### The Honorable Lyle E. Strom, United State s District Judge for 1 

### the District of Nebraska, sitting by designation.

Sird filed his original application for SSI benefits o n 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 reverse d. The ALJ denied benefits a third time. The Appeals Council denie d review i n August 1995. In May 1996, the district court affirme d 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 Si rd seeks supplemental security income (SSI) benefits based on disability under Title XVI of the Social Secu rity Act, 42 U.S.C. § 1381 et seq. O n January 27, 1995, following an administrative hearing, a n Admin istrative Law Judge (ALJ) found that Sird was not entitled to an y benefits. The Appeals Council denied review and on review to the distric t court, the ALJ decision was upheld. We reverse and vacate the judgment; 2 we remand to the

### -2-

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)). Thi s section provides that an individual meets the required level of severity for disability based on mental retardation if the individual has "[a] vali d verbal, p erformance, or fullscale IQ of 60 through 70 and a physical o r 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 imposin g additio nal and significant work-related limitation of function." AL J Decisio n, dated Jan. 27, 1995, at 7 (quoting § 12.05(c)). Relying on a vocational expert's opinion that Sird could perform light or sedentary wor k available in the community, the ALJ denied Sird benefits.
The issue here, therefore, rests upo n whether Sird has a physical or mental impairment, besides his conceded mental impairment, which imposes a "significant work-r elated 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 su ffered froma 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 Sir d as follows:

He must avoid extremes of hot and cold conditions. He mus t avoid moving machinery, more than moderate levels of

### The Dictionary of Occupational Titles (DOT) classifies job s 3 

### in part with a physical demand s rating. The rating system assigns a rating of "sedentary," "light," "medium," "heavy," or "ver y he avy" to each job the DOT lists. While the vocational exper t testified Sird could perform only jobs in the "light" o r "seden tary" category, his past jobs are assigned significantl y 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, whi le 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."
-3- dust, fumes, and smoke. He should perform no work tha t requires clear oral communication. He is able to do onl y simple , routine, repetitive work with no written material o r mathcomputation. His work should not require constant, very clo se attention to detail or use of independent judgment fo r decisionmaking. He should have no more than occasi onal contact withthe public and needs occasional supervision. He is able to work at no more than a regular pace.

Id. at 16.

Thi s finding necessarily incorporates a determination that Sird' s ability to work has been additionally impaired in the period since h e 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 th e vocati onal expert testified Sird could perform, the ALJ concluded Sir d could not perform his past relevant work. In our opinion, this findin g 3 cannot be squared with the later finding that Sird does not have a n impairment significantly limiting his ability to work that is unrelated to his IQ.
Neither party presented evidence that Sird's mental impairment s have deteriorated since performing his past relevant

### The Secretary's regulations "expressly define menta l 4 

### retard ation 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 mus t be assumed that the claimant's IQ [has] remained relativel y 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 sam e 5 

### lines. See, e.g. , Nieves v. Secretary of Health & Human Ser v. , 775 F.2d 1 2, 14 (1st Cir. 1985) ("An impairment imposes significan t limitations when its effect on a claimant's ability to perfor m basic work activities is more than slight or minimal."); Edw ards 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.")
-4- work. Therefore, it is a reasonable assumption that the ALJ's opinio n

4 limiting Sird to light or sedentary work, as opposed to the heavier work he was performing bef ore, is related not to his mental impairment, but to the physical impairments pointed out above.

The issue thus boils down to whether these limitations ar e suffic ientlysignificant to find that Sird qualifies for benefits unde r § 12.05(c). The ALJ found that Sird could perfo rm some light or sedentary jobs. On this basis, the ALJ denied benefits because Sird was no t preven ted from performing all gainful activity. We respectfully submi t this anal ysis is circuitous. The issue is not whether the claimant ca n perfo rmgainful activity; rather, it is whether he has a physica l impairm ent, other than his conceded mental impairment, which provide s sign ificant work-related limited function--in other words, whether th e 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 impairmen t that has a "more thanslight 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 issu e 6 

### cannot be one of whether the petitioner can perform substantia l gainful activity; the effect of this investigative focus is t o 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 t o Sird's conceded mental impairment, he has a work-relatedimp airment of function. Under the findings of the ALJ, there can be li ttle or no question that one exists: h e can no longer do his past relevant "he avy" work, but instead is relegated to "light" or "sedentary " work. The dissent's failure to recognize this limitation as on e that is "more than slight or minimal" is not in accordance w ith 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 activitywhich exists in the nat ional economy." (Judge Bowman's emphasis). This language i s 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 signific ant work-related physical impairment of function, then whether the claimant can perform other gainfu l activity is not relevant. As the First Circuit noted, "[I]f th e 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 y ou have an impairment(s) which . . . is listed in appendix 1 . . . , w e will find you disabled without considering your age, educati on, and work experience .") (emphasis added).
-5- Shalala , 29 F.3d 1287 (8th Cir. 1994), we reaffi rmed 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 o f itself." Branham v. Heckler , 775 F.2d 1271, 127 3 (4th Cir. 1985). As the Br anham

court reasoned, "If the plaintiff's physical impairment wer e required to be independently disabling, section 12.05(c) would be rendered meanin gless. Therefore, something less than a preclusion from an y substantial gainful employment must apply." Id. 6

