United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1705

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Robert J. Lauer, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the District 

* of Minnesota.

Kenneth S. Apfel, *

Commissioner of Social Security, *

*

Appellee. *

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Submitted: November 17, 2000

Filed: April 4, 2001

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Before LOKEN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

When Robert Lauer applied for disability insurance benefits the Social Security

Administration denied his application initially and on reconsideration. Following a

hearing, an administrative law judge (ALJ) also determined that Mr. Lauer was not

disabled. The Appeals Council denied Mr. Lauer's request for review. 

Mr. Lauer appealed to the district court, which upheld the administrative

decision. He then appealed to this court. In this appeal, he contends that the ALJ's
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decision was contrary to law and not supported by substantial evidence because the

ALJ substituted his own opinion for that of the treating and examining professionals,

and failed to include in the hypothetical question posed to the vocational expert all of

the limitations caused by Mr. Lauer's mental impairments.

We review de novo a district court decision upholding the denial of social

security benefits. See Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir. 2000). When

reviewing an ALJ's decision, we determine whether it is based on legal error and we

examine the evidence supporting and detracting from the decision to determine whether

the ALJ's factual findings are supported by substantial evidence in the record as a

whole. See id. In Mr. Lauer's case, we vacate the judgment and order the district court

to remand the case to the Social Security Administration for further proceedings.

I.

An ALJ generally follows a five-step process to determine whether a claimant

is disabled. See 20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137,

140-42 (1987). 

The ALJ in Mr. Lauer's case first concluded that Mr. Lauer had not engaged in

substantial gainful activity since his alleged onset date, and next found that the

combination of his physical and mental impairments created a "severe impairment," i.e.,

one that "significantly limit[ed] [his] physical or mental ability to do basic work

activities," see 20 C.F.R. § 404.1520(c). The ALJ concluded, however, that

Mr. Lauer's impairments did not meet the criteria for any of the listed impairments that

are acknowledged by the Social Security Administration to be so severe as to result in

a conclusive presumption of disability. See Yuckert, 482 U.S. at 141; see also 20

C.F.R. § 404.1520(d). 

The ALJ therefore considered Mr. Lauer's residual functional capacity to

determine whether Mr. Lauer could return to his past work. See 20 C.F.R.
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§ 404.1520(e). "Residual functional capacity" (RFC) is defined as "what [the claimant]

can still do" despite his or her "physical or mental limitations," see 20 C.F.R.

§ 404.1545(a). The ALJ determined that Mr. Lauer lacked the RFC to return to his

past work of repairing appliances.

After the ALJ determined that Mr. Lauer could not do his past work, the social

security commissioner was required to prove that Mr. Lauer had the RFC to perform

other kinds of work, and that the jobs that he could perform exist in substantial numbers

in the national economy. See Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). The

ALJ, relying on the opinion of a vocational expert, concluded that Mr. Lauer could

perform such other jobs as an assembly worker, a parking ramp cashier, or a security

guard, and that such work was available in the economy. Mr. Lauer challenges the

ALJ's conclusion that he can perform other work, arguing that there was insufficient

medical support for the ALJ's determination of his RFC, and that this erroneous RFC

determination was the basis for the vocational expert's opinion with respect to what

other jobs Mr. Lauer could do.

II.

When determining whether a claimant can engage in substantial employment, an

ALJ must consider the combination of the claimant's mental and physical impairments.

See Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000). Mr. Lauer does not

contest the ALJ's determination of the degree to which his physical impairments

affected his RFC. The ALJ also found, however, that Mr. Lauer had two mental

impairments, depression, see § 12.04A, § 12.04C, and a somatoform disorder (which

manifests as "[p]hysical symptoms for which there are no demonstrable organic

findings or known psychological mechanisms"), see § 12.07 (all three sections from 20

C.F.R. part 404, subpart P, appendix 1), and Mr. Lauer challenges the ALJ's finding

that his mental impairments limited his RFC only by restricting him to brief and

superficial contact with the public. 
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Mr. Lauer contends that the ALJ's conclusion that his mental impairments limited

only the degree to which he was able to interact with the public was not sufficiently

supported by medical evidence, and that the ALJ improperly substituted his own lay

opinion for the opinions of treating or examining professionals. See Pratt v. Sullivan,

956 F.2d 830, 834 (8th Cir. 1992) (per curiam). Although the ALJ "bears the primary

responsibility for assessing a claimant's residual functional capacity based on all

relevant evidence," Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000), we have also

stated that a "claimant's residual functional capacity is a medical question," Singh, 222

F.3d at 451. "[S]ome medical evidence," Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir.

