The HONORABLE MICHAEL J. MELLOY, Chief Judge, United States

1

District Court for the Northern District of Iowa, sitting by designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3059

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Robert L. Lucy, *

*

Plaintiff-Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Arkansas.

*

Shirley S. Chater, * 

Commissioner, Social Security *

Administration, *

*

Defendant-Appellee. *

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Submitted: February 13, 1997

 Filed: May 21, 1997 

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Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

MELLOY, District Judge. 1

_____________

HANSEN, Circuit Judge.
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Robert L. Lucy appeals the district court's grant of summary judgment affirming

the Social Security Commissioner's decision to deny his claim for supplemental security

income (SSI) benefits. We reverse and remand with instructions for the district court

to remand the case to the Commissioner for further proceedings. 

In his application for SSI benefits, Lucy alleged that he suffered from arthritis,

gout, breathing problems, a hernia, and ulcers. At a hearing before an administrative

law judge (ALJ), Lucy testified that he was 32 years old. He completed the eleventh

grade in high school with special education and obtained some special training at a

vocational-technical school. His past relevant work experience consisted of manual

labor. 

Lucy testified that he has pain in his legs, feet, lower back, knees, and stomach

and that he suffers from dizziness, causing him to fall down frequently. The ALJ found

that Lucy's subjective allegations of pain were not credible to the extent alleged. The

ALJ noted that while Lucy's activities are limited, his pain is controlled with

medication. 

Dr. David Kauffman performed two physical assessments of Lucy and found that

Lucy's main problem is morbid obesity. Dr. Kauffman stated that Lucy "should be able

to engage in virtually any work activity." (R. at 20.) He was of the opinion that normal

work activity would be good for Lucy in an effort to reduce his weight. To the

contrary, Dr. James R. Harbin, an attending physician while Lucy was hospitalized for

lesions on his legs, commented that Lucy suffered from shortness of breath and

degenerative joint disease; that Lucy was unable to sit, stand, walk, lift carry or handle

objects for any length of time; that he would be a danger to himself and others in the

workplace; and that Lucy's condition will not improve. Dr. Harbin concluded that Lucy

was permanently disabled. The ALJ specifically discredited the testimony of Dr.

Harbin as not supported by diagnostic tests and as inconsistent with the other

substantial medical evidence.
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Charles Spellman, Ph.D., performed a psychological exam on Lucy, who attained

a full-scale intelligence quotient of 78 on the Wechsler Adult Intelligence ScaleRevised. Dr. Spellman indicated that this score places Lucy in the borderline range of

intellectual ability. He concluded that Lucy displayed a good attention span, could

follow simple directions without difficulty, could handle a normal amount of stress, and

could relate appropriately to others. Dr. Spellman stated that overall, Lucy's reduced

intellectual ability can be expected to result in him performing at a level which is

considerably lower than other persons of the same age. In conclusion, Dr. Spellman

noted "[i]t appears that his disability should be based on a medical assessment." (R.

at 188.) 

The ALJ determined that Lucy suffers from severe impairments of morbid

obesity, gout, hypertension, peptic ulcer disease, eosinophilic cellulitis, and borderline

intellectual functioning, but that these impairments do not equal a listed impairment.

The ALJ noted that the gout, hypertension, and ulcers are controlled by medication and

the eosinophilic cellulitis has not been recurrent. The ALJ concluded that Lucy was

unable to return to his past relevant work but that he was capable of performing the full

range of sedentary work. Noting that the only restriction on his ability to perform the

full range of sedentary work is his borderline intellectual functioning, the ALJ

ultimately concluded that this restriction does not substantially limit Lucy's capacity to

perform the full range of sedentary work. Relying on the Medical-Vocational

Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ denied Lucy's claim for SSI

benefits. 

The Appeals Council denied further review, and Lucy appealed to the district

court. Both parties filed summary judgment motions. Lucy argued, in part, that the

ALJ erred by not using the testimony of a vocational expert to determine the extent to

which his nonexertional limitations may have limited his residual functional capacity

to perform the full range of sedentary work. The district court concluded that the ALJ

properly relied on the Guidelines because the record demonstrated that Lucy's
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borderline intellectual functioning did not prevent him from following simple

instructions, doing assigned tasks, or relating appropriately to others. Thus, the district

court granted the Commissioner's motion for summary judgment, affirming the decision

to deny Lucy's claim for benefits. Lucy appeals. 

We will affirm the Commissioner's decision to deny SSI benefits unless it is

unsupported by substantial evidence in the record as a whole or based on legal error.

Newton v. Chater, 92 F.3d 688, 691-92 (8th Cir. 1996). 

In this case, because the ALJ determined that Lucy could not return to his past

relevant work, the burden shifted to the Commissioner to prove that a significant

number of jobs exist in the national economy that he was capable of performing. Harris

v. Shalala, 45 F.3d 1190, 1194 (8th Cir. 1995). Instead of requiring the testimony of

a vocational expert to assess the impact of Lucy's nonexertional impairments, the ALJ

relied on the Medical-Vocational Guidelines to determine that Lucy was not disabled.

Lucy contends that the testimony of a vocational expert was necessary for the ALJ to

determine whether his nonexertional impairments rendered him unable to engage in the

full range of sedentary work. 

