relevant evidence on the question of whether she could

engage in work that exists in the national economy.              We agree.

       The parties concede that the ALJ properly resolved the first

four       steps   of    the   Social   Security   Administration’s   five-step

sequential evaluation process.1                The fifth step, however, is in


       1
        In relevant part, the Code of Federal Regulations provides:

       At the first step, we consider your work activity, if
       any. If you are doing substantial gainful activity, we
       will find that you are not disabled. . . .

       At the second step, we consider the medical severity of

                                           6
dispute.       The claimant is disabled at the fifth step if the ALJ

determines that the claimant cannot “engage in any . . . kind of

substantial gainful work which exists in the national economy.”2

42 U.S.C.A. § 423(d)(2)(A) (West 2003).

       To    decide   whether    the    claimant    is   disabled   under   this

standard, the ALJ must proceed in a two-tiered analysis.                 The ALJ

must       first   determine    the    claimant’s    RFC.     See   20    C.F.R.




       your impairment(s). If you do not have a severe medically
       determinable physical or mental impairment that meets the
       duration requirement in [20 C.F.R.] § 404.1509, or a
       combination of impairments that is severe and meets the
       duration requirement, we will find that you are not
       disabled. . . .

       At the third step, we also consider the medical severity
       of your impairment(s). If you have an impairment(s) that
       meets or equals one of our listings in appendix 1 of this
       subpart and meets the duration requirement, we will find
       that you are disabled. . . .

       At the fourth step, we consider our assessment of your
       residual functional capacity and your past relevant work.
       If you can still do your past relevant work, we will find
       that you are not disabled. . . .

       At the fifth and last step, we consider our assessment of
       your residual functional capacity and your age,
       education, and work experience to see if you can make an
       adjustment to other work. If you can make an adjustment
       to other work, we will find that you are not disabled. If
       you cannot make an adjustment to other work, we will find
       that you are disabled.

 20 C.F.R. § 404.1520(a)(4)(i-v) (2004).
       2
       The “national economy” is defined as “the region where [the
claimant] lives or in several regions in the country.” 20 C.F.R.
§ 404.1560(c)(1) (2004).

                                         7
§ 404.1520(a)(4)(v), (e) (2004).3    The “RFC is an assessment of the

individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing

basis.”   Social Security Ruling (SSR) 96-8p at *1.     To determine

the claimant’s RFC, the ALJ must consider the relevant medical

evidence and other evidence of the claimant’s condition in the

record, including testimony from the claimant and family members.

20 C.F.R. § 404.1529(c)(3) (2004).

     The ALJ must then decide the ultimate issue of whether the

Commissioner has satisfied her burden of showing that the claimant

can engage in a job that “exist[s] in significant numbers in the

national economy.”   20 C.F.R. § 404.1560(c)(1) (2004); 20 C.F.R. §

404.1560(c)(2) (providing that the Commissioner bears the burden at

the second tier of step five); Wilson v. Heckler, 743 F.2d 218, 220

(4th Cir. 1984) (same).   In deciding whether the Commissioner has

met her burden, the ALJ generally must accept evidence from a

vocational expert, who, based on the claimant’s age, education,

work experience, and RFC, testifies whether there are jobs for such



     3
       It is more precise to say that the claimant’s RFC is
determined after step three--when the ALJ determines whether the
claimant’s condition meets a listed impairment, see 20 C.F.R. §
404.1520(a)(4)(iii) (2004)--and that it is first applied at step
four--when the claimant must prove that she is unable to do past
relevant work, see 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is then
used again at step five. See SSR 96-8p *2. The Commissioner does
not argue that Morgan was unable to do past relevant work. We,
like the parties, therefore focus on the RFC only as it relates to
step five.

                                 8
a person in the national economy.   See 20 C.F.R. § 404.1520(g)(1).

The Commissioner can show that the claimant is not disabled only if

the vocational expert’s testimony that jobs exist in the national

economy is in response to questions from the ALJ that accurately

reflect the claimant’s work-related abilities.      See Walker v.

Bowen, 889 F.2d 47, 50 (4th Cir. 1989).4

     In this case, after considering the evidence presented, the

ALJ relied primarily on the FCE in deciding Morgan’s RFC.   (R. at

15 (“I give greater weight to the results of actual testing[, i.e.,

the FCE,] than I do the opinion of Dr. Holford, especially in light

of Dr. Kirkley’s opinion.” ).) The FCE determined, in relevant

part, that Morgan was not able to do full time “sedentary” work,

but she could work a full 8-hour day only if the job required her

to sit, stand, walk, or climb each for no more than 1/3 of the day,

or, in other words, she could do each activity for no more than 2

hours and 40 minutes per day.       In determining Morgan’s RFC,

however, the ALJ found that Morgan was not able to do full-time

“sedentary” work, but she could work a full 8-hour day at a




     4
       If the claimant’s RFC reveals that she has the functionality
to do a particular category of work, “sedentary” or “light,” for
example, without further restrictions, the ALJ need not question a
vocational expert. Instead, the ALJ may consult the grids found in
20 C.F.R. Part 404, subpart P, Appendix 2 (2004).         Wilson v.
Heckler, 743 F.2d 218, 222 (4th Cir. 1984). Because Morgan’s RFC
was “sedentary” with restrictions, the grids were inapplicable and
testimony from a vocational expert was required. Id.

