                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 26 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ALBERT L. VAIL,

                Plaintiff-Appellant,

    v.                                                    No. 02-5061
                                                    (D.C. No. 00-CV-976-J)
    JO ANNE B. BARNHART,                                  (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , Circuit Judges.




         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. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff-appellant Albert Vail appeals from an order of the district court

affirming the Social Security Administration’s decision denying his application

for Social Security disability and Supplemental Security Income benefits (SSI).

This is Vail’s second application for benefits as he seeks to be reevaluated in the

course of degenerative diseases affecting his back and limbs. We have

jurisdiction over this appeal under 42 U.S.C. § 405(g). Because the Social

Security Administration did not support its reliance on the ambiguous testimony

of the vocational expert with substantial evidence to conclude that there were jobs

Vail could perform, we reverse and remand for further proceedings.


                                    Background

      In March of 1988, Vail injured his back on the job working as a meat

cutter. On January 16, 1990, Vail filed his first claim for disability, alleging pain

in his back, legs, arms, and shoulders. On November 29, 1991, the agency denied

Vail’s application. The agency affirmed that denial on reconsideration, and Vail

was unsuccessful in overturning the agency’s decision before an Administrative

Law Judge (ALJ), and before a magistrate judge in the Northern District of

Oklahoma. Vail v. Dep’t of Health and Human Servs., N.D. Okla., 92-C-0965-C,

Sept. 22, 1994. Vail did not appeal further. As of December 31, 1993, the last

date upon which Vail had insurance, he was fifty-four years old. 20 C.F.R.



                                         -2-
§ 404.1563 (categorizing a 54-year-old claimant as closely approaching advanced

age).

        On October 8, 1996, Vail filed the instant claim for benefits alleging that,

because his disability had become progressively worse since the Commissioner’s

decision in November 1991, his case for benefits should be considered anew. The

agency denied Vail’s new claim initially and on reconsideration. Vail appealed

the agency’s denial of his benefits to an ALJ.

        On January 28, 1999, Vail received his de novo hearing before an ALJ. At

the hearing, the ALJ posed a hypothetical to the vocational expert (VE) reiterating

the limitations on Vail’s abilities recognized by the agency in its November 1991

decision. 1 Hearing Tr., Aplt’s App. at 288. Upon request for clarification from

the VE, the ALJ specified twice that the person in this hypothetical would have to

alternate sitting and standing as needed.    Id. at 288-89. T he VE testified in

response that, if Vail had to be able to change positions as needed, there would be

no jobs in the economy that he could perform. Id. at 289 (ALJ: “So with those

restrictions here [there] would be no jobs?”; VE: “That’s right.”).




1
      The ALJ cited the November 1991 decision as assuming that an individual
was “limited to lifting 20 pounds occasionally, ten pounds frequently, [c]an stand
or walk for six hours in an eight-hour day[,] and can stoop, only occasionally
stoop[,] and needs to be allowed to alternate sitting and standing due to pain.”
Hearing Tr., Aplt’s App. at 288.

                                            -3-
      The ALJ questioned the VE about why she had reached this conclusion

when the November 1991 decision had found that jobs existed that Vail could

perform. Id. The VE explained that a major limiting factor was the ALJ’s

reading of the November 1991 language to find that Vail would require changes

of position as needed. Id. If Vail required changes of position “as needed,” no

jobs would be available to him. 2 Id. The VE also reported that typically the

language “brief changes of position,” would not imply “as needed.” Id. at 288-89.

      The ALJ then posited an alternate hypothetical with the same limitations

except with brief changes of position not required “as needed.” Id. at 289. In

response, the VE stated that there would be jobs in the economy Vail could

perform. Id. But, she added, a new employer would not be likely to make

unspecified other accommodations Vail would require to work because he was

over fifty years of age. Id. at 291-94. Moreover, Vail would only be able to work

if he were to return to a job he had already held and had demonstrated that he

could perform. Id. at 294.

      On May 24, 1999, the ALJ issued a decision adopting the same substantive

findings regarding Vail’s limitations as the agency’s November 1991 decision.


2
       VE: “Well, normally when someone says alternate sitting and standing, if
they say with a brief change of position, then I would say yes, they could perform
those jobs. If they go on to say the person has to be able to change positions as
needed, then I would say they would be eliminated.” Hearing Tr., Aplt’s App. at
289.

                                        -4-
Agency Slip Op., Aplt’s App. at 24-25. Although the ALJ acknowledged that

Vail suffered from degenerative disc disease, arthritis, and hypertension, he

discounted evidence of the progression of these diseases. Id. at 19, 20-23. Vail

then had only “severe impairments;” the ALJ did not consider Vail automatically

disabled because his impairments did not meet or exceed a listed impairment in

the Medical-Vocational Guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P,

app. 2. Id. at 24. Nonetheless, the ALJ concluded that Vail could not return to

his past relevant work as a meat cutter. Id. at 25.

