           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    Webb v. Comm’r of Social Security           No. 03-5158
        ELECTRONIC CITATION: 2004 FED App. 0144P (6th Cir.)
                    File Name: 04a0144p.06                                                      _________________
                                                                                                     COUNSEL
UNITED STATES COURT OF APPEALS
                                                                            ARGUED:        Susan K. Houser, UNITED STATES
                   FOR THE SIXTH CIRCUIT                                    DEPARTMENT OF JUSTICE, Washington, D.C., for
                     _________________                                      Appellant. Kelly L. Ward, Stanville, Kentucky, for Appellee.
                                                                            ON BRIEF: Susan K. Houser, Thomas M. Bondy, UNITED
 DEBBIE WEBB ,                   X                                          STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
            Plaintiff-Appellee, -                                           for Appellant. Eric C. Conn, David L. Williams, Stanville,
                                  -                                         Kentucky, for Appellee.
                                  -   No. 03-5158
           v.                     -                                                             _________________
                                   >
                                  ,                                                                 OPINION
 COMMISSIONER OF SOCIAL           -                                                             _________________
 SECURITY,                        -
         Defendant-Appellant. -                                               ALAN E. NORRIS, Circuit Judge. The Commissioner
                                  -                                         appeals from the district court’s partial grant of summary
                                 N                                          judgment in favor of plaintiff Debbie Webb and from its
      Appeal from the United States District Court                          reversal of the Commissioner’s denial of supplemental
    for the Eastern District of Kentucky at Pikeville.                      security income benefits to plaintiff. The district court
   No. 01-00021—Jennifer B. Coffman, District Judge.                        premised its decision upon the opinion of this court in
                                                                            Howard v. Comm’r of Social Security, 276 F.3d 235 (6th Cir.
                     Argued: March 16, 2004                                 2002), which it interpreted as mandating reversal. Because
                                                                            we are unable to agree with the district court’s interpretation
               Decided and Filed: May 19, 2004                              of Howard, we reverse its judgment.

          Before: NORRIS and COLE, Circuit Judges;                                                        I.
                 ECONOMUS, District Judge.*                                   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
    *
     The H onorable Peter C . Econo mus, United States District Judge for   Commissioner had met her burden of demonstrating that a
the Northern District of Ohio, sitting by designation.

                                   1
No. 03-5158         Webb v. Comm’r of Social Security         3   4         Webb v. Comm’r of Social Security        No. 03-5158

significant number of jobs existed in the regional and national       forth by my prior hypothetical. Assume this individual
economies for Webb to perform, thus preventing her from               also has nonexertional impairments. This individual may
being eligible for supplemental security income benefits.             only occasionally climb or balance and is not to stoop,
                                                                      crouch, kneel, or crawl. This individual is limited to
  In denying Webb’s claim, the ALJ relied upon the                    simple to moderately complex tasks in a low stress, task-
testimony of a vocational expert, Donald Joe Woolwine.                oriented worksetting. This individual is moderately
Woolwine testified that jobs existed for Webb in the regional         limited in ability to maintain concentration and attention
and national economies given her age, education, past work            for extended periods. First of all, on these assumptions,
experience and residual functional capacity. In eliciting             in your opinion are there light and sedentary unskilled
testimony from Woolwine, the ALJ asked the following                  job categories recognized by the Secretary that such an
hypothetical questions and received the following answers:            individual could be expected to be able to perform?
  Q. I’d like you to assume an individual exertionally                A. Yes.
  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,           Q. If I were to ask you to further assume that this
  could such an individual perform any of the claimant’s              individual has need to avoid an environment of excessive
  past work?                                                          dust, fumes, gases, or chemicals, how, if at all, would
                                                                      that impact upon your previous answers?
  A. No.
                                                                      A. None.
  Q. Could such an individual perform heavy or medium
     work?                                                        Webb appealed the ALJ’s denial of her claim to the Appeals
                                                                  Council, which affirmed the ALJ’s decision on April 20,
  A. No.                                                          2000, making the ALJ’s decision the Commissioner’s final
                                                                  determination of the claim.
  Q. Could such an individual perform light work?
                                                                    On January 16, 2001, Webb filed a complaint against the
  A. Limited.                                                     Commissioner in federal district court. The case was referred
                                                                  to a magistrate judge who issued a report and
  Q. Sedentary work?                                              recommendation concluding that the ALJ had erred in relying
                                                                  upon Woolwine’s testimony because it had been elicited
  A. Limited.                                                     using incomplete hypothetical questions, citing to our opinion
                                                                  in Howard. The magistrate judge interpreted Howard as
  Q. I’d like you to assume an individual of claimant’s           holding that ALJs were only permitted to rely upon
  age of 44 years, claimant’s eighth grade and GED                vocational expert testimony regarding the availability of
  education and training, and work experience, and assume         employment if the hypothetical questions eliciting that
  this individual has exertional impairments which limit          testimony listed the claimant’s medical conditions.
  this individual to a limited range of light work as set
No. 03-5158         Webb v. Comm’r of Social Security          5    6      Webb v. Comm’r of Social Security          No. 03-5158

