Michael Brock v. Michael J. Astrue

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, MICHAEL J. MELLOY and BOBBY E. SHEPHERD. Michael J. Melloy, Authoring Judge (PUBLISHED) [3894859] [11-2496]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2496
___________
Michael Brock,
Plaintiff - Appellant,
v.
Michael J. Astrue, Social Security
Commissioner,
Defendant - Appellee.

*
*
*
*
*
*
*
*
*
*

Appeal from the United States
District Court for the
Eastern District of Arkansas.

___________
Submitted: January 10, 2012
Filed: March 28, 2012
___________
Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
___________
MELLOY, Circuit Judge.
Michael Brock appeals the district court's order affirming the Commissioner's
denial of his application for supplemental security income benefits. Specifically, he
objects to the administrative law judge's finding, without considering the testimony
of a vocational expert, that Brock was able to engage in gainful activity. We reverse
and instruct the district court to remand the case for further proceedings.
Brock applied for supplemental security income on March 6, 2007. The
Commissioner denied benefits upon initial review of his application and again on

Appellate Case: 11-2496

Page: 1

Date Filed: 03/28/2012 Entry ID: 3894859

reconsideration. Brock then requested a hearing before an ALJ, which was held on
July 14, 2009. At the time of his hearing, Brock was twenty-one years old, had an
eighth-grade education, and had no transferable job skills or relevant work
experience. The ALJ found that Brock had severe mental impairments of anxiety
disorder and untreated attention deficit hyperactivity disorder. However, the ALJ
determined that, despite the severe mental impairments, Brock was able to
understand, remember, and carry out simple, unskilled work, and that he therefore had
the residual functional capacity ("RFC") to perform the full range of medium work
contemplated in the the Medical-Vocational Guidelines ("guidelines"). The
guidelines contain three "grids" in 20 C.F.R. pt. 404, subpt. P, app. 2 that set out
combinations of statutory criteria, and if a claimant fits one of those combinations,
the grids will direct a finding of either "disabled" or "not disabled." Considering
Brock's RFC, age, education, and work experience, the ALJ based his decision on
Rule 203.25, which directed a finding that Brock was "not disabled." The ALJ issued
his decision on November 18, 2009.
Brock appealed to the district court. Brock argued that the guideline grids are
only intended to direct disability decisions for claimants with exertional limitations.
Because his impairments were solely nonexertional, Brock argued the ALJ should not
have relied solely on the guidelines and should have sought testimony from a
vocational expert before determining whether he was disabled. The magistrate judge
issued a memorandum opinion on May 31, 2011, finding that there was sufficient
evidence in the record to support the determination that Brock was "not disabled" and
affirming the Commissioner's decision.
We review de novo the district court's decision to uphold the Commissioner's
denial of supplemental security income benefits. Ellis v. Barhart, 392 F.3d 988, 993
(8th Cir. 2005). We affirm a denial of benefits if the adjudicator applied the correct
legal standards and there is substantial evidence in the record to support the decision.
Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011). Substantial evidence is
-2-

Appellate Case: 11-2496

Page: 2

Date Filed: 03/28/2012 Entry ID: 3894859

evidence that a reasonable person might accept as adequate to support a decision but
is less than a preponderance. Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008).
We consider the record as a whole, including evidence that detracts from, as well as
supports, the Commissioner's decision. Ellis, 392 F.3d at 993.
On appeal, Brock argues that the ALJ erred at step five of the familiar five step
analysis outlined in 20 C.F.R. § 416.920(a)(4)(i)–(v).1 In the first four steps, the ALJ
found that Brock was not currently employed, had severe mental impairments that
were not among those listed in the guidelines, and had no previous relevant work to
return to. Thus, at step five, the Commissioner bore the burden of establishing that,
given Brock's RFC, age, education, and work experience, there were a significant
number of other jobs in the national economy that Brock could perform. See Ellis,
392 F.3d at 993.
Specifically, Brock argues that the ALJ erred in relying solely on the guidelines
to determine that he could perform other jobs. Because Brock believes the ALJ
improperly relied on the guidelines, he asserts that there is not substantial evidence
in the record to demonstrate the Commissioner met his burden at step five. Brock
contends that because the guidelines are premised only on exertional limitations, they
are not meant to direct a conclusion of "disabled" or "not disabled" for individuals
who suffer solely from nonexertional impairments. See 20 C.F.R. pt. 404, subpt. P,
app. 2, § 200.00(e)(1); see also McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.
1982) (en banc) ("RFC is defined wholly in terms of the physical ability to perform
certain exertional tasks. If a claimant has a nonexertional impairment, the Guidelines
and grid are not controlling and cannot be used to direct a conclusion of disabled or
1

The five-step analysis asks (1) whether the claimant is currently employed; (2)
whether the claimant is severely impaired; (3) whether the impairment is, or
approximates, a listed impairment; (4) whether the claimant can perform past relevant
work; and if not, (5) wether the claimant can perform any other kind of work. King
v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009).
-3-