The Branh am

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 Branhamin subsequent cases. 7 

### See F lowers v. Department of Health & Human Serv. , 904 F.2d 21 1 (4th Cir. 1990); Luckey v. Dep artment 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 be tter practice would be to interpret § 12.05(c) under the Eighth Circuit's "more than slight or minima l" test. In this case, we are not convinced the se two tests are different in their application. In both B ranhamand the present case, the claimants' physical impairment s prevent them from carrying on past relevant work. Sird's past relevant work required a full range of functions, while his current physica l 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 eithe r test, the claimant is entitled to benefits.

Judgment vacated; the cause is remanded to the Secretary wit h directions to award the claimant benefits.
BOWMAN, J., dissenting.
I respectfully dissent.

The regulations promulgated under Title XVI of the Social Securit y Act set out a sequential analysis for evaluating a claimant's allege d disability for the purposes of awarding Suppleme ntal Security Income (SSI) benefits. The administrative law judge (ALJ) follows this analysis when reviewing the Commiss ioner of Social Security's decision to grant or deny

### -7-

benefits. First, the ALJ determines whether the claimant is engaged i n "substantial gainful activity." 20 C.F.R. § 416.920(b) (1996). If so, th e claimant is not disab led. If not, and it is undisputed here that Sird is not work ing, then the ALJ advances to the next step and decides if th e impai rment alleged by the claimant is severe, that is, whether i t "si gnificantlylimits [his] physical or mental ability to do basic wor k activities." Id. § 416.920(c). If it is not se vere (or does not meet the durational requirements), the applicant is not disabled. See id. A n impairment is disabli ng within the meaning of the regulations if it meets or equals an impairment "listed in appendix 1." Id. § 416.920(d).

The ALJ h eld that Sird does not have a listed impairment, but th e Cour t rejects that conclusion and holds that Sird has the impairmen t described in § 12.05C of 20 C.F.R., Part 404, Subpart P, Appendix 1 (1996)

. Under § 12.05C, a cla imant'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 phy sical or other mental impairment imposing additional and significant work-related limitation of function." The Commissioner ha s 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 t he ALJ found in his review that Sird has no liste d impairment, he comple ted the sequential analysis for SSI disability. The ALJ determined that Sird did not have a listed impairment but that h e
ne vertheless could not do his past relevant work. See 20 C.F.R

. § 416.920(e) (1996). That did not end the inqui ry, 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 imp airment, and thus was not disabled. Id. § 416.920(f)(1). It i s 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 , 77 5 F.2 d 1271 (4th Cir. 1985), the Court uses the ALJ's finding that Sir d retained some ability to work (which in fact led to a conclusion of n o disabi lity) in order to bootstrap an "additional and significant work

related limitation of function" within the meaning of § 12.05C. This seem s 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 liste d impairment in the first place--that the claimant's inability to perform hi s past relevant work but his retention of the capa city to perform other work (together with the necessary mental impairment) will qualify him to receiv e SSI benefits.

"The law defines disability as the inability to do any substantia l gainful activity by reason of any medically determinable physical or menta l impairment . . . ." 20 C.F.R. § 416.905(a) (1996). "To meet thi s definition, [a claima nt] must have a severe impairment, which makes [him] unable to do [his] previous work or any other su bstantial gainful activity which exi sts in the national economy." Id. (emphasis added). Thi s provision closely tracks the language of the governing statute. See 4 2 U.S.C. § 1382c(a)(3)(A)-(B) (1994). It is my position, and the statute an d the regulations in pl ain language so state, that a person who can perform substantial gainful a ctivity, regardless of a mental impairment that does not by itself qualify the claimant for SSI benefits, is not disabled withi n the meaning of the Social Security Act and its regulations.

I d o not believe my view is at odds with the law of this Circuit

. We hav e defined an impairment that imposes a "significant limitation " within the meaning of § 12.05C as one whose "effect on

### -9-

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 whic h would res ult in a conclusion that the claimant is not disabled, an d "severe," a finding of which would lead to further review for a liste d impairmen t. I think in order to be "significant" as the regulatio n deman ds, the limitation required, while something less than severe , nevertheless must be substantially more than "slight or minimal." Se e Kel ler v. Shalala , 26 F.3d 856, 859-60 (8th Cir. 1994) (Loken, J. , dissenting). In any case, Sird's ability to perform light or sedentar y 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 be nefits "is supported by substantial evidence on the entire record." Box v
. Shalala , 52 F.3d 168, 170 (8th Cir. 1995). I wo uld 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.