United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-1929

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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of Social Security, * [UNPUBLISHED]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. *

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 Submitted: March 4, 1997

 Filed: April 16, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________

PER CURIAM.

Anna Mickelis appeals the District Court’s grant of summary judgment

affirming the decision of the Social Security Commissioner to deny her

supplemental security income (SSI) benefits. We reverse and remand with

instructions to the District Court to remand the case to the Commissioner

for further proceedings.

In her September 22, 1992 application for SSI benefits, Mickelis

alleged disability beginning October 18, 1991, due to seizures; her

application was denied initially and on reconsideration. At a hearing

before an Administrative Law Judge (ALJ), Mickelis complained of leg pain

from varicose veins and 
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recounted her sporadic work history, including work as a trimmer operator,

gambling ticket machine tender, cashier/waitress, motel maid, and day-care

worker. Mickelis testified that she was terminated from her job as a maid

because she did not clean enough rooms. She also testified she last worked

in 1986 or 1987 at Burger King, but she was fired after two weeks, she

thought, because she was too slow and unable to wrap breakfast sandwiches

quickly enough. Other evidence established that Mickelis suffers from

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 with

depression, present all her life and with some awareness of her

limitations, and mixed developmental disorder. The psychiatrist described

Mickelis’s ability to follow work rules, relate to co-workers, and interact

with supervisors as good, but her ability to deal with the public, use

judgment, deal with work stresses, function independently, and maintain

attention and concentration as poor. He noted that Mickelis was friendly

and conscientious, but had limited education and poor recent memory and

problem-solving abilities. He stated that Mickelis had no ability to

understand, remember, and carry out complex or detailed job instructions,

and poor ability to understand, remember, and carry out simple

instructions. He noted that her ability to maintain her personal

appearance, behave in an emotionally stable manner, relate predictably in

social situations, and demonstrate reliability were good. It was his

opinion that Mickelis would need a prolonged period of supported employment

in order to master a job, and that she was unable to manage benefits in her

own best interest.

In a December 1993 decision, the ALJ determined that the evidence

established that Mickelis had severe varicose veins, mixed 
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developmental disorder, and a seizure disorder, but that she did not have

a listed impairment or combination of impairments. The ALJ found that

Mickelis is limited to sedentary work due to the pain in her legs, but he

rejected her testimony that she must elevate her legs. The ALJ

acknowledged the psychiatrist’s findings concerning Mickelis’s inability

to follow instructions, but noted that Mickelis exhibited “certain

strengths” and believed that she would be a good worker after a period of

supported employment. The ALJ found that Mickelis’s mental impairments did

not prevent her from performing her past relevant work, because (1)

Mickelis’s allegations of disabling mental impairments surfaced only on

appeal, after it was clear her exertional impairments were not disabling,

and (2) Mickelis’s impairments were life-long and had not prevented her

from working in the past. The ALJ concluded that Mickelis could return to

her past work, making gambling tickets or wrapping sandwiches. 

The Appeals Council denied review, and Mickelis appealed to the

District Court. The District Court granted summary judgment to the

Commissioner.

We will affirm the Commissioner’s denial of SSI benefits unless it

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 conclude that the ALJ’s determination that Mickelis is able to

return to her past work as a machine tender or sandwich wrapper is not

supported by substantial evidence, as the ALJ failed to consider the impact

of Mickelis’s mental impairments on her ability to do these jobs. See

Nimick v. Secretary of Health & Human Servs., 887 F.2d 864, 866-68 (8th

Cir. 1989). The psychiatrist found that Mickelis 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 opined that Mickelis required a period of work in a supported

environment. There is no indication that her past work provided such an

environment. Because the ALJ agreed that a psychiatric evaluation was

necessary and ordered one, he may not disregard the findings of that

evaluation merely because they do not comport with his determination. Cf.

Pratt v. Sullivan, 956 F.2d 830, 834 (8th Cir. 1992) (per curiam) (holding

that ALJ may not substitute his own unsubstantiated conclusion concerning

mental impairment for express diagnosis of examining psychiatrist). The

ALJ also was not free to discount the psychiatric evaluation based on

Mickelis’s failure to allege a disabling mental impairment on her

application for benefits, because the evidence suggests that Mickelis’s

mental impairments may have kept her from appreciating the extent of her

impairments.

We also conclude that the ALJ failed to develop the record

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, even

if claimant is represented by counsel, which includes duty to order

examination if claimant’s records do not provide enough information); 20

C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (1996).

Even apart from Mickelis’s mental impairment, we find no support in

the record for the conclusion that Mickelis’s job at Burger King--which

lasted only two weeks and which Mickelis apparently was unable to perform--

qualifies as past relevant work. See Hogg v. Shalala, 45 F.3d 276, 278

(8th Cir. 1995) (concluding that claimant’s work as nurse’s aide for “short

time period” was not relevant work). Moreover, the ALJ found that Mickelis

is 
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limited to sedentary work, but there is no evidence that her job at Burger

King was a sedentary job. Two similar jobs listed in the Dictionary of

Occupational Titles--fast-foods worker and waiter/waitress, take out--are

classified as light work, not sedentary work. See Dictionary of

Occupational Titles 241 (4th ed. 1991). Additionally, the ALJ did not

explicitly consider the impact of Mickelis’s seizure disorder on her

ability to perform her 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 Cir. 1995) (holding that ALJ

must investigate fully and make explicit findings as to physical and mental

demands of claimant’s past relevant work and compare these findings with

claimant’s capabilities; conclusory finding that claimant can perform past

relevant work without these findings does not constitute substantial

evidence supporting denial of benefits).

We find no error in the ALJ’s rejection of Mickelis’s allegation that

she must elevate her legs throughout the day to alleviate pain, as the ALJ

properly evaluated Mickelis’s subjective complaints using the factors

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 past relevant work, any hypothetical question posed to

a vocational expert must take into account all of Mickelis’s impairments,

including mental impairments. See Pickney v. Chater, 96 F.3d 294, 296 (8th

Cir. 1996).

For the reasons stated, we reverse and remand this matter to the

District Court with instructions to remand to the Commissioner for further

proceedings consistent with this opinion.
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A true copy.

Attest:

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