*The Honorable JOHN F. NANGLE, United States District

Judge for the Eastern District of Missouri, sitting by

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. *

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 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 Social Security benefits. Because

the Administrative Law Judge (ALJ) failed to include Pickney's mental

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 education and

was previously employed as a truck driver, a carpenter's helper and a

machinery driver at a rock quarry. He filed this application for Social

Security benefits 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

you to assume that I would find that he didn't experience

any mental limitations and that the only restrictions he

would have would be those related to his age and

education. What period of vocational adjustment, if any,

would be necessary then?

Administrative Transcript at 65.

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multiple injuries, including a scalp laceration and underlying skull

fracture of the frontal bone, a frontobasilar skull fracture, splenic

rupture, meningitis due to a cerebrospinal fluid leak and a fibular

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 on

reconsideration, Pickney appealed and a hearing was held before an ALJ.

At the hearing, Pickney testified that he has very little peripheral

vision, memory problems and pain in his knee. Pickney's wife corroborated

his testimony. A vocational 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 stated 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 the

close of the hearing, the ALJ kept the record open for submission of

additional evidence. Pickney submitted reports of examinations by a

psychologist and an internist. 

In his report, the psychologist, Dr. Russell Dixon, noted that

Pickney has a full scale I.Q. on the Wechsler Adult Intelligence ScaleRevised (WAIS-R) of 78, 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 also

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require either the ALJ or a psychiatrist to complete a Psychiatric

Review Technique Form (PRTF). Pratt v. Sullivan, 956 F.2d 830, 834

(8th Cir. 1992). Here, the ALJ completed the PRTF and found

evidence of Organic Mental Disorder and Mental Retardation and

Autism. On making these findings the ALJ was required to complete

a functional limitation checklist, or "B" criteria of the listings,

for each of those mental disorders. See generally Pratt, 956 F.2d

at 834 n.7. His findings correspond with those "B" criteria. The

ALJ essentially found that although Pickney has evidence of the

disorders, his limitations were not of listing-level severity.

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Functioning." Administrative Transcript at 275. Dr. Dixon also found

"[n]europsychological test performance compatible with the residuals of a

closed head injury--level of impairment--moderate--adaptive abilities are

significantly compromised." Id. at 277. He further found "simple problem

solving was mildly impaired," "two-step problem solving was severely

impaired," "slowing of right hand motor speed," "abstract reasoning . . .

in the impaired range," "spatial problem solving . . . in the impaired

range," and "moderate generalized neuropsychological dysfunction in an

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 useable vision bilaterally, which is not due to injury to

the eyeballs themselves, but is due to brain damage secondary to the

fracture and possibly to the meningitis and small brain abscess, which

developed following the injury." Id. at 280. He also noted that Pickney

experiences "considerable difficulty in thinking and in acting as a result

of his brain injury." Id. Dr. Ashley's diagnosis included "mild dementia,

secondary to brain damage, with memory loss, confusion, difficulty with

speech . . . [and] incoordination in anything involving balance." Id. at

281.

The ALJ considered these reports but found "[t]he claimant's

borderline functioning has resulted in only a slight restriction of

activities of daily living, slight difficulties in maintaining social

functioning with often deficiencies of concentration and never any episodes

of deterioration or decompensation in work or work-like settings." Id.

2
This is a different inquiry than whether the mental limitations

should have been posed to the vocational expert. 

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at 18. He noted: 
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[w]hile the undersigned recognizes that the hypothec [sic]

directed to the vocational expert did not specifically include

limitations in detailed/complex work (which is based on the

claimant's borderline IQ), the undersigned recognizes the

vocational expert testified the jobs identified were unskilled,

based on an assumption of a head injury. Thus, it appears

these additional limitations were assumed by the vocational

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. 

Pickney appealed to the district court and the district court

affirmed, noting "substantial evidence in the record as a whole supports

the ALJ's conclusion that plaintiff did not meet or equal listing 12.02

(organic mental disorder) or 12.05 (mental retardation or autism)."

Pickney v. Chater, No. J-C-93-423, Memorandum and Order at 7 (E.D. Mo.

Sept. 28, 1995). Additionally, the district court found that "the

hypothetical question posed to the vocational expert properly included all

impairments that were supported by substantial evidence, and excluded

plaintiff's other alleged impairments." Id. at 9. On appeal, Pickney

asserts error in the failure of the ALJ to pose a hypothetical to the

vocational expert that included Pickney's mental impairments.

II. DISCUSSION

We must affirm the decision of the ALJ if it is supported by

substantial evidence in the record as a whole. Smith v. Shalala,
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31 F.3d 715, 717 (8th Cir. 1994). Substantial evidence is less than a

preponderance, but enough so that a reasonable mind 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 satisfied his initial burden of showing that he is incapable of

performing his past relevant 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

does not encompass all relevant impairments, the vocational expert's

testimony does not constitute substantial evidence. Hinchey v. Shalala,

29 F.3d 428, 432 (8th Cir. 1994). Thus, the ALJ's hypothetical question

must include those impairments that the ALJ finds are substantially

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 mental

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

expressly directed the vocational expert to assume that Pickney had no

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 Pickney's Borderline Intellectual Functioning was not of

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

Functioning pre-dated the accident or not--the vocational expert

still had to consider it in conjunction with Pickney's other

impairments. The fact that the reports were received in evidence

after the hearing is similarly of no consequence since the ALJ

could have posed a proper hypothetical to the vocational expert by

way of interrogatory or could have reconvened the hearing.

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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 of

claimant's deficiencies. See, e.g., Roe v. Chater, 1996 WL 447738, *2 n.2

(8th Cir. Aug. 9, 1996) (the hypothetical stated: "history of bipolar

affective 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 Intellectual 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 district

court to remand to the Commissioner for proceedings consistent with this

opinion.

A true copy.

Attest:

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