                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 Dec. 22, 2009
                                No. 08-16729                   THOMAS K. KAHN
                          ________________________                 CLERK


                      D. C. Docket No. 07-00337-CV-HL-5

SHEILA D. LYNCH,


                                                                Plaintiff-Appellant,

                                      versus

MICHAEL J. ASTRUE,
Commissioner of Social Security,

                                                               Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                        _________________________

                               (December 22, 2009)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:

      Sheila D. Lynch appeals the district court’s affirmance of the
Commissioner’s denial of disability insurance benefits and Supplemental Security

Income pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The central issue in this

case is whether the Commissioner’s decision that Lynch’s disability ended on

December 1, 2004, terminating her Social Security benefits, is supported by

substantial evidence. She asserts that the vocational expert’s (“VE”) testimony as

to the number of available jobs in existence is unreliable and does not support the

Commissioner’s decision. The government responds that the VE provided a

sufficient foundation for the reliability of her testimony when she stated that she

relied upon her experience to determine the number of jobs in existence.

                          I. BACKGROUND

      Lynch was first deemed disabled as of September 12, 2000. She was found

to have the following severe impairments: depression, a right knee disorder,

hypertension, and right wrist tendonitis. Based on these impairments, Lynch

received disability insurance benefits (“DIB”), and was found eligible for

supplemental security income (“SSI”). The Commissioner subsequently

determined that Lynch was no longer disabled as of December 1, 2004, terminating

her benefits. Lynch filed a request for an administrative law hearing, and the ALJ

heard testimony from Lynch and the VE to determine whether Lynch’s disability

ended pursuant to § 23(f) of the Social Security Act, 42 U.S.C. § 423(f). See Doc.



                                           2
9-2 at 17. After a finding that Lynch was no longer disabled, Lynch sought

review of the ALJ’s decision by the district court, which upheld the

Commissioner’s decision to deny benefits.

       To determine whether a claimant continues to be disabled, the

Commissioner must follow an eight-step evaluation process. 20 C.F.R.

404.1594(f)(1)–(8).1 After evaluating Lynch’s claim under the first seven steps of

the sequential evaluation process, the ALJ determined at step seven that Lynch was

not able to return to past relevant work as a Nursing Assistant or Mail Handler.

Doc. 9-2 at 8. Subsequently, the ALJ proceeded to evaluate Lynch’s claim under

step eight, and called a VE to testify whether a hypothetical person, having

functional limitations like those of Lynch, was capable of performing other jobs in

the national economy. After considering the hypothetical questions posed by the

ALJ, the VE indicated that Lynch could perform the requirements of two sedentary

occupations: a surveillance-system monitor, for which there were 1,000 jobs in



1
  The eight-step sequential evaluation requires the ALJ to consider the following inquiries: (1) Is
the individual performing substantial gainful activity; (2) Does she have a severe impairment or
combination of impairments that meets or equals the severity of an impairment specifically listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1; (3) If she does not, has there been medical
improvement; (4) If there has been medical improvement, is it related to her ability to do work;
(5) Does an exception to medical improvement apply; (6) Do all current impairments in
combination significantly limit the claimant’s ability to do basic work activities; (7) After
assessing the residual functional capacity(“RFC”), can she perform her past relevant work; and
(8) Based on her RFC, age, education, and work experience, does other work exist in the national
economy that can she perform.

                                                 3
Georgia and 95,000 jobs in the U.S., and a taper worker,2 with 300 jobs in Georgia

and 35,000 jobs in the U.S. According to the VE, this information was based on

the Dictionary of Occupational Titles (“DOT”) statistics provided by the Georgia

Department of Labor, including those for “state OES code” identifier 63099.

