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The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-4083

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Lynn J. Wright, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Western

Jo Anne B. Barnhart, Commissioner, * District of Missouri.

Social Security Administration, *

* [UNPUBLISHED]

Appellee. *

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Submitted: May 14, 2004

Filed: August 3, 2004

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Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.

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PER CURIAM.

This is an appeal from the order of the district court1

 upholding the denial of

social security benefits to Lynn Wright by the Commissioner of Social Security,

following a hearing before an administrative law judge (ALJ). We affirm.

Ms. Wright applied for disability insurance benefits under Title II of the Social

Security Act, see 42 U.S.C. §§ 401-434, and supplemental security income under
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Title XVI of the Act, see 42 U.S.C. §§ 1381-1383f. She argued that because of her

depression, seizure disorder, and fibromyalgia she was entitled to benefits. An ALJ

conducted a hearing and issued a written decision finding that Ms. Wright was not

disabled for purposes of the Act. After the Commissioner of Social Security adopted

the ALJ's decision, Ms. Wright commenced this suit. The district court upheld the

decision, and this appeal followed.

On appeal from the district court, we review the ALJ's decision without

granting any deference to the district court's determinations. Depover v. Barnhart,

349 F.3d 563, 565 (8th Cir. 2003). The scope of our review of the ALJ's decision is

sharply limited. We will reverse only if the ALJ committed an error of law or if the

ALJ's findings are not supported by substantial evidence in the record as a whole. 

Substantial evidence is less than a preponderance, but enough so that a reasonable

mind might find adequate support for the conclusion. See Oberst v. Shalala, 2 F.3d

249, 250 (8th Cir. 1993). We will consider evidence that weighs against the ALJ's

findings, but we do not act as a fact-finder. Nor may we overturn the ALJ's decision

simply because "we might have weighed the evidence differently." See Browning v.

Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).

In order to qualify as disabled under the Act, a person must have a physical or

mental impairment that has lasted (or will last) twelve months and that prevents him

or her from engaging in substantial gainful activity. Timmerman v. Weinberger,

510 F.2d 439, 442 (8th Cir. 1975). The sole issue at Ms. Wright's administrative

hearing was whether she was disabled. The ALJ was persuaded that she suffered

from both physical and mental impairments but found that her impairments did not

prevent her from engaging in substantial gainful employment. 

Ms. Wright claims that she suffers from three to eight petit mal seizures per

week, which keep her from working. The ALJ, however, did not credit this claim.

He found that the medical records indicated that Ms. Wright's seizure activity was
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less severe than she claimed and that Ms. Wright's medication levels were below

therapeutic levels. While the ALJ did find that Ms. Wright's condition precluded her

from heavy lifting, operating dangerous machinery, or working from heights, and that

she suffered from other physical limitations, he concluded that Ms. Wright's ailments

and limitations did not preclude her from her previous gainful employment as a

bartender, and therefore that she was not disabled under the Act.

Ms. Wright's sole argument on appeal is that the ALJ based this conclusion on

the answer to an improper hypothetical question that he put to a vocational expert

who testified at the hearing. The ALJ asked the expert whether a person with

disabilities that the ALJ found that Ms. Wright suffered from would be capable of

working as a bartender. The question, however, failed explicitly to mention

Ms. Wright's seizure disorder. We have held that a hypothetical to a vocational

expert that does not accurately set forth the petitioner's condition cannot furnish

substantial evidence of the absence of a disability. See, e.g., Mitchell v. Sullivan,

925 F.2d 247, 249-50 (8th Cir. 1991). Such cases, however, are distinguishable,

because the residual functional capacity that the ALJ attributed to Ms. Wright in the

hypothetical was supported by substantial medical and other evidence that the ALJ

had before him. We note, moreover, that the testimony of a vocational expert is not

required to establish that a claimant can return to her former work. Banks v.

Massanari, 258 F.3d 820, 827 (8th Cir. 2001).

Discerning no error, we affirm.

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