      Finally, the ALJ announced that Vail retained the residual functional

capacity (RFC) to perform less than the full range of light work with brief

changes of position. Id. Citing only the VE’s testimony, the ALJ held that this

meant Vail could perform unskilled light production labor (25,000 positions

regionally and 281,000 positions nationally) and unskilled sedentary assembly

work (20,000 positions regionally and 150,000 positions nationally). Id. at 24.

The ALJ’s decision did not specify, however, what timetable was implied in the

“brief changes of position” Vail would require. Id. at 24-25. It also failed to

discuss whether Vail could perform the jobs listed even if his changes of position

were not “as needed” given that Vail was over the age of fifty and would not be

returning to previous relevant employment. Id. at 24. The ALJ did, however,

assert that his relevant hypothetical question to the VE “accurately depicted


                                          -5-
claimant’s vocational factors of age, education, past work, and residual functional

capacity.” Id. The Appeals Council denied review, so the ALJ’s decision became

the final decision of the Commissioner.

      On appeal, the district court for the Northern District of Oklahoma

approved the magistrate judge’s report and recommendation to affirm the

Commissioner’s decision. The magistrate judge’s report and recommendation had

adopted two counterarguments to reconcile the gaps between the VE’s testimony

at the hearing and the ALJ’s use of that testimony in his decision. Report and

Recommendation, Aplt’s Br., Ex. F at 18. First, the magistrate judge suggested

that the only part of the VE’s testimony that should be relevant to the agency’s

decision was her pronouncement that jobs existed in the economy that Vail could

perform. Id. The magistrate judge discounted the VE’s qualification of this

pronouncement by noting that the agency had argued that it was not the

Commissioner’s burden to prove that an employer might actually accommodate

Vail now that he was over fifty if jobs existed in the economy that Vail could

perform under any circumstances. Id. Second, the magistrate judge wrote that the

ALJ must have avoided the VE’s flat pronouncement that no jobs existed in the

economy in response to his initial hypothetical by assuming that Vail’s required

changes of position were “at will,” as opposed to “as needed.” Id.




                                          -6-
      On appeal, Vail argues both (1) that the ALJ erred in not recognizing that

Vail’s condition after November 1991 met or exceeded a listed impairment under

the agency’s guidelines so that he should automatically be considered disabled,

and (2) that the ALJ failed to sustain his burden of proof at step five of the

sequential evaluation process to establish that Vail could perform a job existing in

substantial numbers in the regional and national economies. Because Vail’s

second argument is clearly dispositive, we address it first and need not reach his

alternative argument. We agree that the ALJ failed to sustain his burden of proof

at step five that there were jobs Vail could perform in the regional and national

economies. We therefore reverse and remand for further proceedings.


                                Standard of Review

      We review the agency’s decision to determine whether it supported its

factual findings with substantial evidence and whether it applied the correct legal

standards. Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047

(10th Cir. 1993). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Fowler v. Bowen,

876 F.2d 1451, 1453 (10th Cir. 1989) (quotations omitted).

      Specifically, a record must “demonstrate that the ALJ considered all of the

evidence,” through “discussing the evidence supporting his decision, . . . the

uncontroverted evidence he chooses not to rely upon, [and] significantly probative

                                          -7-
evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

Unless an ALJ explicitly weighs all of the significantly probative evidence in a

case, we cannot assess whether his decision was supported by substantial

evidence as required. Id. at 1009; see also Social Security Act, 42 U.S.C.

§ 405(b)(1) (requiring that any “decision by the Commissioner of Social Security

which involves a determination of disability and which is in whole or in part

unfavorable to such individual shall contain a statement of the case, in

understandable language, setting forth a discussion of the evidence, and stating

the Commissioner’s determination and the reason or reasons upon which it is

based”). An ALJ must explain himself in his decision; “we are not in a position

to draw factual conclusions on behalf of the ALJ.” Prince v. Sullivan, 933 F.2d

598, 603 (7th Cir. 1991). We will not consider evidence substantial “if it is

overwhelmed by other evidence in the record or constitutes mere conclusion.”

Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).

      Finally, the agency must follow a five-step sequential evaluation process

to determine whether a claimant is disabled. Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. Id. at 751 n.2. If the

claimant successfully meets this burden, the burden of proof shifts to the agency

at step five to show that the claimant retains sufficient RFC to perform work in


                                          -8-
the national economy, given his age, education and work experience. Id. at 751.

Should an ALJ’s decision not carry his burden of proof to show that there are jobs

in the regional and national economies that the claimant can perform, we will

reverse. See, e.g., Nielson v. Sullivan, 992 F.2d 1118, 1120-22 (10th Cir. 1993).


                                        Discussion

       A vocational expert’s testimony may provide a proper basis for an ALJ’s

determination at step five only when a claimant’s impairments are adequately

reflected in the hypotheticals posed to the expert.    Hargis v. Sullivan , 945 F.2d

1482, 1492 (10th Cir. 1991). An ALJ is required to accept and to include in his

hypothetical questions limitations supported by the record.     See Shepherd v. Apfel ,

184 F.3d 1196, 1203 (10th Cir. 1999).

       Furthermore, if an ALJ finds that a claimant cannot perform the full range

of work in a particular exertional category, an ALJ’s description of his findings in

his hypothetical and in his written decision must be particularly precise. For

example, according to one of the agency’s own rulings on sedentary labor, the

description of an RFC in cases in which a claimant can perform less than the full

range of work “must be specific as to the frequency of the individual’s need to

alternate sitting and standing.” Social Security Ruling 96-9P, 1996 WL 374185

(S.S.A.) at *7. Precisely how long a claimant can sit without a change in position

is also relevant to assumptions whether he can perform light work. 20 C.F.R.

