The Honorable Lyle E. Strom, United States District Judge for 1

the District of Nebraska, sitting by designation.

 Sird filed his original application for SSI benefits on

2

September 27, 1991, alleging disability since 1990. The ALJ denied

benefits, and the Appeals Council reversed and remanded. The ALJ

again denied benefits, and the Appeals Council again reversed. The

ALJ denied benefits a third time. The Appeals Council denied

review in August 1995. In May 1996, the district court affirmed

the ALJ decision, almost five years after Sird's initial request.

It is this ruling Sird appeals.

___________

No. 96-2466

___________

Donald Sird, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the 

* Southern District of Iowa.

Shirley S. Chater, Commissioner *

of Social Security Administra- *

tion, *

*

Defendant-Appellee.

___________

 Submitted: December 13, 1996

 Filed: January 27, 1997

___________

Before BOWMAN and LAY, Circuit Judges, and STROM, District Judge. 1

___________

LAY, Circuit Judge.

Donald Sird seeks supplemental security income (SSI) benefits based

on disability under Title XVI of the Social Security Act, 42 U.S.C. § 1381

et seq. On January 27, 1995, following an administrative hearing, an

Administrative Law Judge (ALJ) found that Sird was not entitled to any

benefits. The Appeals Council denied review and on review to the district

court, the ALJ decision was upheld. We reverse and vacate the judgment; 2

we remand to the
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Secretary for the purpose of awarding benefits.

 Sird has an IQ score falling within the range listed in 20 C.F.R.,

pt. 404, subpt. P, app. 1, § 12.05(c) (hereinafter § 12.05(c)). This

section provides that an individual meets the required level of severity

for disability based on mental retardation if the individual has "[a] valid

verbal, performance, or fullscale IQ of 60 through 70 and a physical or

other mental impairment imposing additional and significant work-related

limitation of function." § 12.05(c) (our emphasis). 

The ALJ, however, found that while Sird may meet the first prong of

§ 12.05(c), he did not have "a physical or other mental impairment imposing

additional and significant work-related limitation of function." ALJ

Decision, dated Jan. 27, 1995, at 7 (quoting § 12.05(c)). Relying on a

vocational expert's opinion that Sird could perform light or sedentary work

available in the community, the ALJ denied Sird benefits.

The issue here, therefore, rests upon whether Sird has a physical or

mental impairment, besides his conceded mental impairment, which imposes

a "significant work-related limitation of function." If so, he qualifies

as disabled under § 12.05(c), and the inquiry ends. 

Besides borderline intellectual capacity, the ALJ found Sird suffered

from a history of alcoholism, a history of chronic obstructive pulmonary

disease, and a history of urinary tract infection. ALJ Decision at 15.

The ALJ then found that the combination of these impairments restricts Sird

as follows:

He must avoid extremes of hot and cold conditions. He must

avoid moving machinery, more than moderate levels of
 The Dictionary of Occupational Titles (DOT) classifies jobs

3

in part with a physical demands rating. The rating system assigns

a rating of "sedentary," "light," "medium," "heavy," or "very

heavy" to each job the DOT lists. While the vocational expert

testified Sird could perform only jobs in the "light" or

"sedentary" category, his past jobs are assigned significantly

higher physical demands ratings. According to the DOT, the jobs of

forklift driver (921.683-050) and box marker (652.685-018) require

"medium" physical demands, while truck-driver helper (905.687-010)

is assigned a rating of "heavy", and construction worker (869.687-

026) is assigned a rating of "very heavy."

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dust, fumes, and smoke. He should perform no work that

requires clear oral communication. He is able to do only

simple, routine, repetitive work with no written material or

math computation. His work should not require constant, very

close attention to detail or use of independent judgment for

decisionmaking. He should have no more than occasional contact

with the public and needs occasional supervision. He is able

to work at no more than a regular pace.

Id. at 16.

This finding necessarily incorporates a determination that Sird's

ability to work has been additionally impaired in the period since he

performed past relevant work. A vocational expert testified Sird's past

relevant work included work as a forklift driver, a box marker, a

construction worker, and a truck-driver helper. Id. at 14. Since these

jobs are obviously more strenuous than the "light" and "sedentary" work the

vocational expert testified Sird could perform, the ALJ concluded Sird

could not perform his past relevant work. In our opinion, this finding

3

cannot be squared with the later finding that Sird does not have an

impairment significantly limiting his ability to work that is unrelated to

his IQ.

 Neither party presented evidence that Sird's mental impairments have

deteriorated since performing his past relevant
 The Secretary's regulations "expressly define mental

4

retardation as denoting 'a lifelong condition.'" Branham v.

Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985) (quoting 20 C.F.R.,

pt. 404, subpt. P, app. 1 § 12.00(B)(4)). "[I]n the absence of any

evidence of a change in a claimant's intelligence functioning, it

must be assumed that the claimant's IQ [has] remained relatively

constant." Luckey v. Dept. of Health & Human Serv., 890 F.2d 666,

668 (4th Cir. 1989) (per curiam).