                                9
“sedentary” job if the job also allowed her to have a “sit/stand

option.”    (R. at 16.)

     Morgan contends that the FCE’s sit, stand, walk, or climb

combination is more restrictive than the RFC’s “sit/stand option.”

We agree.    Whatever a “sit/stand option” is, it provides only for

sitting and standing, and, even interpreted in the manner most

consistent with the FCE, it still provides that Morgan may sit or

stand for 1/2 of an 8-hour day, or 4 hours.   The “sit/stand option”

would therefore require Morgan to sit and stand significantly

longer than the restrictions indicated by the FCE.

     The ALJ’s error with respect to Morgan’s RFC, moreover,

translated into deficient hypotheticals the ALJ posed to the

vocational expert.    Each of the ALJ’s hypotheticals assumed that

Morgan could work a full eight-hour day alternating sitting and

standing.    (R. at 56-57.)   According to the FCE, however, Morgan

must also have the ability to walk or climb for 1/3 of the day in

order to complete a full eight-hour workday.         The vocational

expert’s testimony that the national economy has a significant

number of jobs for an employee who is able to work a full eight-

hour day alternating sitting and standing was therefore incapable

of producing a reliable assessment of relevant work opportunities

for Morgan.    See Walker, 889 F.2d at 50.




                                 10
                      B.     Dr. Holford’s Opinions

     Morgan next argues that the ALJ erred in failing to credit the

opinions of Dr. Holford under the treating-physician rule. For the

reasons    that   follow,    we    hold    that   the    FCE      was    substantial

evidentiary support for the               ALJ’s decision to discredit Dr.

Holford’s legal conclusions and that even if the ALJ erred in

rejecting what we will assume is Dr. Holford’s medical opinion,

such error was harmless.

     The Code of Federal Regulations draws a distinction between a

physician’s medical opinions and his legal conclusions.                        “Medical

opinions    are   statements      from    physicians     .    .    .    that   reflect

judgments   about   the     nature   and      severity   of       [the   claimant’s]

impairment(s), including . . . symptoms, diagnosis and prognosis,

what [the claimant] can still do despite impairment(s), . . . and

[the claimant’s] physical or mental restrictions.”                       20 C.F.R. §

404.1527(a)(2) (2004).       Legal conclusions, on the other hand, are

opinions on issues reserved to the ALJ, such as “statements[s] by

a medical source that [the claimant is] ‘disabled’ or ‘unable to

work.’” 20 C.F.R. § 404.1527(e)(1).               While the ALJ must give a

treating physician’s medical opinions special weight in certain

circumstances, Craig, 76 F.3d at 590 (holding that a treating

physician’s medical opinion must be given controlling weight only

when it “is well supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the


                                         11
other substantial evidence” in the record (quoting 20 C.F.R. §

404.1527(d)(2))), the ALJ is under no obligation to give a treating

physician’s legal conclusions any heightened evidentiary value. See

20   C.F.R.   §    404.1527(e)(3)    (“We   will   not   give   any   special

significance to . . . [a treating physician’s legal conclusions].

. . . “).         The ALJ is not free, however, simply to ignore a

treating physician’s legal conclusions, but must instead “evaluate

all the evidence in the case record to determine the extent to

which the [treating physician’s legal conclusion] is supported by

the record.”      SSR 96-5p at *3.

      In her brief, Morgan points to four opinions given by Dr.

Holford: (1) “she probably qualifies for disability,” (R. at 293);

(2) “[h]er functional capacity evaluation basically figures that

she can’t work a total of an 8 hour day,” (R. at 292);           (3) “[s]he

can possibly do modified duty [from her cashier job] but it would

probably be a 4 hour day,”     (R. at 293.); and (4) “it would be hard

[for her] to sit or stand for a 5 hour day.”5            (R. at 317.)     The

ALJ discredited Dr. Holford’s opinions, noting that



      5
      The dissent chides us for focusing only on these four
statements, but Morgan cites only these statements in her brief to
support her argument that the ALJ erred by failing to apply the
treating physician rule. Moreover, while the dissent’s summary of
Morgan’s medical condition is accurate, it is also not relevant to
the issue presented on appeal. That summary tends to show that
Morgan’s impairment is severe, as required at step two of the five-
step evaluation process, but it shows nothing new as to the impact
of Morgan’s impairment on her functional capacity, as required at
step five.

                                     12
     statements that a claimant is ‘disabled’, “unable to
     work,” can or cannot perform a past job . . . or the
     like are not medical opinions but are administrative
     findings dispositive of a case, requiring familiarity
     with the [Code of Federal Regulations] and legal
     standards set forth therein. Such issues are reserved to
     the Commissioner. . . . Opinions on issues reserved to
     the Commissioner, such as [those] of Dr. Holford, can
     never be entitled to controlling weight. . . . I give
     greater weight to the results of actual testing[, i.e.,
     the FCE,] than I do the opinion of Dr. Holford.