  The district court adopted the report and recommendation.             [T]he ALJ’s selective inclusion of only those portions of
The court agreed that Howard requires hypothetical questions            the [medical] report that cast Howard in a capable light
to include lists of claimants’ medical conditions, although it          suggests that he only considered part of the report in
found that the reasoning of earlier cases that did not require          formulating his conclusion that Howard “need[s] to
such lists was “significantly more convincing.” The                     perform work of a simple and relatively nonstressful
government filed a motion to alter or amend judgment under              nature.” As a result, we conclude that the [residual
Fed. R. Civ. P. 59(e). The district court denied that motion on         functional capacity] does not accurately describe
November 13, 2002. This appeal followed.                                Howard’s abilities and that the ALJ’s decision, which is
                                                                        based upon it, is not supported by substantial evidence.
                               II.
                                                                    Howard, 276 F.3d at 240-41. That ruling was sufficient for
   Upon review of our decision in Howard and our prior case         the Howard court to reverse the Commissioner’s denial of
law, we are unable to agree with the district court’s reading       benefits. By contrast, in the case at bar, Webb does not
of Howard, and we conclude that its decision must be                challenge ALJ Gitlow’s residual functional capacity
reversed. The district court interpreted Howard to require          calculation. Accordingly, Howard need not be read to apply
“that the hypothetical should have expressly referenced the         to Webb’s claim.
plaintiff’s diagnosed arthritis.” We read Howard to hold only
that a denial of benefits based upon an ALJ’s improper                Webb argues that other language in the Howard opinion
calculation of a claimant’s residual functional capacity, a         requires that ALJs list claimants’ medical conditions in their
description of what the claimant “can and cannot do,” must be       hypothetical questions to vocational experts for those
reversed. Howard, 276 F.3d at 239. Admittedly, there is             questions to be considered complete. Webb is correct to
some confusing language in Howard that could conceivably            assert that such language exists in Howard. In discussing the
be viewed as requiring that hypothetical questions include          proper content of hypothetical questions, the Howard court
lists of claimants’ medical conditions. However, we conclude        provided the following explanation:
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         Howard’s [residual functional capacity] is to be an
be read to be consistent with the holdings of our prior                 “assessment of [her] remaining capacity for work” once
decisions.                                                              her limitations have been taken into account. 20 C.F.R.
                                                                        § 416.945. It is an assessment of what Howard can and
   Under the social security laws, if a claimant concludes that         cannot do, not what she does and does not suffer from.
an ALJ erroneously calculated her residual functional                   The hypothetical question posed to a [vocational expert]
capacity, she may bring an action against the Commissioner              for purposes of determining whether Howard can
in federal district court challenging the denial of her benefits.       perform other work, on the other hand, should be a more
42 U.S.C. § 405(g). The claimant in Howard mounted                      complete assessment of her physical and mental state and
precisely such a challenge, and this court decided that,                should include an “accurate[] potray[al] [of her]
because the ALJ had not considered the entirety of the                  individual physical and mental impairment[s].” Varley
claimant’s medical record in calculating her residual                   [v. Sec’y of Health and Human Services], 820 F.2d
functional capacity, the denial of benefits had to be reversed.         [777,] 779 [(6th Cir. 1987)]; Myers v. Weinberger, 514
As explained in the Howard opinion:                                     F.2d 293, 294 (6th Cir. 1975) (per curiam). Thus, while
No. 03-5158         Webb v. Comm’r of Social Security           7   8    Webb v. Comm’r of Social Security            No. 03-5158

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