 Other circuits have approached the issue along the same

5

lines. See, e.g., Nieves v. Secretary of Health & Human Serv., 775

F.2d 12, 14 (1st Cir. 1985) ("An impairment imposes significant

limitations when its effect on a claimant's ability to perform

basic work activities is more than slight or minimal."); Edwards v.

Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985) ("That 'significant'

involves something more than 'minimal' but less than 'severe'

follows from the regulations.")

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work. Therefore, it is a reasonable assumption that the ALJ's opinion

4

limiting Sird to light or sedentary work, as opposed to the heavier work

he was performing before, is related not to his mental impairment, but to

the physical impairments pointed out above.

The issue thus boils down to whether these limitations are

sufficiently significant to find that Sird qualifies for benefits under

§ 12.05(c). The ALJ found that Sird could perform some light or sedentary

jobs. On this basis, the ALJ denied benefits because Sird was not

prevented from performing all gainful activity. We respectfully submit

this analysis is circuitous. The issue is not whether the claimant can

perform gainful activity; rather, it is whether he has a physical

impairment, other than his conceded mental impairment, which provides

significant work-related limited function--in other words, whether the

second prong of § 12.05(c) is met. 

Our court originally reviewed this issue in Cook v. Bowen, 797 F.2d

687 (8th Cir. 1986). There, we held that the second prong of § 12.05(c)

is met when the claimant has a physical or additional mental impairment

that has a "more than slight or minimal" effect on his ability to perform

work. Id. at 690. In Warren v. 5
 With all due respect to Judge Bowman's dissent, the issue

6

cannot be one of whether the petitioner can perform substantial

gainful activity; the effect of this investigative focus is to

empty § 12.05 of meaning. What the dissent overlooks is that the

purpose of § 12.05(c) is to compensate a claimant with an IQ in the

60-70 range and a limitation of function that affects his work.

Our relevant inquiry under § 12.05(c) is whether, in addition to

Sird's conceded mental impairment, he has a work-related impairment

of function. Under the findings of the ALJ, there can be little or

no question that one exists: he can no longer do his past relevant

"heavy" work, but instead is relegated to "light" or "sedentary"

work. The dissent's failure to recognize this limitation as one

that is "more than slight or minimal" is not in accordance with the

cases of this circuit or any other.

Judge Bowman relies upon 20 C.F.R. § 416.905(a), which states

that to meet the definition of disability, a claimant must have a

"severe impairment, which makes [him] unable to do [his] previous

work or any other substantial gainful activity which exists in the

national economy." (Judge Bowman's emphasis). This language is

not relevant to a determination of disability under 12.05(c). If

the defendant has, as in this case, a conceded mental impairment,

and in addition has a significant work-related physical impairment

of function, then whether the claimant can perform other gainful

activity is not relevant. As the First Circuit noted, "[I]f the

claimant meets a listed impairment [under, e.g., § 12.05(c)], the

Secretary is required to find a claimant disabled and not consider

whether he or she could perform other work." Nieves, 775 F.2d at

13 (emphasis added); see also 20 C.F.R. § 404.1520(d) ("If you have

an impairment(s) which . . . is listed in appendix 1 . . . , we

will find you disabled without considering your age, education, and

work experience.") (emphasis added).

-5-

Shalala, 29 F.3d 1287 (8th Cir. 1994), we reaffirmed that test, relying in

part on a Fourth Circuit opinion which held that to be "significant" the

functional limitation under § 12.05(c) "need not be disabling in and of

itself." Branham v. Heckler, 775 F.2d 1271, 1273 (4th Cir. 1985). As the

Branham court reasoned, "If the plaintiff's physical impairment were

required to be independently disabling, section 12.05(c) would be rendered

meaningless. Therefore, something less than a preclusion from any

substantial gainful employment must apply." Id. 6

The Branham court went on to hold that if a claimant cannot perform

his past relevant work, he "experiences a significant work
 The Fourth Circuit has followed Branham in subsequent cases. 7

See Flowers v. Department of Health & Human Serv., 904 F.2d 211

(4th Cir. 1990); Luckey v. Department of Health & Human Serv., 890

F.2d 666 (4th Cir. 1989). The Secretary has filed an acquiescence

to these holdings but has limited it to cases arising in the Fourth

Circuit. AR 93-1(4).

-6-

related limitation of function" and meets the second prong of § 12.05(c).

Id. We think this conclusion is ineluctable. 

7

The Secretary urges that the Fourth Circuit ruling establishes a per

se rule and that a better practice would be to interpret § 12.05(c) under

the Eighth Circuit's "more than slight or minimal" test. In this case, we

are not convinced these two tests are different in their application. In

both Branham and the present case, the claimants' physical impairments

prevent them from carrying on past relevant work. Sird's past relevant

work required a full range of functions, while his current physical

limitations relegate him to light or sedentary work. It requires little

scrutiny to say this scenario constitutes a work-related limiting function

that is more than slight or minimal. In the present case, under either

test, the claimant is entitled to benefits.

