United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2496

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Michael Brock, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Michael J. Astrue, Social Security *

Commissioner, *

*

Defendant - Appellee. *

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Submitted: January 10, 2012

Filed: March 28, 2012

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Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Michael Brock appeals the district court's order affirming the Commissioner's

denial of his application for supplemental security income benefits. Specifically, he

objects to the administrative law judge's finding, without considering the testimony

of a vocational expert, that Brock was able to engage in gainful activity. We reverse

and instruct the district court to remand the case for further proceedings.

Brock applied for supplemental security income on March 6, 2007. The

Commissioner denied benefits upon initial review of his application and again on
reconsideration. Brock then requested a hearing before an ALJ, which was held on

July 14, 2009. At the time of his hearing, Brock was twenty-one years old, had an

eighth-grade education, and had no transferable job skills or relevant work

experience. The ALJ found that Brock had severe mental impairments of anxiety

disorder and untreated attention deficit hyperactivity disorder. However, the ALJ

determined that, despite the severe mental impairments, Brock was able to

understand, remember, and carry out simple, unskilled work, and that he therefore had

the residual functional capacity ("RFC") to perform the full range of medium work

contemplated in the the Medical-Vocational Guidelines ("guidelines"). The

guidelines contain three "grids" in 20 C.F.R. pt. 404, subpt. P, app. 2 that set out

combinations of statutory criteria, and if a claimant fits one of those combinations,

the grids will direct a finding of either "disabled" or "not disabled." Considering

Brock's RFC, age, education, and work experience, the ALJ based his decision on

Rule 203.25, which directed a finding that Brock was "not disabled." The ALJ issued

his decision on November 18, 2009.

Brock appealed to the district court. Brock argued that the guideline grids are

only intended to direct disability decisions for claimants with exertional limitations. 

Because his impairments were solely nonexertional, Brock argued the ALJ should not

have relied solely on the guidelines and should have sought testimony from a

vocational expert before determining whether he was disabled. The magistrate judge

issued a memorandum opinion on May 31, 2011, finding that there was sufficient

evidence in the record to support the determination that Brock was "not disabled" and

affirming the Commissioner's decision.

We review de novo the district court's decision to uphold the Commissioner's

denial of supplemental security income benefits. Ellis v. Barhart, 392 F.3d 988, 993

(8th Cir. 2005). We affirm a denial of benefits if the adjudicator applied the correct

legal standards and there issubstantial evidence in the record to support the decision. 

Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011). Substantial evidence is

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evidence that a reasonable person might accept as adequate to support a decision but

is less than a preponderance. Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008). 

We consider the record as a whole, including evidence that detracts from, as well as

supports, the Commissioner's decision. Ellis, 392 F.3d at 993.

On appeal, Brock argues that the ALJ erred atstep five of the familiar five step

analysis outlined in 20 C.F.R. § 416.920(a)(4)(i)–(v). In the first foursteps, the ALJ 1

found that Brock was not currently employed, had severe mental impairments that

were not among those listed in the guidelines, and had no previous relevant work to

return to. Thus, at step five, the Commissioner bore the burden of establishing that,

given Brock's RFC, age, education, and work experience, there were a significant

number of other jobs in the national economy that Brock could perform. See Ellis,

392 F.3d at 993.

Specifically, Brock argues that the ALJ erred in relying solely on the guidelines

to determine that he could perform other jobs. Because Brock believes the ALJ

improperly relied on the guidelines, he asserts that there is not substantial evidence

in the record to demonstrate the Commissioner met his burden at step five. Brock

contendsthat because the guidelines are premised only on exertional limitations, they

are not meant to direct a conclusion of "disabled" or "not disabled" for individuals

who suffer solely from nonexertional impairments. See 20 C.F.R. pt. 404, subpt. P,

app. 2, § 200.00(e)(1); see also McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.

1982) (en banc) ("RFC is defined wholly in terms of the physical ability to perform

certain exertional tasks. If a claimant has a nonexertional impairment, the Guidelines

and grid are not controlling and cannot be used to direct a conclusion of disabled or

The five-step analysis asks(1) whether the claimant is currently employed;(2)

1

whether the claimant is severely impaired; (3) whether the impairment is, or

approximates, a listed impairment;(4) whether the claimant can performpastrelevant

work; and if not, (5) wether the claimant can perform any other kind of work. King

v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009).

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not disabled without regard to other evidence, such as vocational testimony."),

abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000). 

Brock contends his case fits within the general rule that, "if the claimant suffers from

nonexertional impairments that limit her ability to perform the full range of work

described in one of the specific categories set forth in the guidelines, the ALJ is

required to utilize testimony of a vocational expert." Reed v. Sullivan, 988 F.2d 812,

816 (8th Cir. 1993).