(R. at 15.)    The ALJ did not err in concluding that at least the

first three of Dr. Holford’s opinions were legal conclusions and

were thus deserving of no special weight.   Dr. Holford’s first two

opinions--that Morgan was “disabled” and that she “can’t work” an

8 hour day--are clearly legal conclusions.       See 20 C.F.R. §

404.1527(e)(1).    Dr. Holford’s third opinion is also a legal

conclusion: an opinion that Morgan cannot complete the duties of

her previous job is merely a legal conclusion on an issue reserved

for the ALJ at the fourth step of the sequential evaluation

process.   See 20 C.F.R. § 404.1520(a)(4)(iv) (“At the fourth step

. . . . [i]f you can still do your past relevant work, we will find

that you are not disabled.”).    Moreover, the FCE was substantial

evidence to support the ALJ’s decision to discredit these legal

conclusions.

     It is a closer question whether Dr. Holford’s fourth opinion--

that “it would be hard [for Morgan] to sit or stand for a 5 hour

day”--is a medical opinion.     Even assuming, however, that this

opinion is a medical opinion due special weight under the treating-

                                13
physician rule, any error in failing to credit this opinion was

harmless. The    ALJ   attempted   to    adopt   the   FCE   in   determining

Morgan’s RFC.    As Morgan herself recognizes, however, the FCE does

not materially contradict Dr. Holford’s (assumed) medical opinion.

Dr. Holford’s opinion was that Morgan would have difficulty sitting

and standing for more than 5 hours.           Nothing in his opinion is

meaningfully contradicted by the FCE’s determination that Morgan

could not sit and stand for more than 2/3 of an 8-hour day, or 5

hours and 20 minutes, but that she could also walk or climb the

remainder of the 8-hour workday.         Any error the ALJ may have made

in   rejecting   Dr.   Holford’s   medical       opinion,    which   provided

essentially the same time restriction on sitting and standing as

the FCE, was therefore harmless.6         Cf. Ngarurih v. Ashcroft, 371

F.3d 182, 190 n.8 (4th Cir. 2004) (“While the general rule is that

an administrative order cannot be upheld unless the grounds upon

which the agency acted in exercising its powers were those upon

which its action can be sustained, reversal is not required where

the alleged error clearly had no bearing on the procedure used or




     6
      In characterizing our analysis of this issue as internally
contradictory, the dissent reveals a misunderstanding of the
harmless error doctrine. For purposes of that doctrine, it would
not make a difference if in fact “the FCE is an entirely inadequate
substitute for Dr. Holdford’s medical opinions” as the dissent
contends.   Post at 28.   What matters is whether the FCE itself
contains findings that are materially indistinguishable from Dr.
Holford’s assumed medical opinion. Even the dissent does not argue
that it does.

                                    14
the substance of the decision reached.”           (internal quotation marks

omitted)).



                           C.   Morgan’s Testimony

     Morgan also argues that the sources on which the ALJ relied to

discredit her own testimony regarding the disabling nature of her

pain were not substantial evidence.        For the following reasons, we

hold that the opinion of Dr. Kirkley and the FCE were substantial

evidentiary support for the ALJ’s decision to discredit Morgan’s

testimony.

     In evaluating claims of disabling pain, the ALJ must proceed

in a two-part analysis.         First, because pain alone, no matter how

disabling, cannot create a “disability” under the Social Security

Act without an underlying medical condition that causes the pain,

the ALJ must determine whether the claimant has produced medical

evidence     of   a   “medically   determinable    impairment    which   could

reasonably be expected to produce . . . . the actual pain, in the

amount and degree, alleged by the claimant.”          Craig, 76 F.3d at 594

(emphasis added).       It is important to note that while the claimant

must introduce objective medical evidence of an impairment, the

evidence must only demonstrate that the impairment reasonably could

be expected to produce the pain alleged.           Id. at 595.   Second, if,

and only if, the ALJ finds that the claimant has produced such

evidence, the ALJ must then determine, as a matter of fact, whether


                                      15
the claimant’s underlying impairment actually causes her alleged

pain.   Craig, 76, F.3d at 595.   The ALJ need not find either that

the claimant’s pain is real, or, if he finds that it is real, that

it is caused by her underlying medical condition if such findings

are “inconsistent with the available evidence.”     Id.

     Here, the ALJ concluded that the objective evidence revealed

that Morgan’s medical condition could reasonably be expected to

produce the pain she alleged, and thus analyzed whether her medical

condition actually produced the allegedly disabling pain.        In

discrediting Morgan’s allegations of pain, the ALJ relied on

“[Morgan’s] activities, particularly her hobbies of needlepoint,

crochet, etc.; the lack of frequent emergency room visits or

hospitalizations for pain; the absence of significant side-effects

attributable to medication, the results of [the FCE], and the

opinions of Drs. Kirkley and Holford.”     (R. at 16.)

     Dr. Kirkley opined that

     [Morgan’s] MRI really didn’t show anything that I think
     would explain her symptoms. . . . I told her I could
     give her a note to be out of this work indefinitely
     because of complaints of pain but strictly speaking and
     on an objective basis I can find no reason why she
     theoretically could not do the job.     It is true that
     people do have chronic pain and that it does sometimes
     keep   an  individual   from   being   able   to  work.
     Unfortunately, the complaint is subjective. . . .