Judgment vacated; the cause is remanded to the Secretary with

directions to award the claimant benefits.

BOWMAN, J., dissenting.

I respectfully dissent.

The regulations promulgated under Title XVI of the Social Security

Act set out a sequential analysis for evaluating a claimant's alleged

disability for the purposes of awarding Supplemental Security Income (SSI)

benefits. The administrative law judge (ALJ) follows this analysis when

reviewing the Commissioner of Social Security's decision to grant or deny
-7-

benefits. First, the ALJ determines whether the claimant is engaged in

"substantial gainful activity." 20 C.F.R. § 416.920(b) (1996). If so, the

claimant is not disabled. If not, and it is undisputed here that Sird is

not working, then the ALJ advances to the next step and decides if the

impairment alleged by the claimant is severe, that is, whether it

"significantly limits [his] physical or mental ability to do basic work

activities." Id. § 416.920(c). If it is not severe (or does not meet the

durational requirements), the applicant is not disabled. See id. An

impairment is disabling within the meaning of the regulations if it meets

or equals an impairment "listed in appendix 1." Id. § 416.920(d).

The ALJ held that Sird does not have a listed impairment, but the

Court rejects that conclusion and holds that Sird has the impairment

described in § 12.05C of 20 C.F.R., Part 404, Subpart P, Appendix 1 (1996).

Under § 12.05C, a claimant's disability is sufficiently severe to warrant

the award of benefits if (1) his IQ score is in the range of 60 through 70

and (2) he has "a physical or other mental impairment imposing additional

and significant work-related limitation of function." The Commissioner has

conceded that Sird's IQ falls within the applicable range, and the Court

now concludes that Sird has the requisite additional limitation. I

disagree.

Because the ALJ found in his review that Sird has no listed

impairment, he completed the sequential analysis for SSI disability. The

ALJ determined that Sird did not have a listed impairment but that he

nevertheless could not do his past relevant work. See 20 C.F.R.

§ 416.920(e) (1996). That did not end the inquiry, however. The ALJ went

on to conclude that Sird retained "residual functional capacity" and,

considering all pertinent factors (including a vocational expert's

opinion), the ALJ determined that Sird was able to "do other work" despite

his impairment, and thus was not disabled. Id. § 416.920(f)(1). It is

upon this finding that the Court seizes to reverse the decision not
-8-

to award SSI benefits to Sird.

Relying on the Fourth Circuit's opinion in Branham v. Heckler, 775

F.2d 1271 (4th Cir. 1985), the Court uses the ALJ's finding that Sird

retained some ability to work (which in fact led to a conclusion of no

disability) in order to bootstrap an "additional and significant workrelated limitation of function" within the meaning of § 12.05C. This seems

to me counterintuitive--to rely on the evidence supporting a decision that

Sird is not disabled to support the Court's holding that he is. I reject

the per se effect the Court wishes to give a conclusion by the ALJ--which

will be reached only if the ALJ decides the claimant has no listed

impairment in the first place--that the claimant's inability to perform his

past relevant work but his retention of the capacity to perform other work

(together with the necessary mental impairment) will qualify him to receive

SSI benefits. 

"The law defines disability as the inability to do any substantial

gainful activity by reason of any medically determinable physical or mental

impairment . . . ." 20 C.F.R. § 416.905(a) (1996). "To meet this

definition, [a claimant] must have a severe impairment, which makes [him]

unable to do [his] previous work or any other substantial gainful activity

which exists in the national economy." Id. (emphasis added). This

provision closely tracks the language of the governing statute. See 42

U.S.C. § 1382c(a)(3)(A)-(B) (1994). It is my position, and the statute and

the regulations in plain language so state, that a person who can perform

substantial gainful activity, regardless of a mental impairment that does

not by itself qualify the claimant for SSI benefits, is not disabled within

the meaning of the Social Security Act and its regulations.

I do not believe my view is at odds with the law of this Circuit.

We have defined an impairment that imposes a "significant limitation"

within the meaning of § 12.05C as one whose "effect on
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a claimant's ability to perform basic work is more than slight or minimal."

Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986). Of course, a wide range

of limitations are covered between "slight and minimal," a finding of which

would result in a conclusion that the claimant is not disabled, and

"severe," a finding of which would lead to further review for a listed

impairment. I think in order to be "significant" as the regulation

demands, the limitation required, while something less than severe,

nevertheless must be substantially more than "slight or minimal." See

Keller v. Shalala, 26 F.3d 856, 859-60 (8th Cir. 1994) (Loken, J.,

dissenting). In any case, Sird's ability to perform light or sedentary

work, albeit not his past relevant work, can only be viewed logically as

having a positive effect on his "ability to perform basic work."

The Commissioner's decision that Sird is not entitled to SSI benefits

"is supported by substantial evidence on the entire record." Box v.

Shalala, 52 F.3d 168, 170 (8th Cir. 1995). I would affirm the decision of

the District Court affirming the decision of the ALJ that the Commissioner

properly denied SSI benefits to Sird.

A true copy.

Attest:

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