2000) (per curiam), must support the determination of the claimant's RFC, and the ALJ

should obtain medical evidence that addresses the claimant's "ability to function in the

workplace," Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). 

Therefore, although in evaluating Mr. Lauer's RFC, see 20 C.F.R. § 404.1545(c),

the ALJ was not limited to considering medical evidence, we believe that the ALJ was

required to consider at least some supporting evidence from a professional. Cf. Ford

v. Secretary of Health and Human Services, 662 F. Supp. 954 (W.D. Ark. 1987) (RFC

was "medical question," id. at 955, and medical evidence was required to establish how

claimant's heart attacks affected his RFC, id. at 956), cited with approval in Nevland,

204 F.3d at 858.

III.

Dr. John Bohrod, Mr. Lauer's treating psychiatrist, and Dr. Richard Henze, the

licensed psychologist who administered the Minnesota Multiphasic Personality

Inventory and the Wechsler memory and intelligence tests to Mr. Lauer at the request

of the Social Security Administration, agreed that Mr. Lauer's ability to perform

significant work-related functions was limited or nonexistent. For example, on the

forms assessing Mr. Lauer's mental RFC, each rated as "poor or none" Mr. Lauer's

ability to deal with work stresses and to deal with the public. In addition, Dr. Bohrod

stated that "all" of Mr. Lauer's "work activities" were "severely limited," while
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Dr. Henze described Mr. Lauer's condition as "incapacitat[ed]." The ALJ stated that

he did not "adopt" the opinions of these professionals, in part because the treating

psychiatrist did not rely on testing and in part because the psychologist who later

administered tests to Mr. Lauer was not a treating doctor (although he met with

Mr. Lauer three times and reviewed his medical records). 

Even if the ALJ provided ample reasons for his decision not to adopt the

opinions of Dr. Bohrod, see 20 C.F.R. § 404.1527(d)(2) (describing when treating

doctor's opinions are "controlling") or of Dr. Henze, we have located no medical

evidence to support the ALJ's conclusion that Mr. Lauer's mental impairments, the

existence of which the ALJ acknowledged, limited only the degree to which he could

interact with the public. On appeal, the social security commissioner argues that the

ALJ's conclusion is supported by the medical records of an earlier treating psychiatrist,

Dr. Scott McNairy, and by the mental RFC assessment of a nonexamining consultant,

Dr. Daniel Larson.

Dr. McNairy was Mr. Lauer's first psychiatrist. Mr. Lauer went to see

Dr. McNairy after more than two years of treatment by a chiropractor, neurologists,

and physical therapists for neck and back pain and headaches following a motor vehicle

accident. Dr. McNairy observed at that time that Mr. Lauer was "feeling rather

hopeless about his chances for recovery," and the doctor prescribed an antidepressant

for Mr. Lauer and diagnosed him with somatic pain disorder and possible

"psychological factors affecting physical condition." Although Dr. McNairy advised

Mr. Lauer to go to a pain clinic, Mr. Lauer was reluctant to do so because he thought

that it would be no different from what he had been doing on his own at a fitness

center. 

Although the social security commissioner argues that Dr. McNairy never

indicated that Mr. Lauer was unable to engage in work-related activities, Dr. McNairy

was never asked to express an opinion about that issue and he did not do so. Under the
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circumstances, we conclude that the absence of an opinion does not constitute

substantial evidence supporting the ALJ's findings. Cf. Rosa v. Callahan, 168 F.3d 72,

81 (2d Cir. 1999) (consultant's reports that were "silent on the issue" did not meet

commissioner's burden of establishing that claimant could perform sedentary work). 

We note, furthermore, that Dr. McNairy also did not state that Mr. Lauer could

engage in full-time employment and did not discharge him from treatment; to the

contrary, Dr. McNairy continued to see Mr. Lauer for therapy and to prescribe

antidepressants for him until Dr. Bohrod became Mr. Lauer's psychiatrist (about six

months before the ALJ hearing). We simply do not know the degree to which

Dr. McNairy believed that Mr. Lauer's mental impairments affected his ability to

perform work-related activities, nor do we know how Dr. McNairy would have

responded to Dr. Bohrod's or Dr. Henze's opinions or to the results of the psychological

tests that Dr. Henze administered to Mr. Lauer.