(R. at 171 (emphasis added).)          Although Dr. Kirkley did not

question Morgan’s subjective experience of pain, he also believed

that her pain was not caused by her underlying condition.   The fact


                                  16
that Dr. Kirkley authorized Morgan’s absence from work based on her

complaints of pain in no way casts doubt on his belief that

Morgan’s condition did not produce her pain.         And while it is true

that Dr. Kirkley gave his opinion about the source of Morgan’s pain

more than a year before she gave her testimony, Morgan has pointed

to no additional objective evidence submitted after Dr. Kirkley

gave his opinion that would call his opinion into doubt by linking

her pain with her underlying condition. Moreover, the FCE concluded

that Morgan was able to work an entire 8-hour day.          Because the FCE

measures a claimant’s functionality, which takes account of her

pain,    the   FCE,   like   Dr.   Kirkley’s   opinion,   also   contradicts

Morgan’s allegations of pain.

     We believe that, given Dr. Kirkley’s opinion and the FCE, the

ALJ’s decision to discredit Morgan’s allegations of pain was

supported by substantial evidence. Even assuming the ALJ erred in

crediting the other evidence contradicting Morgan’s allegations--

her activities, her lack of hospitalizations, the absence of

significant side-effects, and the opinion of Dr. Holford--this

error was therefore harmless.         See Ngarurih, 371 F.3d at 190 n.8.



                 D.   Morgan’s Husband’s and Daughter’s
                       Responses to Questionnaires

        Finally, Morgan argues that the ALJ impermissibly discredited

the questionnaire responses submitted by her husband and daughter

on the basis of inherent familial bias.              While we agree with

                                      17
Morgan’s argument in principle, we would not reach the issue here,

because the ALJ did not, in fact, discredit the observations of

Morgan’s family members solely because of                      inherent familial bias.

      In the order denying Morgan’s claim, the ALJ found, in part

because of Dr. Kirkley’s opinion and the FCE, that “the allegations

of disabling pain . . . [were not] credible.”                      (R. at 16 (emphasis

added).)      The ALJ gave no indication that “the allegations” of

disabling     pain       to   which    he   was    referring      were   only      Morgan’s

allegations, and not also the allegations of Morgan’s husband and

daughter.          Indeed, the most natural reading of the indefinite

article “the” is that it refers to all, not just some, of the

allegations        of    pain.        We    believe,     therefore,      that      the    ALJ

discredited the questionnaire responses for the same reasons he

rejected Morgan’s own testimony; i.e., Dr. Kirkley’s opinion that

Morgan’s underlying condition did not cause her pain and the FCE

indicating that Morgan maintained the functional capacity to work

an 8-hour day.            And as we concluded with respect to Morgan’s

testimony, any error the ALJ made in crediting the other evidence

on   which    the       ALJ   relied--here,        her    activities,        her   lack   of

hospitalizations, the absence of significant side-effects, the

opinion of Dr. Holford, and inherent familial bias--was harmless,

because      Dr.    Kirkley’s     opinion         and    the    FCE   were    substantial

evidentiary support for the ALJ’s decision to discredit Morgan’s

husband’s and daughter’s observations.


                                              18
                           III. Conclusion

     We therefore vacate and remand the district court’s order with

instructions for the district court to vacate and remand the ALJ’s

order.   On remand, the ALJ should, in a manner consistent with this

opinion,   redetermine   Morgan’s    RFC   and,   if   required,   accept

additional evidence to determine whether relevant jobs exist for

Morgan in the national economy.



                             VACATED AND REMANDED WITH INSTRUCTIONS




                                    19
GREGORY, Circuit Judge, concurring in part and dissenting in part:

      I   agree   with   my   good   colleagues   that   the       hypothetical

questions submitted to the vocational expert were flawed, so the

vocational expert’s testimony cannot serve to support a finding

that Morgan is not disabled.         However, I must respectfully dissent

from the remainder of the majority opinion.



                                       I.

      The ALJ discounted Dr. Holford’s opinion by finding that, “I

give greater weight to the results of [the FCE’s] actual testing

than I do the opinion of Dr. Holford, especially in light of Dr.

Kirkley’s opinion.”      Tr. 15.     Morgan challenges this, and I agree

that it materially misapplies the Commissioner’s regulations and is

not supported by substantial evidence.

      The majority, instead, ignores the bulk of medical evidence

Dr.   Holford     submitted   and    suggests   that   only    a    few   select

statements are at issue here.         It then dismisses three of the four

selected statements as legal opinions.          This misses the forest for

the trees:      the record contains notes Dr. Holford submitted from

some 19 visits, replete with medical impressions and opinions about

Morgan’s condition.      The majority then claims that any remaining

discounting of Dr. Holford’s medical opinions was at best harmless

error because it was similar to the FCE.          This cannot be correct.




