* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 26 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ALBERT L. VAIL,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner, Social Security Administration,

Defendant-Appellee. No. 02-5061 (D.C. No. 00-CV-976-J) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Plaintiff-appellant Albert Vail appeals from an ord er of the district court affirming the Social Security Administration’s deci sion denying his application for Social Security disability and Supplemental Sec urity Income benefits (SSI). This is Vail’s second application for benefits as h e 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 relianc e 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 furth er 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 Novembe r 29, 1991, the agency denied Vail’s application. The agency affirmed that denia l on reconsideration, and Vail was unsuccessful in overturning the agency’s decisi on 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 o f December 31, 1993, the last date upon which Vail had insurance, he was fifty-fo ur years old. 20 C.F.R.1 The ALJ cited the November 1991 decision as assumin g that an individual

was “limited to lifting 20 pounds occasionally, tenpounds frequently, [c]an stand or walk for six hours in an eight-hour day[,] and c an stoop, only occasionally stoop[,] and needs to be allowed to alternate sitti ng and standing due to pain.” Hearing Tr., Aplt’s App. at 288. -3- § 404.1563 (categorizing a 54-year-old claimant as closely approaching advanced age). On October 8, 1996, Vail filed the instant claim fo r benefits alleging that, because his disability had become progressively wor se since the Commissioner’s decision in November 1991, his case for benefits sh ould be considered anew. The agency denied Vail’s new claim initially and on rec onsideration. 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 vo cational expert (VE) reiterating the limitations on Vail’s abilities recognized by t he agency in its November 1991 decision. 1 Hearing Tr., Aplt’s App. at 288. Upon request fo r 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 pos itions 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.”).2 VE: “Well, normally when someone says alternate sitting and standing, if

they say with a brief change of position, then I wo uld 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- The ALJ questioned the VE about why she had reachedthis 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 imp ly “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 inthe economy Vail could perform. Id. But, she added, a new employer would not be likel y 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 w ork if he were to return to a job he had already held a nd 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.-5-

Agency Slip Op., Aplt’s App. at 24-25. Although the ALJ acknowledged that Vail suffered from degenerative disc disease, arthr itis, and hypertension, he discounted evidence of the progression of these dis eases. Id. at 19, 20-23. Vail then had only “severe impairments;” the ALJ did notconsider Vail automatically disabled because his impairments did not meet or ex ceed 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 c ould not return to his past relevant work as a meat cutter. Id. at 25. Finally, the ALJ announced that Vail retained the r esidual 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 thatthis meant Vail could perform unskilled light productionlabor (25,000 positions regionally and 281,000 positions nationally) and un skilled sedentary assembly work (20,000 positions regionally and 150,000 posit ions nationally). Id. at 24. The ALJ’s decision did not specify, however, what t imetable 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 a ge 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-6-

claimant’s vocational factors of age, education, pa st work, and residual functional capacity.” Id. The Appeals Council denied review, so the ALJ’s d ecision 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 recommen dation to affirm the Commissioner’s decision. The magistrate judge’s re port 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, th e magistrate judge suggested that the only part of the VE’s testimony that shoul d be relevant to the agency’s decision was her pronouncement that jobs existed inthe economy that Vail could perform. Id. The magistrate judge discounted the VE’s qualific ation of this pronouncement by noting that the agency had argued that it was not the Commissioner’s burden to prove that an employer mig ht 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.-7-

On appeal, Vail argues both (1) that the ALJ erred in not recognizing that Vail’s condition after November 1991 met or exceede d a listed impairment under the agency’s guidelines so that he should automatic ally be considered disabled, and (2) that the ALJ failed to sustain his burden o f proof at step five of the sequential evaluation process to establish that Vai l could perform a job existing in substantial numbers in the regional and national ec onomies. 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 perfor m 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 whethe r 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 re levant evidence as a reasonable mind might accept as adequate to support a conclusi on.” Fowler v. Bowen , 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations om itted). Specifically, a record must “demonstrate that the A LJ considered all of the evidence,” through “discussing the evidence support ing his decision, . . . the uncontroverted evidence he chooses not to rely upon , [and] significantly probative-8-

evidence he rejects.” Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). Unless an ALJ explicitly weighs all of the signific antly probative evidence in a case, we cannot assess whether his decision was sup ported 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 Co mmissioner of Social Security which involves a determination of disability and wh ich is in whole or in part unfavorable to such individual shall contain a stat ement of the case, in understandable language, setting forth a discussionof 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 decisi on; “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 evi dence substantial “if it is overwhelmed by other evidence in the record or cons titutes mere conclusion.” Musgrave v. Sullivan , 966 F.2d 1371, 1374 (10th Cir. 1992). Finally, the agency must follow a five-step sequent ial 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 bu rden of establishing a prima facie case of disability at steps one throu gh four. Id. at 751 n.2. If the claimant successfully meets this burden, the burdenof proof shifts to the agency at step five to show that the claimant retains suff icient RFC to perform work in-9-

the national economy, given his age, education and work experience. Id. at 751. Should an ALJ’s decision not carry his burden of pr oof to show that there are jobs in the regional and national economies that the cla imant 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 prope r basis for an ALJ’s determination at step five only when a claimant’s i mpairments 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 cannotperform 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 b e particularly precise. For example, according to one of the agency’s own rulin gs 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 frequencyof 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 perf orm light work. 20 C.F.R.-10-

§ 404.1567(b). Next, an ALJ must consider how the age of a claimant over fifty, along with his severe impairment, might seriously a ffect 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, w hen a claimant can perform less than the full range of work in an exertional category, a vocational expert’s testimony about what jobs he co uld 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 supporthis 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 k ey information, and the ALJ’s use of the VE’s testimony in his final decisi on 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 th e ALJ’s analysis. First, contrary to the ALJ’s assertion in his decision, hi s hypothetical questions to the VE did not contain key facts that must inform the agency’s conclusion. Hargis ,-11-

945 F.2d at 1492. The ALJ did not properly define how often Vail w ould need to change positions even “as needed,” he did not estab lish that Vail was over fifty years of age, and he did not offer whether Vail wou ld 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 trou bling” for an ALJ to not make specific findings regarding what it means for a cla imant to have difficulty in maintaining a position). Second, the ALJ failed to acknowledge in his decisi on 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 significan tly probative evidence in a case, we cannot assess the merits of his decision and wil l 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 evidenc e for his conclusions.
Prince , 933 F.2d at 603. Finally, even if we were to accept, for example, th e magistrate judge’s report and recommendation’s attempt to bridge the l ogical 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 wi ll actually be hired for one of-12-

the positions that it asserts exists in the regiona l 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 s imple determination that the claimant can find employment and that he can physic ally 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 no t 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 whendenying disability benefits to older claimants” in recognition of the obstacles ol der claimants are likely to face adjusting to new work in the economy). The ALJ maynot then be able to rely even on the selected pronouncement in the VE’s test imony 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 yo u have done in the past . . . we will consider your residual functional capacity and your age, education, and-13-

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 Distr ict of Oklahoma, and we REMAND to the district court for it to remand to th e agency for further proceedings. The agency’s proceedings should eithe r more fully explain the ALJ’s decision or award benefits.

Entered for the Court

Robert H. Henry Circuit Judge