When a claimant suffers from exertional and nonexertional impairments, and the

exertional impairments alone do not warrant a finding of disability, the ALJ must

consider the extent to which the nonexertional impairments further diminish the

claimant's work capacity. Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir. 1988). 

If the claimant's characteristics do not differ significantly from those contemplated in

the Medical-Vocational Guidelines, the ALJ may rely on the Guidelines alone to direct

a finding of disabled or not disabled. Id. That is to say, "an ALJ may use the

Guidelines even though there is a nonexertional impairment if the ALJ finds, and the

record supports the finding, that the nonexertional impairment does not diminish the

claimant's residual functional capacity to perform the full range of activities listed in the

Guidelines." Id. at 349-50. We have explained as follows:
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In this context, "significant" refers to whether the claimant's nonexertional

impairment or impairments preclude the claimant from engaging in the full

range of activities listed in the Guidelines under the demands of day-today life. Under this standard isolated occurrences will not preclude the

use of the Guidelines, however persistent nonexertional impairments

which prevent the claimant from engaging in the full range of activities

listed in the Guidelines will preclude the use of the Guidelines to direct

a conclusion of disabled or not disabled. 

Id. at 350. 

We conclude that the ALJ inappropriately determined that Lucy could engage

in the full range of sedentary work without consulting the testimony of a vocational

expert. The ALJ's findings concerning Lucy's residual functional capacity are not

supported by substantial evidence because they do not consider the impact of all of

Lucy's nonexertional impairments, and they are internally inconsistent. The record

supports the ALJ's finding that Lucy suffers from borderline intellectual functioning.

Then, the ALJ found that Lucy's "residual functional capacity for the full range of

sedentary work is reduced by his borderline intellectual functioning," (Appellant's

Adden. at AD-9), but later the ALJ stated that Lucy's capacity for the full range of

sedentary work has not been significantly compromised by the nonexertional

limitations. Both of these findings cannot be supported by substantial evidence. 

We have previously concluded that borderline intellectual functioning, if

supported by the record as it is here, is a significant nonexertional impairment that must

be considered by a vocational expert. See Pickney v. Chater, 96 F.3d 294, 296-97 (8th

Cir. 1996) (finding claimant had a full-scale IQ of 78, which requires the consideration

of a vocational expert); Gude v. Sullivan, 956 F.2d 791, 796 n.3 (8th Cir. 1992) (noting

that borderline intelligence should be considered by vocational expert); Spencer v.

Bowen, 798 F.2d 275, 278 n.2 (8th Cir. 1986) (holding claimant's intellectual 
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impairment should be considered by a vocational expert). Thus, the ALJ erred by

relying only on the Guidelines. 

The Commissioner contends that a vocational expert was not necessary here

because, although Lucy suffers from a borderline intellect, Dr. Spellman noted that Lucy

could follow simple directions, and consequently, Lucy's impairment does not prevent

him from engaging in the full range of sedentary work. The Social Security's own list

of unskilled sedentary jobs, however (see Appellant's Adden. at AD-24-33), indicates

that many jobs within this range require more than the mental capacity to follow simple

instructions. For each job described, the Dictionary of Occupational Titles specifies the

type of reasoning capabilities the job requires. 2 U.S. Dep't of Labor, Dictionary of

Occupational Titles, 1010-11 (4th ed. 1991). For instance, a job rated reasoning level

one requires the ability to understand and carry out simple instructions, whereas a job

rated reasoning level two requires the ability to understand and carry out detailed

instructions. Id. at 1011. Many of the jobs listed require level two reasoning or higher

in the unskilled sedentary job category. Thus, contrary to the ALJ's conclusion, it

appears that Lucy's borderline intellectual functioning does have an impact on his

capacity to perform the full range of sedentary work. 

The Commissioner also relies on Dr. Spellman's conclusion that "[Lucy's]

disability should be based on a medical assessment," rather than a mental impairment.

(R. at 188.) This argument does not alter our conclusion. While borderline intellectual

functioning may not rise to the level of a disability by itself, a claimant is nevertheless

entitled to have a vocational expert consider this condition along with his other

impairments to determine how it impacts upon the claimant's residual functional capacity.

See Pickney, 96 F.3d at 297. 

The ALJ found morbid obesity to be Lucy's primary problem and concluded that

this impairment limited his mobility, but not to the extent asserted. Obesity is also a

nonexertional impairment which might significantly restrict a claimant's ability to
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perform the full range of sedentary work. See Evans v. Chater, 84 F.3d 1054, 1056 (8th

Cir. 1996). The impact of this nonexertional limitation should be considered by a

vocational expert in addition to Lucy's borderline intellectual functioning. Id. 

We conclude that the ALJ's decision is not supported by substantial evidence on

the whole record, because the ALJ improperly applied the Medical-Vocational

Guidelines to direct a conclusion that Lucy was not disabled without consulting a

vocational expert to assess Lucy's residual functional capacity in light of his significant

nonexertional impairments. On remand, a vocational expert should be called and asked

a hypothetical question which precisely sets forth all of Lucy's impairments. See id. 

Accordingly, we reverse the judgment of the district court and remand with

instructions for the district court to remand this case to the Commissioner for further

proceedings consistent with this opinion. 

A true copy.

Attest:

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