                                       20
                                    A.

     From the majority opinion one would never know the full range

of medical evidence Dr. Holford submitted in this case.          From his

records in the district court transcript (“Tr.”) we learn the

following: After an emergency room visit and several examinations,

on April 5, 2000 Dr. Holford found Morgan in “a lot of pain” and

diagnosed her with a “C5-6 disc and spondylolisthesis at C6-7,” Tr.

at 308.   On April 18, 2000, he removed her C5-6 and C6-7 discs and

fused her vertebrae from C5 through C7 with anterior plating.           Dr.

Holford prescribed medication and directed therapeutic exercises.

By the end of May, he concluded that Morgan was doing “fair” and

could return to light work in about four weeks.             Tr. 303.    Dr.

Holford   continued   to   see   Morgan    throughout   that   summer   and

prescribed medication and more exercises.

     Morgan’s pain did not abate.        In fact, after trying to grab an

item that fell off of a shelf, she returned to the emergency room

on June 17, 2000.     She still performed light work, but complained

of pain in her shoulders.        On August 30, 2000, Dr. Holford noted

that after squatting to stock a shelf at work, Morgan had developed

lower back pain which radiated into her left leg.                An x-ray

revealed “degenerative changes of the lumbar spine, mainly at 3-4

and at the thoracal lumbar junction.”       Tr. 298.    His impression was

that Morgan suffered from sciatica and degenerative disc disease

and he prescribed medication.       On September 20, 2000 Dr. Holford


                                    21
felt that Morgan could gradually increase to working 40 hours per

week with moderate duties.              By late January of 2001, however,

Morgan still complained bitterly of pain and tenderness in her back

and neck.         On January 30, 2001, Dr. Holford tested her range of

motion and found “demonstrable weakness” in several areas.                       Tr.

296.       He ordered an MRI.1       On February 19, 2001, Dr. Holford noted

that the MRI revealed multiple degenerative discs.                     Dr. Holford

felt Morgan’s job, which included “bending and stooping while

trying       to    protect    her    [surgically    repaired]        neck   probably

aggravated a pre-existing condition.”               Tr. 295.     He set up more

tests.2

       On    March    20,    2001,   Morgan    returned   to   Dr.    Holford,   who

reviewed the new tests, found Morgan with pain and tenderness in

her back, diagnosed her with radiculopathy and axonal neuropathy,

recommended epidural steroids, and kept her off of work.                         Dr.

Holford stated that her “[p]rognosis is guarded,” Tr. 294, and

noted that she may qualify for disability for neck and lumbar spine

disease.          The steroids evidently offered some short-term aid, but

Morgan still experienced pain.                By April 18, 2001, Dr. Holford


       1
      The MRI was conducted on February 9th by Dr. G. Paul Forsyth.
Dr. Forsyth’s impressions from the MRI were that Morgan had bulging
discs throughout the lumbar area and some joint space narrowing but
no disc fragment, spinal stenosis, or nerve compression.
       2
      Dr. Melvyn L. Haas subsequently administered electro-
diagnostic studies on February 28, 2001. His impression was “S1
radiculopathy, bilateral” and “early axonal neuropathy.” Tr. 166.


                                          22
found that Morgan had reached maximum medical improvement and had

a “permanent impairment,” but could possibly do “modified duty” for

a 4-hour day if it involved intermittent standing, sitting and

twisting.        Tr. 293.3

      Dr. Holford also recommended the FCE and, on August 15, 2001,

reviewed it.        He observed that she was “up and down,” Tr. 292, and

noted that Morgan’s FCE “basically figures that she can’t work a

total of an 8 hour day.4            She can’t work for more than 4 hours.”

Id.       He    thought    that   Morgan    qualified    for   disability   “under

cervical and lumbar disc disease.               She has an inability to sit,

bend, stoop, or twist long enough to work in an 8 hour day.”                   Id.

Later, on January 28, 2002, Dr. Holford again noted Morgan’s back

and neck pain and prescribed more medication.                  After a March 14,

2002 final evaluation, he indicated that Morgan “[s]till hurts

quite a bit[,]” and had difficulty bending, stooping, twisting,

straightening, and lifting.                Tr. 317.      He found that she had

reached        maximum    medical   improvement    and    that   she   would   have




      3
      On June 11, Morgan again reported to the emergency room and
was given “trigger-point” injections for her back pain.
      4
      Specifically, the cover letter to Dr. Holford from the
rehabilitation center indicated that Morgan “is able to work at the
“NO CLASSIFICATION Physical Demand Level for an 8 hour day . . . .”
and that “[h]er specific acceptable Leg Lift capability was 0 lbs.
and Torso Lift capability was 0 lbs.” Tr. 290. The letter went on
to state that Morgan “exhibited minimal symptom/disability
exaggeration behavior by our criteria. . . .” Id.

                                           23
difficulty sitting or standing for a five-hour day. He also stated

that “I think she qualifies for disability.”   Id.

     All this, of course, is significantly different from the

conclusory assertions the majority selects and dismisses.    Merely

because Dr. Holford at one point made some legal conclusions does

not, of course, poison the many other medical opinions.     And the

striking picture painted by Dr. Holford’s medical impressions and

opinions simply cannot be ignored.



                                B.

     An examining physician’s opinions are given more weight than

the opinion of one who has not examined the claimant, 20 C.F.R.

