# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-1929

___________ Anna Mickelis, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. John J. Callahan, Commissioner * of Social Security, * [UNPUBLISHED] * Appellee. *

___________ Submitted: March 4, 1997 Filed: April 16, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM.
Anna Mickelis appeals the District C ourt’s grant of summary judgment affirming the decision of the Social Security Commissioner to deny he r supplemental security income (SSI) benefits. We reverse and remand with instructions to the D istrict Court to remand the case to the Commissioner for further proceedings.

In her September 22, 1992 application for SSI benefits, Mickeli s allege d disability beginning October 18, 1991, due to seizures; he r application was denied initially and on reconsideration. At a hearin g before an Administrat ive Law Judge (ALJ), Mickelis complained of leg pain from varicose veins and

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recounted her sporadic work history, including w ork as a trimmer operator, gambling ticket machine tender, cashier/waitress , motel maid, and day-care worker. Mickelis testified that she was termina ted from her job as a maid because she did not clean enough rooms. She also testified she last worke d in 1 986 or 1987 at Burger King, but she was fired after two weeks, sh e thought, because she was too slow and unable to wrap breakfast sandwiches quickl y enough. Other evidence established that Mickelis suffers fro m varicose veins and a seizure disorder under reasonable control.
Pursuant to a request by Mickelis’s attorney at the hearing, the ALJ ordered a psychiatric evaluation. The psychiatrist diagnosed Mickelis wit h depressio n, present all her life and with some awareness of he r limitations, and mixed developmental disorder. The psychiatrist described Mickelis’s ability to follow work rules, relate to co-workers, and interac t with supervisors as good, but her ability to deal with the public, us e judgment, deal with work stresses, function independently, and maintai n attention and concent ration as poor. He noted that Mickelis was friendly and conscientious, but had limited education and poor recent memory an d problem -solving abilities. He stated that Mickelis had no ability t o understand, remember, and carry out complex or detailed job instructions, and po or ability to understand, remember, and carry out simpl e instr uctions. He noted that her ability to maintain her persona l appearance, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability were good. It was hi s opinion that Mickelis would need a prolonged period of supported employmen t in order to master a job, and that she was unable to manage benefits in he r own best interest. In a December 1993 decision, the ALJ determined that the evidenc e established that Mickelis had severe varicose veins, mixed

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developmental disorde r, and a seizure disorder, but that she did not have
a lis ted impairment or combination of impairments. The ALJ found tha t Mickelis is limited t o sedentary work due to the pain in her legs, but he rejecte d her testimony that she must elevate her legs. The AL J acknowledged the psychiatrist’s findings concerning Mickelis’s inabilit y to follow instructions, but noted that Mickelis exhibited “certai n strengths” and believ ed that she would be a good worker after a period of supported employment. The ALJ found that Mickelis’s mental impairments di d not prevent her from performing her past relevant work, because (1 ) Mickelis’s allegations of disabling mental impairments surfaced only o n appeal, after it was clear her exertional impairments were not disabling, and (2) Mickelis’s impairments were life-long and had not prevented he r from working in the past. The ALJ concluded tha t Mickelis could return to her past work, making gambling tickets or wrapping sandwiches.

The Appeals Council denied review, and Mickelis appealed to th e District Court. The District Court granted summary judgment to th e Commissioner.

We will affirm the Commissioner’s denial of SSI benefits unless i t is unsupported by substantial evidence in the record as a whole or based
on legal error. See Newton v. Chater , 92 F.3d 688, 691-92 (8th Cir. 1996)

. We co nclude that the ALJ’s determination that Mickelis is able t o return t o her past work as a machine tender or sandwich wrapper is no t supported by substantial evidence, as the ALJ failed to consider the impac t of Mickelis’s mental impairments on her ability to do these jobs. Se e Nimick v. Secretary of Health & Human Servs. , 887 F.2d 864, 866-68 (8t h Cir. 1989). The psychiatrist found that Mickeli s suffers from a number of functional impairments

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that appear to be inconsistent with the ability to perform her past work and opin ed that Mickelis required a period of work in a supporte d environment. There is no indication that her past work provided such an environment. Because the ALJ agreed that a psychiatric evaluation wa s
nece ssary and ordered one, he may not disregard the findings of tha t evaluation merely because they do not comport wi th his determination. Cf. Pratt v. Sullivan , 956 F.2d 830, 834 (8th Cir. 1 992) (per curiam) (holding that ALJ may not subs titute his own unsubstantiated conclusion concerning mental impairment for express diagnosis of examining psychiatrist). The ALJ also w as not free to discount the psychiatric evaluation based o n Mickel is’s failure to allege a disabling mental impairment on he r application for benefits, because the evidence suggests that Mickelis’ s mental impairments may have kept her from appreciating the extent of her impairments.

We a lso conclude that the ALJ failed to develop the recor d appropriately because he did not obtain an IQ test, which was needed for his analysis of Mickelis’s developmental disorder under section 12.05 of the impairment listings. See Boyd v. Sullivan , 960 F.2d 733, 736 (8th Cir

. 1992) (holding that ALJ has burden to develop record fully and fairly, eve n if claimant is represented by counsel, which includes duty to orde r examination if claimant’s records do not provide enough information); 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (1996). Even apar t from Mickelis’s mental impairment, we find no support in the record for the conclusion that Mickelis’s job at Burger King--whic h lasted only two weeks and which Mickelis apparently was unable to perform-

- qualifi es as past relevant work. See Hogg v. Shalala , 45 F.3d 276, 27 8 (8th Cir. 1995) (concluding that claimant’s work as nurse’s aide for “shor t time period” was not relevant work). Moreover, the ALJ found that Mickeli s is

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limited to sedentary work, but there is no evide nce that her job at Burger King wa s a sedentary job. Two similar jobs listed in the Dictionary o f Occupational Titles-- fast-foods worker and waiter/waitress, take out--are cl assified as light work, not sedentary work. See Dictionary o f Occup ational Titles 241 (4th ed. 1991). Additionally, the ALJ did no t explic itly consider the impact of Mickelis’s seizure disorder on he r ability to perform he r past work as a machine tender, a job that she held before contracting her seizure disorder; we note that non-examining agency physicians indicated that Mickelis should avoid all exposure to machinery. See Sells v. Shalala , 48 F.3d 1044, 1046 (8th Ci r. 1995) (holding that ALJ must investigate fully and make explicit findings as to physical and menta l demands of claimant’s past relevant work and compare these findings with claimant’s capabilities; conclusory finding that claimant can perform past
re levant work without these findings does not constitute substantia l evidence supporting denial of benefits).
We find no error in the ALJ’s rejection of Mickelis’s allegatio n that she must elevate her legs throughout the day to alleviate pain, as the ALJ pro perly evaluated Mickelis’s subjective complaints using the factor s specified in Polaski v. Heckler , 739 F.2d 1320 (8th Cir. 1984).

On remand , if the ALJ determines after further review that Mickelis cannot perform her pa st relevant work, any hypothetical question posed to a vocational expert m ust take into account all of Mickelis’s impairments, including mental impairments. See Pickney v. Chater , 96 F.3d 294, 296 (8t h Cir. 1996). For th e reasons stated, we reverse and remand this matter to th e District Court with instructions to remand to th e Commissioner for further proceedings consistent with this opinion.

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Attest:

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