The Commissioner argues that this case meets an acknowledged exception to

that general rule. Because the ALJ made a finding of fact that Brock's severe mental

impairments did not limit his ability to performthe relevant range of work considered

in the guidelines, the Commissioner argues the guidelines can be used exclusively.

The exception to this general rule is that the ALJ may exclusively rely

on the guidelines even though there are nonexertional impairmentsif the

ALJ finds, and the record supports the finding, that the nonexertional

impairments do not significantly diminish the claimant's RFC to perform

the full range of activities listed in the guidelines. In other words, the

ALJ may rely on the guidelines to direct a conclusion of either disabled

or not disabled without resorting to vocational expert testimony if the

ALJ determines that a claimant's nonexertional limitations do not

significantly affect the claimant's RFC.

Reed, 988 F.2d at 816 (citation omitted); see also Ellis, 392 F.3d at 996. Thus, the

Commissioner argues that the need for a vocational expert depends on the ALJ's

factual determination that a claimant has a significantly diminished RFC, rather than

the mere existence of nonexertional limitations. In Thompson v. Bowen, 850 F.2d

346 (8th Cir. 1988), we said that "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'sresidual functional

capacity to perform the full range of activities listed in the Guidelines." Id. at

349–50. Thompson clarified that our case law should not be read to generally

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preclude any use of the guidelines when a nonexertional limitation was present, even

though some language from earlier cases might suggest that outcome. Id. at 349; see

also Tucker v. Heckler, 776 F.2d 793, 795–96 (8th Cir. 1985).

While the language of caseslike Tucker, Thompson, and Reed do lend support

to the Commissioner's position, we have on two occasions distinguished these

cases—where the extent of the nonexertional limitation depends on the credibility of

subjective testimony about pain—from cases where the nonexertional limitation is

caused by severe mental impairments. In Wheeler v. Sullivan, 888 F.2d 1233 (8th

Cir. 1989), we explained that the effect of pain bears a stronger relationship to the

claimant's exertional ability than the effect of severe mental impairments:

Objective tests of physical ability, reflected in the Guidelines, may

resolve the issue of whether the claimant is disabled by reason of pain.

A claimant with a severe mental impairment, however, may be incapable

of holding any job, even if the claimant's body is sound and his or her

physical ability unimpaired by pain or any other limiting condition. As

we read Thompson, it does not apply to claimants who, like Wheeler,

have been found to have severe mental impairment, and we distinguish

Thompson from the present case on that basis.

Id. at 1238–39.

We revisited Wheeler's distinction recently in King v. Astrue, 564 F.3d 978

(8th Cir. 2009). Although neither party in King addressed Wheeler, the panel

majority found its distinction was binding precedent and ruled that an ALJ improperly

relied exclusively on the Guidelines to determine a claimant with a severe mental

impairment was "not disabled." Id. at 979. The court noted that it could "find no

case in our circuitsanctioning the Commissioner's use of the [guidelines] atstep five,

as opposed to [vocational expert] testimony, in a case involving a severe mental

nonexertional impairment." Id.; see also Vincent v. Apfel, 264 F.3d 767, 769 (8th

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Cir. 2001) (noting that the court in Wheeler directed an ALJ to use vocational expert

testimony to determine RFC "if claimant suffers from severe mental impairment"). 

A dissenting judge in King argued thatWheeler was not binding precedent, and

that the rule in Thompson should apply even if the nonexertional impairment in

question was a severe mental impairment. See King, 564 F.3d at 980–81 (Loken, J.,

dissenting). The Commissioner now urges the court to follow the King dissent and

treat that case as an outlier from our other social security cases. However, “a panel

of this Court is bound by a prior Eighth Circuit decision unless that case is overruled

by the Court sitting en banc.” United States v. Wright, 22 F.3d 787, 788 (8th Cir.

1994). 

We are bound by the majority opinion in King. Thus, following the reasoning

in King and Wheeler, we conclude that the ALJ erred by relying solely on the

guidelines to determine Brock was "not disabled." Because the ALJ determined that

Brock suffered from severe mental impairments, the ALJ should have consulted a

vocational expert in determining whether Brock had the RFC to perform other jobs

that exist in significant number in the national economy. See Vincent, 264 F.3d at

769 (noting that an ALJ must use vocational expert testimony to determine the RFC

of a claimant who suffers from severe mental impairment); cf. Lucy v. Chater, 113

F.3d 905, 909 (8thCir. 1997) (holding an ALJ improperly applied guidelinesto direct

a conclusion of "not disabled" without consulting a vocational expert to assess

claimant's RFC in relation to her borderline intellectual functioning). 

Accordingly, we reverse the judgment of the district court and instruct the

district court to remand the case to the Commissioner for further proceedings

consistent with this opinion.

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