The commissioner also contends that Dr. Larson's assessment of Mr. Lauer's

mental RFC supports the ALJ's decision. Dr. Larson lacked both the benefit of

Dr. Bohrod's assessment and the opportunity to see Dr. Henze's records. Although

Dr. Larson indicated that Mr. Lauer had only minimal work-related limitations resulting

from depression, the weight given the opinions of "nonexamining sources" such as

Dr. Larson "depend[s] on the degree to which they provide supporting explanations,"

see 20 C.F.R. § 404.1527(d)(3), and Dr. Larson provided no specific medical findings

to support his mental RFC assessment. Also, Dr. Larson never examined Mr. Lauer.

Generally, even if a consulting physician examines a claimant once, his or her opinion

is not considered substantial evidence, especially if, as here, the treating physician

contradicts the consulting physician's opinion. See Onstead v. Sullivan, 962 F.2d 803,

805 (8th Cir. 1992).

In addition, in contrast to the ALJ, Dr. Larson did not find that Mr. Lauer

suffered from a somatoform disorder, which can in itself be a disabling impairment.
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See Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989). We must reject the

commissioner's contention that the ALJ relied on Dr. Larson's assessment of the

limitations caused by Mr. Lauer's mental impairments when Dr. Larson did not even

agree with the ALJ as to the existence vel non of those impairments. 

The decision of the ALJ is itself unclear as to the medical basis, if any, for his

assessment of the degree to which Mr. Lauer's mental impairments affected his RFC:

According to the ALJ, the neutral medical advisor who testified at the hearing

"concurred" in the ALJ's assessment of Mr. Lauer's "RFC," which was "based mostly"

on the opinion of one of Mr. Lauer's treating neurologists. In the first place, we note

that the neurologist, who last treated Mr. Lauer nearly a year before he sought

psychiatric treatment, did not address Mr. Lauer's mental impairments. As to the

medical advisor, who specializes in internal medicine, he did not assess Mr. Lauer's

mental RFC or indicate that Mr. Lauer's mental impairments limited him only in his

interactions with the public. Significantly, we believe, at the close of his testimony the

medical advisor agreed that a "full conclusion about [Mr. Lauer's] psychological

condition" was impossible without first obtaining the results of three standardized

psychological tests. Apparently in response to this testimony, after the hearing the

Social Security Administration asked Dr. Henze to administer the three tests to

Mr. Lauer. The ALJ rejected, however, virtually all of Dr. Henze's analysis of the test

results and never submitted the test results to the medical advisor or to any other

professional for review. 

Here the ALJ concluded that Mr. Lauer suffered from mental impairments, and

that conclusion is amply supported by the evidence. We believe that to determine

Mr. Lauer's RFC, however, the ALJ had to address complex medical issues that could

be resolved only with professional assistance, and that the professional opinions in the

record do not support the ALJ's assessment of the degree to which the mental

impairments affect Mr. Lauer's RFC. We therefore conclude that the ALJ's

determination of Mr. Lauer's RFC is not supported by substantial evidence. Because
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the hypothetical question posed to the vocational expert was based upon the faulty

determination of Mr. Lauer's RFC, the vocational expert's answer to that question

cannot constitute sufficient evidence that Mr. Lauer was able to engage in substantial

gainful employment. See Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998).

If the ALJ did not believe, moreover, that the professional opinions available to

him were sufficient to allow him to form an opinion, he should have further developed

the record to determine, based on substantial evidence, the degree to which Mr. Lauer's

mental impairments limited his ability to engage in work-related activities. See

Nevland, 204 F.3d at 858; see also 20 C.F.R. § 404.1519a(b). 

IV.

We therefore vacate the judgment of the district court and remand the case to the

district court with instructions to remand it to the Social Security Administration for

further consideration consistent with this opinion. We note, incidentally, that on

remand Mr. Lauer is entitled to a determination of how the combination of all of his

impairments (mental and physical) affects his ability to work. See Cunningham, 222

F.3d at 501. 

LOKEN, Circuit Judge, dissenting.

Robert Lauer applied for benefits on November 14, 1994, claiming a disability

onset date of August 31, 1993, caused by continuing pain from back, neck, leg, and arm

injuries in an auto accident. His application was denied in January 1995, and he

requested reconsideration in March 1995, alleging the same disabling physical

impairments. After the denial was upheld on reconsideration, Lauer requested a

hearing on June 12, 1995. Four days later -- nearly two years after the alleged

disability onset date -- Lauer was examined by a psychiatrist for the first time. On

August 22, 1996, three weeks after the administrative hearing, Dr. Bohrod wrote to

Lauer’s attorney that Lauer “may do some independent work.” Like the district court,
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I conclude that the administrative record, fairly viewed as a whole, contains substantial

evidence supporting the Commissioner’s decision to deny disability benefits.

Accordingly, I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.