Demetrice FOREMAN, Appellant, v. John J. CALLAHAN, Acting Commissioner of the Social Security Administration, Appellee.
No. 96-4248
United States Court of Appeals, Eighth Circuit
Decided Aug. 19, 1997
Submitted June 12, 1997.
E. Gregory Wallace, Buies Creek, NC, argued (Anthony Bartels, Jonesboro, AR, on the brief), for Appellant.
Chris C. Yu, Social Seсurity Admin., Dallas, TX, argued, for Appellee.†
Before RICHARD S. ARNOLD, Chief Judge, BEEZER * and WOLLMAN, Circuit Judges.
RICHARD S. ARNOLD, Chief Judge.
Demetrice Foreman appeals the District Court‘s grant of summary judgment upholding the Social Security Commissioner‘s final decision to deny disability benefits to Foreman. Because the Administrative Law Judge (ALJ) erred by failing to hear testimony of a vocational expert about whether jobs were available in the loсal or national economy for a person with Foreman‘s impaired intellectual capabilities, we reverse the District Court‘s grant of summary judgment and remand the casе to that court with instructions to remand the case to the agency for further proceedings.
I.
Foreman, when he applied for benefits, was a twenty-year-old man with a tenth-grade education and no work experience. He has a limited intellectual capacity and a personality disorder. Although he can “read some,” he cannоt write a letter and has never learned to drive a car. He has a learning disability, so he receives special schooling. Tests indicated that his I.Q. was in the mid-70s. He also is temperamental, which has led to his being arrested for fighting and expelled from school for arguing with teachers. Foreman also suffers some depression, and has reported thаt he had twice attempted suicide. An examination led to the conclusion that Foreman would have a poor ability to comprehend, remember, and follow instructions from coworkers.
The ALJ found that Foreman had severe borderline intellectual functioning, intermittent explosive disorder, and a personality disorder, but that these impairments did not meet those listed at
II.
If an applicant for benefits has an impairment that does not meet оr equal those listed in the regulations at
In the evaluation of disability where the individual has solely a nonexertional type of impairment, determination as to whether disability exists shall be based on thе principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in this appendix 2. The rules do not dirеct factual conclusions of disabled or not disabled for
individuals with solely nonexertional types of impairments.
The grids, consequently, do not accurately reflect the availability of jobs to people whose impairments are nonexertional, and who therefore cаnnot perform the full range of work contemplated within each table. Accordingly, we have in the past required that the Commissioner meet his burden of proving that jobs are available for a significantly nonexertionally impaired applicant by adducing the testimony of a vocational expert. See, e.g., Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir. 1993); Starks v. Bowen, 873 F.2d 187, 191 n.2 (8th Cir. 1989). “[W]here a claimant suffers from а nonexertional impairment which substantially limits his ability to perform gainful activity, the grid cannot take the place of expert vocational testimony.” Talbott v. Bowen, 821 F.2d 511, 515 (8th Cir. 1987). Furthermore, “where the evidence of exertional limitations is extremely limited, and the dispute focuses on whether the claimant has the emotional capacity to engage in sustained еmployment, resort to the grid is inappropriate.” Tennant v. Schweiker, 682 F.2d 707, 709-10 (8th Cir. 1982) (citing McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir. 1982) (en banc)).
The Commissioner did not call a vocational expert to testify. Consequently, if Foreman suffered from significant nonexertional impairments, the ALJ‘s conclusion that Foreman was not disabled is legally infirm. In his findings of fact, the ALJ stated that
9. If the claimant‘s nonexertional limitations did not significantly compromise his ability tо perform work at all exertional levels, [the grid] indicates that a finding of not disabled would be appropriate.
10. Considering the range of work at all exertional levels whiсh the claimant is still functionally capable of performing, in combination with his age, education, and work experience, and using the [grid] as a framework for decisionmaking, the claimant is not disabled.
Admin. Tr. 26.
We read this passage as finding that Foreman‘s impairment was not significant, and we hold that there was not sufficient evidence in the record from which he could come to this conclusion. Foreman had an I.Q. below 75, which is near the borderline of what is considered mental retardation, and the ALJ specifically found Foreman tо have borderline intellectual functioning. Admin. Tr. 26. Moreover, Foreman has a learning disability, which requires special instruction, and his ability to read and write is very limited. Although there was evidеnce from a state disability evaluator that some jobs were available to a person with Foreman‘s intellectual capacity, the form was signed illegibly and Foremаn had no opportunity to cross examine the writer of the report. We do not think that such conclusions can substitute for a vocational expert‘s testimony. The ALJ‘s opinion suggests that because Foreman has no physical impairments his job base is large, and his mental impairments should therefore not preclude him from obtaining work. See id. at 25. This Court, hоwever, has “previously concluded that borderline intellectual functioning ... is a significant nonexertional impairment that must be considered by a vocational expert.” Lucy v. Chater, 113 F.3d 905, 908 (8th Cir. 1997) (emphasis ours). We think that the ALJ‘s unsupported assertion that Foreman‘s mental impairment would not limit his ability to perform the full range of jobs contemplated in the grids “invaded the province of the vocational expert.” Sanders v. Sullivan, 983 F.2d 822, 824 (8th Cir. 1992).
III.
We hold that the ALJ erred by deciding that Foreman was not disabled without a finding, supported by adequate evidence, that his impairment was not significant, and without the benefit of a vocational expert‘s testimony. We reverse the District Court‘s grant of summary judgment for the Commissioner. We remand the cause to that Court with instructiоns to remand the cause to the Social Security Administration for further pro
It is so ordered.