       At the administrative hearing, Lynch’s attorney made an effort to challenge

the basis for the number of jobs identified by the VE. Lynch’s counsel noted that

the DOT referred only to government, not private, surveillance-system monitor

jobs. The VE explained that there were some surveillance-system monitor jobs

outside government, but that in government transportation terminals in Georgia

alone, there would exist at least 1,000 jobs, noting that Hartsfield-Jackson

International Airport, the Metro Atlanta Rapid Transit Authority (“MARTA”), and

other airports in Georgia all employ enough monitors to survey these facilities at

all times. The VE reasoned that these jobs are seen everywhere. Tr. 652. The VE

explained that the “state OES code” 63099 identifier was a classification called “all


2
  According to the DOT, a taper worker, (DOT# 017.6784-010), “places (tapes) adhesive
symbols and precision tape on sheets of mylar in conformance with preliminary drawing of
printed circuit board (PCB) to produce master layout: Places, aligns, and secures preliminary
drawing of PCB and successive layers of transparent sheets of mylar on lighted drafting table,
using register bar. Selects specified symbols and width of tape to indicate peak voltage potential.
Cuts tape and places tape and adhesive symbols on specified sheets of mylar to outline board
size, to indicate connector pads, placement of various components, and to trace circuitry of PCB
as indicated on underlying preliminary drawing, using utility knife, precision grid, and
straightedge. Places specified adhesive identification and reference numbers on master layout.
Reproduces blueprint copy of master layout, using print machine. Inspects copy to verify
accuracy.”

                                                 4
other protective service-workers.” Within this classification, the VE opined that

there are nine job titles, one of which includes a surveillance-system monitor as

indicated by the State Department of Labor. Lynch’s attorney asked the VE if the

job classification included private and government jobs, but the VE acknowledged

that she did not know. This answer prompted Lynch’s attorney to probe further,

requesting that the VE provide a basis for her opinion that there were 1,000 and

300 positions in Georgia for the surveillance-system monitor and taper jobs

respectively. The ALJ, however, did not permit Lynch’s counsel to complete this

line of questioning, and threatened to close the file.

       After considering Lynch’s age, education, work experience, and residual

functional capacity based on the impairments present as of December 1, 2004, the

ALJ concluded that Lynch was able to perform a significant number of other jobs

in the national economy as prescribed by the VE. Doc. 9-2, at 23; See 20 C.F.R.

404.1594(f)(8).3 The ALJ’s written cessation determination indicated that the VE’s

testimony influenced his conclusion. Consequently, the ALJ found, Lynch’s

disability had ended.

                              II. STANDARD OF REVIEW

3
  20 C.F.R. § 404.1594(f)(8) provides that “[i]f you are not able to do work you have done in
the past, we will consider one final step. Given the residual functional capacity assessment and
considering your age, education and past work experience, can you do other work? If you can,
disability will be found to have ended. If you cannot, disability will be found to continue.”


                                                5
      On review, we determine whether the Commissioner’s decision was

supported by “substantial evidence” and whether the correct legal standards were

applied. Lewis v. Callahan, 125 F.3d 1436, 1439–40 (11th Cir. 1997). The Act

dictates that the [Commissioner’s] factual findings are conclusive if supported by

“substantial evidence.” 42 U.S.C. § 405(g). Therefore “[w]e may not decide the

facts anew, reweigh the evidence, or substitute our judgment for that of the

[Commissioner]” rather, “[w]e must scrutinize the record as a whole to determine

if the decision reached is reasonable, and supported by substantial evidence.”

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (internal citations

omitted); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Thus, the

scope of judicial review in disability cases is limited. MacGregor v. Bowen, 786

F.2d 1050, 1053 (11th Cir. 1986). Even if the evidence preponderates against the

Commissioner, we must affirm if the decision reached is supported by substantial

evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986); Barron v.

Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). Notwithstanding this measure of

deference, the Court remains obligated to examine the whole record to determine

whether substantial evidence supports each essential administrative finding. See

Bloodsworth, 703 F.2d at 1239. In determining whether substantial evidence

exists, the Court must also consider evidence that is favorable as well as



                                          6
unfavorable to the Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131

(11th Cir. 1986). Finally, the Commissioner’s findings must be grounded in the

entire record; a decision that focuses on one aspect of the evidence and disregards

other contrary evidence is not based upon substantial evidence. McCruter v.

Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).

