Dial v. Commissioner of Social Security,

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 18, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-11829
Non-Argument Calendar
________________________
D.C. Docket No. 8:08-cv-00805-JDW-TBM
BHARATT DIAL,
lllllllllllllllllllllPlaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
lllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 18, 2010)
Before BARKETT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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Bharatt Dial appeals from the district court’s order affirming the Social
Security Commissioner’s denial of his application for disability insurance benefits,
pursuant to 42 U.S.C. § 405(g). “We review the Commissioner’s decision to
determine if it is supported by substantial evidence and based on proper legal
standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004) (quotation omitted).
In this case, the Administrative Law Judge (“ALJ”) denied Dial’s
application on the ground that he could perform his past relevant work and other
jobs in the regional economy. In reaching this conclusion, the ALJ relied
exclusively on the testimony of a vocational expert (“VE”). However, it is
undisputed that the ALJ failed to include all of Dial’s employment limitations in
the hypothetical questions posed to the VE. Thus, the VE’s testimony did not
constitute substantial evidence upon which the ALJ could rely. Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999); Pendley v. Heckler, 767 F.2d 1561, 1562-
63 (11th Cir. 1985).
Nonetheless, the district court found, and the Commissioner contends, that
this error was harmless because, according to the job descriptions contained in the
Dictionary of Occupational Titles (“DOT”), Dial’s past relevant work and other
jobs in the regional economy would not require him to perform duties inconsistent
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with his employment limitations. However, while the ALJ could have chosen to
rely on the DOT, he instead relied only on the testimony of the VE, who was not
instructed on all of Dial’s limitations. Thus, we cannot say that the ALJ’s error
was harmless. Cf. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)
(concluding that the ALJ’s factual errors were harmless only because they were
irrelevant to the ALJ’s legal determination).
VACATED AND REMANDED.
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