§ 404.1527(d)(1), and a treating physician’s opinion is especially

valuable because such doctors

     are likely to be the medical professionals most able to
     provide a detailed, longitudinal picture of your medical
     impairment(s) and may bring a unique perspective to the
     medical evidence that cannot be obtained from the
     objective medical findings alone or from reports of
     individual    examinations,   such    as    consultative
     examinations or brief hospitalizations.

Id. § 404.1527(d)(2).   This subsection of the regulations goes on

to explain that:

     If we find that a treating source’s opinion on the
     issue(s) of the nature and severity of your impairment(s)
     is well-supported by medically acceptable clinical and
     laboratory diagnostic techniques and is not inconsistent
     with the other substantial evidence in your case record,
     we will give it controlling weight.



                                24
Id.       Even   when   a   treating    physician’s   opinion   is   not   given

“controlling” weight it can still receive much more weight than

other classes of evidence:         “When the treating source has seen you

a number of times and long enough to have obtained a longitudinal

picture of your impairment, we will give the source’s opinion more

weight than we would give it if it were from a nontreating source.”

Id. § 404.1527(d)(2)(I).         Further,

      the more knowledge a treating source has about your
      impairment(s) the more weight we will give to the
      source's medical opinion. We will look at the treatment
      the source has provided and at the kinds and extent of
      examinations and testing the source has performed or
      ordered from specialists and independent laboratories.

Id. § 404.1527(d)(2)(ii); see Mastro v. Apfel, 270 F.3d 171, 178

(4th Cir. 2001) (explaining § 404.1527(d)(2)).5

      In addition, § 404.1527(d)(3) states that:

      The more a medical source presents relevant evidence to
      support an opinion, particularly medical signs and
      laboratory findings, the more weight we will give that


      5
      With regard to evaluating treating sources                 versus    non-
treating sources, this court has held that:

      “[i]f we find that a treating source’s opinion on the
      issue(s)   of  the   nature   and   severity   of   [the]
      impairment(s) is well supported by medically acceptable
      clinical and laboratory diagnostic techniques and is not
      inconsistent with the other substantial evidence in [the]
      case record, we will give it controlling weight.” By
      negative implication, if a physician's opinion is not
      supported by clinical evidence or if it is inconsistent
      with other substantial evidence, it should be accorded
      significantly less weight.

Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (quoting 20
C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2)).

                                       25
       opinion . . . .      Furthermore, because nonexamining
       sources have no examining or treating relationship with
       you, the weight we will give their opinions will depend
       on the degree to which they provide supporting
       explanations for their opinions.

Id.    Finally, the more consistent an opinion is with the record as

a whole, the more weight it deserves, id. § 404.1527(d)(4), and

specialists operating in their field of specialty receive more

weight than those of non-specialists.             Id. § 404.1527(d)(5).



                                        C.

       Under these regulations, Dr. Holford surely stands alone as

the source whose opinions should receive the greatest weight.               He

is a specialist, and his opinions are plainly based upon far more

than       mere   recitations   of   subjective   statements   of   pain:   he

conducted spinal surgery on Morgan, repeatedly and personally

examined her and ordered, reviewed, and relied upon medical tests.6

He monitored Morgan’s rehabilitation and prescribed pain medication

for a significant period of time.            Indeed, the record indicates

that he saw her some 19 times -- much more frequently during the

time in question than any other person who submitted evidence

outside of Morgan’s immediate family.             In short, here Dr. Holford



       6
      The ALJ’s implicit idea that Holford never administered
“actual testing” during many examinations of Morgan flatly ignores
the record. Dr. Holford conducted numerous physical exams, see,
e.g., Tr. 296, 298, 310, 317, and reviewed neurological exams, 299,
X-ray tests, Tr. 298, 300-02, 310, MRIs, Tr. 295, 304, and nerve-
conduction tests, Tr. 294.

                                        26
is uniquely positioned to provide precisely the type of “detailed,

longitudinal picture” of Morgan’s medical impairments that we must

value highly. Id. § 404.1527(d)(2). This long-term perspective is

especially valuable in this kind of case, where a claimant proffers

variable levels of pain from a severe impairment that could cause

-- but may not necessarily result in -- debilitating, disabling

pain.    In such cases “snapshot” examinations are especially likely

to mislead and “moving pictures” provided from records of long-term

treating relationships are especially probative.      To the extent

that his opinion differs from the FCE -- a product of a single

day’s examination by a non-treating occupational therapist -- the

ALJ was exactly backwards; Holford’s opinions must merit more

weight.7

     Regarding the ALJ’s discounting of Dr. Holford’s medical

opinions,8 the majority claims that any error was harmless because


     7
      Dr. Holford’s medical opinions are also “consistent with the
record as a whole.”     20 C.F.R. § 404.1527(d)(4).   Dr. Forsyth
performed an MRI which revealed bulging lumbar disc material on
multiple levels.      Dr. Haas also diagnosed Morgan with S1
radiculopathy, bilateral and early axonal neuropathy. While Dr.
Kirkley did not believe that these tests provided an objective
explanation and termed Morgan’s lower back pain “chronic
mechanical,” he also found Morgan’s claims of pain sufficiently
credible to remove her from work indefinitely. Moreover, Morgan
testified that her pain had increased dramatically since she saw
Kirkley over a year ago.     Taken together, this all complicates
Kirkley’s brief note sufficiently that they simply cannot count as
substantial evidence to trump Holford’s medical opinions.
     8
      I freely agree that certain of Holford’s opinion are legal
opinions, which the ALJ need not accept uncritically. But I must
reemphasize, in case it is not perfectly clear, that such opinions