                                 III. DISCUSSION

      In a cessation disability determination, although the claimant generally

continues to have the burden of proving disability at the final step, “a limited

burden of going forward with the evidence shifts to the Social Security

Administration. In order to support a finding that an individual is not disabled at

this step, the Social Security Administration is responsible for providing evidence

that demonstrates that other work exists in significant numbers in the national

economy that the claimant can do, given the residual functional capacity, age,

education, and work experience.” Doc. 9-2 at 18; See 20 C.F.R. 404.1594(f)(8).

Often the ALJ meets this burden by relying on the testimony of the VE.

      However, Lynch challenges the ALJ’s reliance on the VE’s testimony

because the VE could not articulate the basis for her opinion regarding the

approximate number of jobs in the economy that she enunciated during the

hearing. Lynch also challenges the ALJ’s decision to disallow some of her



                                           7
attorney’s questions simply because counsel stipulated to the VE’s qualifications.

Lynch asserts that having expert credentials alone does not guarantee that all

opinions issued by an expert are based on sound and reliable methodology. Lynch

argues therefore, that the ALJ’s decision is not supported by substantial evidence.

      Substantial evidence is more than a scintilla, but less than a preponderance:

“[i]t means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 1427, 28 L.Ed.2d 842 (1971); Walden v. Schweiker, 672 F.2d 835, 838–39

(11th Cir. 1982). Therefore, the evidence must do more than merely create a

suspicion of the existence of a fact. Schweiker, 672 F.2d at 839 (11th Cir. 1982);

See 42 U.S.C. §405(g). Testimony that contains an undue degree of speculation is

not substantial evidence.

      Our review of the record reflects that the ALJ unnecessarily limited Lynch’s

attorney in his effort to explore the basis for the VE’s claim that there are 1,000

surveillance-system monitor jobs and 300 taper jobs existing in Georgia that Lynch

could perform. When Lynch’s attorney asked the VE how she came up with these

numbers, the VE remarked that her calculations were not mathematical, and that

she used her best judgment of the employers who employ this type of worker, the

people for this occupation, the size of MARTA, the size of Hartsfield/Jackson



                                           8
Airport: “And that was the basis of my reducing the overall number down to

approximately 1,000. In my opinion, if one actually studied, and called, and

checked, 1,000 would be very conservative.” Tr. 651. When Lynch’s attorney

probed further, the ALJ restrained him from asking the VE additional questions

about the 1,000 jobs: “I’m not allowing any more questions on that.” Tr. 654-655.

Lynch’s attorney asserted that there was no firm basis for the figure, and stated that

he could not move on to the next area, until he “completely cover[ed]” the basis for

her opinion. Tr. 655. The ALJ explained that he would close the file on the case

and take it under advisement if Lynch’s attorney continued to ask questions “onto

the methodology on the 1,000.” Tr. 656. The ALJ however, allowed the file to

remain open, but upon the condition that Lynch’s attorney would, “ask a question,

but not regarding the 1,000 figure on the surveillance [system] monitor, because

we can’t spend any more time on that.” Tr. 657.

      It would have been helpful to the ALJ to permit Lynch’s counsel to inquire

into the mechanics, methodology, and basis for the VE’s assessment. When

counsel attempted to ascertain how the VE arrived at the numbers that she used at

the hearing pertaining to the 300 taper jobs available in Georgia, the following

exchange ensued:

          ATTY.         Okay Taper of printed circuits, you said there
                        were 300 of those jobs in Georgia. Correct?

                                          9
VE.     Yes.

ATTY.   Where did you arrive at that figure?

VE.     In the same manner that I arrived at the other
        figure.

ATTY.   It’s an extrapolation from a non-exact job title?

VE.     From a job category.

ATTY.   From a job category, it’s an extrapolation to
        that job title.

VE.     Yes.

ATTY.   What was your methodology in doing that
        extrapolation?

VE.     The same as before, taking the number of jobs
        included in the total number, the number of
        occupations included by the state, and using my
        best judgment of what is a reasonable number.

        ....