                                             -9-
§ 404.1567(b). Next, an ALJ must consider how the age of a claimant over fifty,

along with his severe impairment, might seriously affect his ability to adjust to

other work. 20 C.F.R. § 404.1563(d). Courts have generally recognized that the

agency “faces a more stringent burden when denying disability benefits to older

claimants.” Dikeman v. Halter , 245 F.3d 1182, 1184 (10th Cir. 2001) (quoting

Terry v. Sullivan , 903 F.2d 1273, 1275 (9th Cir. 1990)). Finally, when a claimant

can perform less than the full range of work in an exertional category, a

vocational expert’s testimony about what jobs he could perform becomes

particularly valuable.   See, e.g., Talbot v. Heckler , 814 F.2d 1456, 1465 (10th Cir.

1987).

         We find that the ALJ in Vail’s case did not support his decision with

substantial evidence as it was his burden to do.     Nielson, 992 F.2d at 1120-21.

The ALJ’s hypothetical questions to the VE lacked key information, and the

ALJ’s use of the VE’s testimony in his final decision suffered from important

gaps in analysis that do not permit us to review his reasoning.    Clifton, 79 F.3d at

1009. Because we cannot draw conclusions on an ALJ’s behalf,         Prince , 933 F.2d

at 603, we must reverse.

         The record on appeal shows critical omissions in the ALJ’s analysis. First,

contrary to the ALJ’s assertion in his decision, his hypothetical questions to the

VE did not contain key facts that must inform the agency’s conclusion.      Hargis ,


                                            -10-
945 F.2d at 1492.   The ALJ did not properly define how often Vail would need to

change positions even “as needed,” he did not establish that Vail was over fifty

years of age, and he did not offer whether Vail would be able to return to

previous relevant work.     See generally, e.g., Ragland v. Shalala, 992 F.2d 1056,

1058 (10th Cir. 1993) (noting that it is “very troubling” for an ALJ to not make

specific findings regarding what it means for a claimant to have difficulty in

maintaining a position).

       Second, the ALJ failed to acknowledge in his decision whether and how he

had evaluated the VE’s negative responses to the hypothetical questions he posed.

The ALJ omitted any reference to the VE’s qualified responses, citing only to the

statement the VE had made before qualification with necessary facts. When an

ALJ fails explicitly to weigh all of the significantly probative evidence in a case,

we cannot assess the merits of his decision and will find that it is not supported

by substantial evidence.    Clifton , 79 F.3d at 1009. We will not fill in critical gaps

for an ALJ who has not provided substantial evidence for his conclusions.

Prince , 933 F.2d at 603.

       Finally, even if we were to accept, for example, the magistrate judge’s

report and recommendation’s attempt to bridge the logical inconsistencies in the

ALJ’s decision, the ALJ still has not carried his burden of proof.     Although the

agency need not prove that a particular claimant will actually be hired for one of


                                            -11-
the positions that it asserts exists in the regional or national economies, 20 C.F.R.

§ 404.1566(c)(7), an ALJ’s “‘finding that a claimant is able to engage in

substantial gainful activity requires more than a simple determination that the

claimant can find employment and that he can physically perform certain jobs; it

also requires a determination that the claimant can hold whatever job he finds for

a significant period of time.’” Winfrey v. Chater, 92 F.3d 1017, 1025-26 (10th

Cir. 1996) (quoting Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994)).

Not only did the ALJ’s hypothetical question to the VE lack multiple pieces of

critical information, but the VE’s qualification of her statements in the record

suggests that Vail may not actually be able to hold the positions the ALJ

described because he would require accommodation not available to a claimant

with his characteristics.   See also generally Dikeman , 245 F.3d at 1184 (noting

that the agency “faces a more stringent burden when denying disability benefits to

older claimants” in recognition of the obstacles older claimants are likely to face

adjusting to new work in the economy). The ALJ may not then be able to rely

even on the selected pronouncement in the VE’s testimony as an affirmative

statement that there were jobs in the economy that Vail could perform.    Id.; 20

C.F.R. § 404.1520(f) (“If you cannot do any work you have done in the past . . .

we will consider your residual functional capacity and your age, education, and




                                          -12-
past work experience to see if you can do other work. If you cannot, we will find

you disabled.”).


                                    Conclusion

      We conclude that the ALJ failed to carry his burden at step five of the

sequential evaluation process, and that substantial evidence does not support the

agency’s decision.   Williams , 844 F.2d at 751. We REVERSE the judgment of the

United States District Court for the Northern District of Oklahoma, and we

REMAND to the district court for it to remand to the agency for further

proceedings. The agency’s proceedings should either more fully explain the

ALJ’s decision or award benefits.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




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