                                  27
of the FCE, which the ALJ “attempted to adopt.”           Ante at 14.    The

majority’s    awkward   phrasing   reveals    problematic    reasoning   and

internal contradictions.      The majority frankly admits that the ALJ

materially misinterpreted the FCE to Morgan’s detriment.             See ante

pp. 9-10.9      That is, the ALJ explicitly used the FCE to discount

Dr. Holford’s opinions (because, in supposed contrast, it involved

“actual testing”), Tr. 15, while the majority finds it sufficiently

redundant with Dr. Holford’s “(assumed)” medical opinion to make

discounting Dr. Holford’s opinion harmless error.              Ante at 14.

Both propositions cannot be concurrently right; in fact, both are

quite wrong.     The FCE’s results do overlap to some extent with Dr.

Holford’s findings.     But to the extent they are similar, the FCE is

an   entirely    inadequate   substitute     for   Dr.   Holford’s   medical

opinions.    Thus it cannot be harmless error.       Moreover, the ALJ did

not view the two as similar, and so at a bare minimum the remand

must be accompanied with instructions to construe the FCE as fully

supporting Dr. Holford’s opinions.         To the extent the two differ,

for the reasons I have explained above, the FCE cannot possibly

trump Dr. Holford.




are few among many strongly supported medical opinions.
      9
      Indeed, the ALJ did not stop there but went on and, shall we
say, “attempted to” wield the FCE to discredit both Morgan and (in
the majority’s mind, at least) her family members. See ante at pp.
16-18.

                                    28
     I would thus grant the medical opinions submitted by Dr.

Holford significant, appropriate deference.



                                        II.

      The ALJ, while recognizing that “[t]he medical evidence in

this case does establish the existence of a medically determinable

impairment which is capable of producing” Morgan’s symptoms, Tr.

15, nonetheless did not find Morgan’s testimony of disabling pain

and limited functional capacity credible.                The explanation was

based on:

     [c]onsidering the claimant’s activities, particularly her
     hobbies of needlepoint, crochet, etc.; the lack of
     frequent emergency room visits or hospitalizations for
     pain;   the   absence    of   significant    side-effects
     attributable to medication, the results of formal
     functional capacities evaluation in June 2001, and the
     opinions of Drs. Kirkley and Holford.

Tr. 16.

     This explanation reveals important errors and is not supported

by substantial evidence.            First, it is difficult to imagine more

benign    and   gentle     hobbies     than   the    occasional    practice   of

needlepoint and crochet.            Morgan testified that her pain varied,

and that she only engaged in her hobbies “probably 45 minutes” on

“a real good day” but never on a bad day.             Tr. 51-52.     Of course,

a   claimant    need     not   be    constantly     bedridden   or   completely

incapacitated to be found disabled.           See Trotten v. Califano, 624

F.2d 10, 11-12 (4th Cir. 1980) (“An individual does not have to be


                                         29
totally helpless or bedridden in order to be found disabled under

the   Social   Security   Act,   otherwise,   the   ability   to    perform

substantial gainful activity even one day each month or each year

would disqualify an individual for benefits.” (citations omitted));

see also Waters v. Bowen, 709 F. Supp. 278, 284 (D. Mass. 1989)

(collecting cases where light housework and hobbies like crocheting

did not disqualify claimants as disabled).            Indeed, “while a

claimant must show by objective evidence the existence of an

underlying impairment that could cause the pain alleged, ‘there

need not be objective evidence of the pain itself.’”               Craig v.

Chater, 76 F.3d at 593 (citations omitted); see also Walker v.

Bowen, 889 F.2d 47, 49 (4th Cir. 1989).        Here, the ALJ’s finding

that needlepoint and crochet negate her testimony essentially

requires Morgan to be consistently bedridden or proffer “objective

evidence” of pain; it also ignores the fact that Morgan presented

objective test results which her primary treating physician found

fully capable of producing her disabling pain.          This is error.

      Also, Morgan was admitted to the emergency room more than

once, and it would be passing strange to penalize a claimant for

having the good sense and good fortune to receive regular treatment

through specialists instead of returning to the emergency room over

and over.   Further, I am frankly puzzled as to how a lack of side-

effects from pain medication can discount Morgan’s testimony that

she is still in pain despite the medication.        And, as the majority


                                    30
recognizes,     ante     at   9-10,    the    FCE    restricted     Morgan    by,   for

example, stating that she could not sit or stand for more than 1/3

of the workday each.10

     The   ALJ’s    statement         that    Dr.    Holford’s     findings    somehow

support that Morgan is not disabled is simply incomprehensible; no

reasonable reading of his submitted evidence, as detailed above in

Part I.A, can claim this. If Dr. Holford’s findings did contradict

Morgan’s claims, I must wonder why Morgan would argue for us to

give them such great weight?            Finally, Dr. Kirkley, whatever else

he wrote, specifically signed a document indicating that Morgan was

unable to work indefinitely and only encouraged her to work if she

felt capable.      For all of these reasons, I believe that the ALJ’s

decision   to    discount       Morgan’s          testimony   is    unsupported     by

substantial evidence.



