### *The Honorable JOHN F. NANGLE, United States Distric t

Judge for the Eastern District of Missouri, sitting b y designation. ___________ No. 95-3595

___________ Joe Pickney, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Shirley S. Chater, * Commissioner, Social Security * Administration, * * Appellee. *

___________ Submitted: April 11, 1996 Filed: September 17, 1996

___________ Before BEAM and MURPHY, Circuit Judges, and NANGLE, District Judge. *

___________ BEAM, Circuit Judge.
Joe Pickney appeals the denial of So cial Security benefits. Because the Ad ministrative Law Judge (ALJ) failed to include Pickney's menta l impairments in the hypothetical question posed to the vocational expert, we reverse and remand.

I. BACKGROUND
Pickney is forty-eight years old. He has a tenth grade educati on and
was previo usly employed as a truck driver, a carpenter's helper and a machinerydriver at a rock quarry. He filed this application for Social Securitybenefits on March 11, 1991, alleging a disability onset date of August 10, 1988. On that date, Pickney was involved in a truck accident and suffered

### The hypothetical question was: 1


### Let me ask you this--assuming that I find that he doesn' t actually experience any mental limitations other than-- well, the hypothetical didn't include any so let me ask youto assume that I would find that he didn't experienc e any mental limitations and tha t the only restrictions he wou ld have would be those related to his age an d education. What period of vocational adjustment, if any , would be necessary then? Administrative Transcript at 65.
-2- mu ltiple injuries, including a scalp laceration and underlying skul l fractu re of the frontal bone, a frontobasilar skull fracture, spleni c rupture, meningitis due to a cerebrospinal fluid leak and a fibula r fracture. As a result, he suffers from vision and knee problems. He is also sensitive to exposure to the sun and has memory problems.

After his application for benefits was denied initially and o n
rec onsideration, Pickney appealed and a hearing was held before an ALJ

. At t he hearing, Pickney testified that he has very little periphera l vision, memory problems and pain in his knee. P ickney's wife corroborated his testimony. A voc ational expert then testified that Pickney could not return to his former work. In response to a hypothetical question posed by the ALJ, the vocational expert s tated that there are unskilled jobs in 1 the national economy that a man with Pickney's experience and limitations (lack of peripheral vision and sun sensitivity) could perform. At th e close of the hearing, the ALJ kept the record open for submission o f additi onal evidence. Pickney submitted reports of examinations by a psychologist and an internist.

In his report, the psychologist, Dr. Russell Dixon, noted tha t Pickneyhas a full scale I.Q. on the Wechsler Adult Intelligence Scale

Revised (WAIS-R) of 7 8, a verbal I.Q. of 82 and a performance I.Q. of 76, which puts him in the range of "Borderline Intellectual

### The special procedures for mental impairment claims als o 2 

### require either the ALJ or a ps ychiatrist to complete a Psychiatric Review Technique Form (PRTF). Pratt v. Sullivan , 956 F.2d 8 30, 834 (8th Ci r. 1992). Here, the ALJ completed the PRTF and foun d evidence of Organic Mental Disorder and Mental Retardation and Autism. On making these findi ngs the ALJ was required to complete a functional limitation checklist, or "B" criteria of the li stings, for each of those mental disor ders. See generally Pratt , 956 F.2d at 834 n.7. His findings corr espond with those "B" criteria. The ALJ es sentially found that although Pickney has evidence of th e disord ers, his limitations were not of listing-level severity

. -3- Functioning." Administrative Transcript at 275. Dr. Dixon also foun d "[n]europsychological test performance compatible with the residuals of a closed head injury--l evel of impairment--moderate--adaptive abilities are significantly compromised." Id. at 277. He fur ther found "simple problem
so lving was mildly impaired," "two-step problem solving was severel y impaired," "slowing o f right hand motor speed," "abstract reasoning . . . in the impaired range," "spatial problem solving . . . in the impaire d rang e," and "moderate generalized neuropsychological dysfunction in a n individual with probable premorbid Borderline Intellectual Functioning. " Id. at 275-77.

Dr. John Ashley, an internist, noted that Pickney's primary problem is "the loss of useab le vision bilaterally, which is not due to injury to the eyeballs themselves, but is due to brain damage secondary to th e fracture and possibly to the meningitis and small brain abscess, whic h developed following t he injury." Id. at 280. He also noted that Pickney experiences "considerable difficulty in thinkingand in acting as a result of his brain injury." Id. Dr. Ashley's diagnosis included "mild dementia , second aryto brain damage, with memory loss, confusion, difficulty wit h speech . . . [and] in coordination in anything involving balance." Id. at 281.