Appellate Case: 11-2496

Page: 3

Date Filed: 03/28/2012 Entry ID: 3894859

not disabled without regard to other evidence, such as vocational testimony."),
abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000).
Brock contends his case fits within the general rule that, "if the claimant suffers from
nonexertional impairments that limit her ability to perform the full range of work
described in one of the specific categories set forth in the guidelines, the ALJ is
required to utilize testimony of a vocational expert." Reed v. Sullivan, 988 F.2d 812,
816 (8th Cir. 1993).
The Commissioner argues that this case meets an acknowledged exception to
that general rule. Because the ALJ made a finding of fact that Brock's severe mental
impairments did not limit his ability to perform the relevant range of work considered
in the guidelines, the Commissioner argues the guidelines can be used exclusively.
The exception to this general rule is that the ALJ may exclusively rely
on the guidelines even though there are nonexertional impairments if the
ALJ finds, and the record supports the finding, that the nonexertional
impairments do not significantly diminish the claimant's RFC to perform
the full range of activities listed in the guidelines. In other words, the
ALJ may rely on the guidelines to direct a conclusion of either disabled
or not disabled without resorting to vocational expert testimony if the
ALJ determines that a claimant's nonexertional limitations do not
significantly affect the claimant's RFC.
Reed, 988 F.2d at 816 (citation omitted); see also Ellis, 392 F.3d at 996. Thus, the
Commissioner argues that the need for a vocational expert depends on the ALJ's
factual determination that a claimant has a significantly diminished RFC, rather than
the mere existence of nonexertional limitations. In Thompson v. Bowen, 850 F.2d
346 (8th Cir. 1988), we said that "an ALJ may use the Guidelines even though there
is a nonexertional impairment if the ALJ finds, and the record supports the finding,
that the nonexertional impairment does not diminish the claimant's residual functional
capacity to perform the full range of activities listed in the Guidelines." Id. at
349–50. Thompson clarified that our case law should not be read to generally
-4-

Appellate Case: 11-2496

Page: 4

Date Filed: 03/28/2012 Entry ID: 3894859

preclude any use of the guidelines when a nonexertional limitation was present, even
though some language from earlier cases might suggest that outcome. Id. at 349; see
also Tucker v. Heckler, 776 F.2d 793, 795–96 (8th Cir. 1985).
While the language of cases like Tucker, Thompson, and Reed do lend support
to the Commissioner's position, we have on two occasions distinguished these
cases—where the extent of the nonexertional limitation depends on the credibility of
subjective testimony about pain—from cases where the nonexertional limitation is
caused by severe mental impairments. In Wheeler v. Sullivan, 888 F.2d 1233 (8th
Cir. 1989), we explained that the effect of pain bears a stronger relationship to the
claimant's exertional ability than the effect of severe mental impairments:
Objective tests of physical ability, reflected in the Guidelines, may
resolve the issue of whether the claimant is disabled by reason of pain.
A claimant with a severe mental impairment, however, may be incapable
of holding any job, even if the claimant's body is sound and his or her
physical ability unimpaired by pain or any other limiting condition. As
we read Thompson, it does not apply to claimants who, like Wheeler,
have been found to have severe mental impairment, and we distinguish
Thompson from the present case on that basis.
Id. at 1238–39.
We revisited Wheeler's distinction recently in King v. Astrue, 564 F.3d 978
(8th Cir. 2009). Although neither party in King addressed Wheeler, the panel
majority found its distinction was binding precedent and ruled that an ALJ improperly
relied exclusively on the Guidelines to determine a claimant with a severe mental
impairment was "not disabled." Id. at 979. The court noted that it could "find no
case in our circuit sanctioning the Commissioner's use of the [guidelines] at step five,
as opposed to [vocational expert] testimony, in a case involving a severe mental
nonexertional impairment." Id.; see also Vincent v. Apfel, 264 F.3d 767, 769 (8th

-5-

Appellate Case: 11-2496

Page: 5

Date Filed: 03/28/2012 Entry ID: 3894859

Cir. 2001) (noting that the court in Wheeler directed an ALJ to use vocational expert
testimony to determine RFC "if claimant suffers from severe mental impairment").
A dissenting judge in King argued that Wheeler was not binding precedent, and
that the rule in Thompson should apply even if the nonexertional impairment in
question was a severe mental impairment. See King, 564 F.3d at 980–81 (Loken, J.,
dissenting). The Commissioner now urges the court to follow the King dissent and
treat that case as an outlier from our other social security cases. However, “a panel
of this Court is bound by a prior Eighth Circuit decision unless that case is overruled
by the Court sitting en banc.” United States v. Wright, 22 F.3d 787, 788 (8th Cir.
1994).
We are bound by the majority opinion in King. Thus, following the reasoning
in King and Wheeler, we conclude that the ALJ erred by relying solely on the
guidelines to determine Brock was "not disabled." Because the ALJ determined that
Brock suffered from severe mental impairments, the ALJ should have consulted a
vocational expert in determining whether Brock had the RFC to perform other jobs
that exist in significant number in the national economy. See Vincent, 264 F.3d at
769 (noting that an ALJ must use vocational expert testimony to determine the RFC
of a claimant who suffers from severe mental impairment); cf. Lucy v. Chater, 113
F.3d 905, 909 (8th Cir. 1997) (holding an ALJ improperly applied guidelines to direct
a conclusion of "not disabled" without consulting a vocational expert to assess
claimant's RFC in relation to her borderline intellectual functioning).
Accordingly, we reverse the judgment of the district court and instruct the
district court to remand the case to the Commissioner for further proceedings
consistent with this opinion.
______________________________

-6-

Appellate Case: 11-2496

Page: 6

Date Filed: 03/28/2012 Entry ID: 3894859