                                         III.

     Finally,      the    majority’s         novel    suggestion     that     the   ALJ

discounted the evidence submitted by Morgan’s husband and daughter


     10
      More specifically, the FCE also stated that she could lift
to her shoulders or carry, push, or pull only 8 pounds occasionally
and 4 pounds frequently; it also noted that she could only lift
overhead 3 pounds occasionally and 2 pounds frequently.
Importantly, the FCE also reported that while Morgan could reach
frequently, she could never bend, squat, kneel, or crawl and could
not sit, stand, walk, or climb for more than 33% of a workday each.
In response to Morgan’s “physical demand classification,” the FCE
listed “no classification.”    Tr. 255.    With these restrictions
explicitly noted, the FCE found that Morgan’s “current work status”
was “qualified full time.” Id.

                                             31
because of Dr. Kirkley and the FCE is unsustainable.            The ALJ was

crystal clear that the family members’ testimony was “viewed as

biased”   and    given   little    weight    simply   because    of   their

relationship to Morgan.

     Morgan’s husband and daughter submitted questionnaires that

indicated Morgan was able to engage in only the most limited of

activities.     Morgan’s husband noted that she could not do things

she likes to do, such as work in the yard and house or attend

movies and rummage sales.         He stated that Morgan cannot bend or

lift, cannot sit or stand for any long period without pain, and

experiences numbness that makes walking difficult.         He wrote that

he must help her complete basic tasks and sometimes must help her

walk or stand up.     Morgan’s husband also explained that the pain

has “taken away her independence.         She was a very independent and

active lady [and] that has all changed for her . . . .”           Tr. 130.

     Morgan’s daughter echoed this assessment, writing that while

her mother had previously been highly independent, she now “is

reliant on others to perform the smallest of duties,”       Tr. 132, and

has difficulty standing, cooking, cleaning, getting things out of

cabinets, and walking up stairs. She also wrote that Morgan cannot

play with her grandson or have him sit on her lap without pain and

that she had to help her mother lay on the floor in the grocery

store when her legs spasmed uncontrollably.




                                     32
     In direct response to this evidence, the ALJ simply stated

that:   “[a]s immediate family members, the claimant’s husband and

her daughter would be expected to support the claimant’s effort to

secure disability benefits.   While I do not question the veracity

of the claimant’s husband or daughter, their statements are viewed

as biased and I give them little weight.”   Tr. 16.   In contrast to

the majority’s version of things, it is perfectly clear to me that

the ALJ offered no other reason for discounting this evidence and

then moved on to discuss Morgan’s testimony.

     As with other recommendations, the magistrate judge rightly

recognized that the ALJ’s per se discounting of Morgan’s family

members’ observations for bias was reversible error.         Courts

consistently and appropriately rely on the testimony of family

members in the full range of matters.   As one court explained:

     Descriptions of friends and family members who were in a
     position to observe the claimant's symptoms and daily
     activities have been routinely accepted as competent
     evidence. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th
     Cir. 1987); 20 CFR § 404.1529(c)(3). A disregard for
     such evidence violates the Commissioner's regulations
     about observations by nonmedical sources as to how an
     impairment affects a claimant's ability to work.     Id.
     When an ALJ fails to believe lay testimony about a
     claimant's allegations of pain or other symptoms, he
     should discuss the testimony specifically and make
     explicit credibility determinations. Smith v. Heckler,
     735 F.2d 312, 313 (8th Cir. 1984).

Behymer v. Apfel, 45 F. Supp. 2d 654, 663 (N.D. Ind. 1999); see

also, e.g., Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)

(“The fact that a lay witness is a family member cannot be a ground


                                33
for rejecting his or her testimony.              To the contrary, testimony

from lay witnesses who see the claimant every day is of particular

value; such lay witnesses will often be family members.” (citation

omitted)); Regennitter v. Comm. of the Social Sec. Admin., 166 F.3d

1294, 1298 (9th Cir. 1999) (noting claimant’s mother’s testimony,

explaining that such lay testimony “provides an important source of

information about a claimant's impairments, and an ALJ can reject

it only by giving specific reasons germane to each witness.”

(citing Smolen)).      As Morgan argues, if family members' evidence

was automatically      worthless,    it    would    be   an    odd   exercise   in

futility to even allow them to fill out questionnaires and submit

them into evidence.



                                     IV.

      For   these   reasons,   I   believe    (1)    Dr.      Holford’s   medical

opinions should receive greater weight, and the evidence submitted

(2)   by    Mrs.    Morgan   and    (3)    her     family      deserves    proper

consideration.      When all of Morgan’s evidence is appropriately

considered, the unavoidable conclusion is that the case should be

remanded with instructions to award benefits.




                                     34
