United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2188

___________

Annette Hayes, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Kenneth S. Apfel, Commissioner of *

Social Security, * [UNPUBLISHED]

*

Appellee. *

___________

 Submitted: August 5, 1999

 Filed: August 13, 1999 

___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Annette Hayes appeals from the final judgment entered in the District Court for

the Western District of Missouri upholding the final decision of the Commissioner of

Social Security to deny Hayes’s applications for disability insurance benefits and

supplemental security income. For reversal, Hayes argues, in part, that the

administrative law judge (ALJ) did not fully and fairly develop the record or evaluate

her mental impairments. For the reasons discussed below, we reverse the judgment of

the district court and remand for further proceedings. 
-2-

In determining whether substantial evidence on the record as a whole supports

the Commissioner’s finding of no disability within the meaning of the Social Security

Act, see Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir. 1995) (standard of review), we

are mindful that the ALJ--because an administrative hearing is not an adversarial

proceeding--has a duty to develop the record fully and fairly, even if the claimant is

represented by counsel, see Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994). Social

security regulations provide a mandatory procedure to evaluate mental impairments and

for examination by a psychiatrist or psychologist “in any case where there is evidence

which indicates the existence of a mental impairment.” See 20 C.F.R. §§ 404.1503(e),

404.1520a, 416.903(e), and 416.920a.

 

In applying for benefits, Hayes alleged she had been unable to work since

October 1991 solely because of physical problems, including back problems, diabetes,

blindness in her left eye, and poor vision in her right eye. However, by the time the

ALJ conducted a hearing in January 1994, the administrative record included evidence

indicating Hayes’s treating physician had diagnosed depression, had made frequent

notes discussing Hayes’s symptoms related to her depression, and had prescribed

medication and discussed therapy. In a February 1995 decision, the ALJ concluded

that Hayes was not disabled within the meaning of the Social Security Act. The ALJ

did not, however, order any type of psychological evaluation, discuss in his decision

the medical evidence related to Hayes’s depression, or complete a psychiatric review

technique form (PRTF). 

After the Appeals Council declined Hayes&s request for review, she commenced

this action by filing a complaint in federal court. Prior to filing a motion for summary

judgment, Hayes filed two motions to remand the cause to the Commissioner for

another hearing based on new evidence, including cognitive and psychological
1Although the district court denied Hayes’s motion to remand and the supporting

evidence is not part of the administrative record, we note that the cognitive evaluation

included administration of the Wechsler Adult Intelligence Scale-Revised (WAIS-R),

on which Hayes achieved a verbal IQ score of 72, a performance IQ score of 65, and

a full scale IQ score of 70. Her overall cognitive abilities were in the borderline range,

her overall nonverbal abilities were in the mild mental retardation range, and her

individual skill levels were found to range from mental retardation to low average. The

psychological summary included a diagnosis of a recurrent major depressive disorder,

and noted that Hayes was then under psychiatric care and was also seeing a

psychologist, that she was taking Prozac, and that her son had recently been killed. 

-3-

assessments completed in November and December 1996.1 Despite finding that much

of the new evidence submitted by Hayes concerning her mental impairment was

relevant, not merely cumulative, and was probative of Hayes’s condition for the time

period for which benefits were denied, the district court denied the motions to remand

because it found Hayes did not establish good cause for failing to develop and offer the

evidence earlier in the administrative proceedings. In denying Hayes’s subsequent

motion for summary judgment, the district court found, in relevant part, that although

there were frequent references to depression in the record, the ALJ had not been

required to develop the record on Hayes’s mental health issues or to complete a PRTF

because Hayes’s medical records did not show a disabling mental condition, the

consulting physician’s evaluation revealed no mental health concerns, and Hayes did

not raise any mental health complaints during the administrative process. 

In this timely appeal, Hayes argues that the district court applied the wrong

standard in analyzing whether the ALJ failed to develop the record on her mental

impairments given the procedure mandated by the regulations. We agree, and therefore

conclude that substantial evidence on the record as a whole does not support the

Commissioner’s decision. See 20 C.F.R. § 404.1503(e) (discussing procedure to be

followed where evidence “indicates the existence of a mental impairment”); 20 C.F.R.

§ 416. 903(e) (same); Battles, 36 F.3d at 44-45; Montgomery v. Shalala, 30 F.3d 98,

100 (8th Cir. 1994) (testimony elicited by hypothetical questions that do not relate with
-4-

precision all of claimant’s impairments cannot constitute substantial evidence to

support ALJ’s decision to deny benefits; remanding where ALJ did not accurately

summarize claimant’s mental status in hypothetical posed to VE, and holding ALJ’s

failure to complete PRTF was not harmless); cf. Delrosa v. Sullivan, 922 F.2d 480,

484-85 (8th Cir. 1991) (noting ALJ may not refuse to accept “psychological overtones”

of examining physicians’ diagnoses). 

In addition, although we do not agree that the hypothetical posed to the

vocational expert was fatally defective for not including some of Hayes’s impairments

and limitations, we do agree that the vocational expert’s response to the hypothetical

did not support the ALJ’s conclusion that she could work. It is undisputed that the

vocational expert did not mention any sedentary jobs after stating that Hayes was

limited to sedentary work and did not specifically indicate whether the light jobs he

cited as examples of available work she could perform would meet Hayes’s limitation

on standing and walking. See 20 C.F.R. § 404.1567(b) (job is in light category “when

it requires a good deal of walking or standing, or when it involves sitting most of the

time with some pushing and pulling of arm or leg controls”).

We do not address Hayes’s other arguments on appeal, not because we find them

to be wholly without merit, but because it is unlikely that the same issues will reoccur

on remand. Specifically, we trust the Commissioner will need to elicit further input

from a vocational expert after developing the record relevant to Hayes’s mental

impairment. 

Accordingly, we reverse the judgment of the district court and remand this case

with instructions to remand to the Commissioner for further proceedings.
-5-

A true copy.

Attest:

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