The ALJ considered these reports but found "[t]he claimant' s border line functioning has resulted in only a slight restriction o f activit ies of daily living, slight difficulties in maintaining socia l functioning with often deficiencies of concentration and never any episode s of dete rioration or decompensation in work or work-like settings." Id

. 2

### This i s a different inquiry than whether the mental limitation s

should have been posed to the vocational expert.
-4- at 18. He noted:

### -5- [w]hile the undersigned recognizes that the hypothec [sic ] directed to the vocation al expert did not specifically include limitations in detailed/complex work (which is based on th e cla imant's borderline IQ), the undersigned recognizes th e vocational expert testified the jobs identified wer e unskilled, based o n an assumption of a head injury. Thus, it appear s these additional limitations were assumed by the vocationa l expert. Id. at 19. Accordingly, the ALJ found that Pickney retains the residual functional capacity to perform jobs that exist in significant numbers in the national economy.
Pickneyappealed to the district court and the district cour t affirmed, noting "substantial evidence in the record as a whole supports the ALJ's conclusion that plaintiff did not meet or equal listing 12.0 2 (orga nic mental disorder) or 12.05 (mental retardation or autism). " Pickn eyv. Chater , No. J-C-93-423, Memorandum and Order at 7 (E.D. Mo

. Sept. 28 , 1995). Additionally, the district court found that "th e hypothetical question posed to the vocational expert properly included all impairm ents that were supported by substantial evidence, and exclude d plain tiff's other alleged impairments." Id. at 9. On appeal, Pickne y asserts e rror in the failure of the ALJ to pose a hypothetical to th e vocational expert that included Pickney's mental impairments.

II. DISCUSSION

We must affirm the decision of the ALJ if it is supported b y substantial evidence in the record as a whole. Smith v. Shalala ,

### -6-

31 F.3d 715, 717 (8th Cir. 1994). Substantial evidence is less than a preponderance, but enough so that a reasonable m ind might find it adequate to support the conclusion. Oberst v. Shalala , 2 F.3d 249, 250 (8th Cir. 1993). The testimony of a vocational expert is required when a claimant has satis fied his initial burden of showing that he is incapable o f performing his past r elevant work. Johnston v. Shalala , 42 F.3d 448, 452 (8th Cir. 1994).
Testimony

from a vocational expert constitutes substantial evidence only when based on a properly phrased hypothetical question. Cruze v
. Chater , 85 F.3d 1320, 1323 (8th Cir. 1996) When a hypothetical question do es not encompass all relevant impairments, the vocational expert' s testimonydoes not constitute substantial evidence. Hinchey v. Shalala , 29 F.3d 428, 432 (8th Cir. 1994). Thus, the ALJ's hypothetical question must i nclude those impairments that the ALJ finds are substantiall y supported by the record as a whole. See Stout v. Shalala , 988 F.2d 853, 855 (8th Cir. 1993).

In this case, the ALJ acknowledged that Pickney has menta l impairments and that finding is supported by objective evidence--the I.Q. scores. The ALJ did not merely fail to mention the mental impairment, he expresslydirected the vocational expert to assume that Pickney had n o mental impairments. We disagree that the vocational expert could either
assume that Pickney had mental impairments because of his head injury or that his mental impairments were irrelevant for performance of unskilled jobs.

That P ickney's Borderline Intellectual Functioning was not o f listing-level severity does not alter our conclusion. A claimant with a mental disorder of listing-level severity would be entitled to benefits on that basis alone. See Pratt v. Sullivan , 956 F. 2d 830, 835 n.11 (8th Cir. 1992). That is not the issue here, however. It has long been the rule in this circuit that a hypothetical question posed to an ALJ must contain all of

### It is of no consequence whether the Borderline Intellectual 3 

### Fu nctioning pre-dated the accident or not--the vocational exper t still had to consider it in conjunction with Pickney's othe r impairments. The fact that the reports were received in evidence after the hearing is similarly of no consequence since the AL J could have posed a proper hypo thetical to the vocational expert by way of interrogatory or could have reconvened the hearing.

-7- claimant's impairments that are supported by the record. See Ledoux v

. Schweiker , 732 F.2d 1385, 1388 (8th Cir. 1984). A hypothetical question posed to a vocational expert must capture the concrete consequences o f claimant's deficiencies. See , e.g. , Roe v. Chat er , 1996 WL 447738, *2 n.2 (8th Cir. Aug. 9, 1996) (the hypothetical stated: "history of bipola r aff ective disorder, low average intelligence, developmental dyslexia , history of conversion reaction . . . able to do more than simple, routine, repetitive work, not relying on written instruction or on written matter, and not requiring constant, close supervision to detail" ). Pickney' s Borderline Intellectu al Functioning is supported by the record and he was entitled to have the vocational expert consider this along with Pickney's other impairments. 3

III. CONCLUSION

For the reasons stated above, we reverse and instruct the distric t court to remand to the Commissioner for proceedings consistent with this opinion.

A true copy.

Attest:

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