ATTY.   Okay. What about your ability to extrapolate—
        what is your basis for your ability to be able to
        extrapolate a number?

ALJ.    Now wait. Hold on. What is the basis for your
        ability to extrapolate a number? Was that your
        question?

ATTY.   Yes, sir.

ALJ.    I don’t understand it.

                         10
          ATTY.   Okay. I would like to know what skill you
                  have, or what goes into the black box
                  technology where a number comes into your—

          ALJ.    I’m not allowing that question. And the reason
                  I’m not allowing it is because you’ve already
                  stipulated that she’s an expert. So there’s a
                  predicate there that she has the expertise to
                  render vocational opinions. So that question
                  really gets to her qualifications to even render
                  an opinion. So I’m not allowing that question.

          ATTY.   Okay. I’m asking about the methodology still.
                  What is the basis of your decision? Otherwise,
                  we just have to accept everything as I’m an
                  expert, so you have to believe me. I would like
                  to know what goes into that so that—

          ALJ.    But I think she’s explained that so many times.
                  . . . [s]he keeps on saying the same thing.

          ATTY.   I go to the category and I make up a number, is
                  what I hear.

          ALJ.    Well, that’s your interpretation. . . . I don’t see
                  her answers ever changing.

                  ....

                  And you’re saying that when she testifies as an
                  expert, where her expertise has already been
                  stipulated, you’re saying that doesn’t satisfy the
                  burden.

          ATTY.   Correct.

Tr. 657-660.

                              11
This exchange reflects that the ALJ blocked the VE from developing and

explaining to the claimant’s attorney a basis for her interpretation of the sources

upon which she relied. Furthermore, we fail to see how a mere stipulation to the

VE’s qualifications precludes the claimant from questioning the basis for the VE’s

professional opinion and judgment. In order for the VE’s testimony to constitute

substantial evidence upon which the ALJ may rely, it would have been helpful to

allow the VE to articulate the basis for her conclusions that there are 300 or 1,000

jobs existing in the national economy that Lynch can perform given Lynch’s

functional limitations. In the absence of such an explanation, we are without

“relevant evidence that a reasonable mind might accept as adequate to support” the

conclusion that there are other jobs that Lynch is able to perform. See Perales, 402

U.S. at 401. Accordingly, we find that the ALJ’s decision was not based on

substantial evidence.

                                IV. CONCLUSION

      We find that the Commissioner’s decision was not supported by substantial

evidence; therefore, we reverse the opinion of the district court affirming the

Commissioner’s determination and remand to the district court with instructions

that the case be returned to the Commissioner for further proceedings.

REVERSED AND REMANDED with instructions.



                                          12
COX, Circuit Judge, dissenting:

      I would affirm. The VE’s testimony regarding the number of surveillance-

system monitor and taper jobs available in Georgia is substantial evidence to

support the finding that those jobs exist in significant numbers in the relevant

economy.

      And, I disagree that the ALJ improperly limited Lynch’s counsel’s questions

regarding the VE’s bases for her opinions regarding the number of jobs. Lynch’s

counsel stipulated that the VE was an expert, and he voiced no objection to her

expressing an opinion about the number of jobs available in the relevant economy.

Rather, in an effort to impeach the VE’s opinion testimony, he asked and received

answers to the questions, “Now what is the basis of your numbers? Where do you

get the number that there are 1,000 job[s]?” and “Where did you arrive at that

figure [300 taper jobs in Georgia]?” (Transcript at 650-54, 57.) He ascertained

through his questioning that the VE did not use a mathematical method to derive

the numbers of jobs but rather, “based on [her] observation and work in the field,”

applied her “best judgment of the employers who employ . . . people for [these]

occupation[s]” to reduce the numbers provided by the Department of Labor from

job categories to a “reasonable number” in these two specific job titles. (Id.) The

ALJ’s refusal to allow Lynch’s counsel to repeatedly question the VE about the



                                          13
method by which she derived her opinion, after receiving answers to those

questions, was not improper and did not cause the record evidence of the number

of jobs to become insufficient to sustain the decision.




                                          14
