*1 GASAWAY, Appellant, Robin Commissioner, APFEL, S.
Kenneth Administration, Security
Social
Appellee.
No. 98-3054. Appeals, States Court
United Circuit.
Eighth 12, Feb.
Submitted: 16, 1999. Aug.
Filed: Creek, NC, Wallace, Buies Gregory
E. Jоnesboro, Bartels, (Anthony W. argued brief), AR, Appellant. on Inman, Ad- Thomas Social S. CO, ministration, Denver, (Stacey argued McCord, Attorney, U.S. Little E. Assistant Rock, AR, brief), Appellee. WOLLMAN, Judge, Chief Before and MORRIS SHEPPARD LOKEN ARNOLD, Judges. Circuit ARNOLD, MORRIS SHEPPARD Judge. Circuit dis- for federal applied Robin The Social ability in late 1995. benefits *2 841 (SSA) verbal, denied her performance Administration or full scale of 60 application through on initial consideration and on 70 aby particular [as measured Gasaway psychological Ms. then re- and a physical test] reconsideration. or other impairment mental quested hearing imposing before administrative additional (ALJ) significant judge law of the SSA. work-relatеd limitation of function” (emphasis supplied). With re- (at which After the Ms. Gasa- spect part to the first requirements way represented by lawyer), was not 12.05C, § under Ms. Gasaway pointed to Gasaway’s petition denied Ms. for her verbal score of 69 on the relevant benefits, finding that she had the psychological respect test. With tо the capacity perform residual functional to “a part second of the under work,” range duty full of medium including 12.05C, § Gasaway pointed to the housekeeper/maid. work as a Ms. Gasa- ALJ’s that she has “severe im- way requested then review of the ALJ’s pairments” from physical various condi- by the Appeals decision SSA Council and tions, evidently including pain, carpal back medical submitted additional records and a syndrome, tunnel high pressure, blood letter brief objecting findings. ALJ’s (accelerated rate), tachycardia heart Appeals The SSA Council denied review. (inflammation stomach). gastritis of the Gasaway judicial filed review. (аnd In response in its own motion for parties’ summary On the cross-motions for judgment), asserted, summary the SSA judgment, the court below affirmed the among things, other that during the ad- Gasaway appeals. decision of the SSA. Ms. proceedings, ministrative Gasaway We vacate the of the court judgment below never offered mental retаrdation as a ba- proceed- and remand the ease for further sis for ings. opinion In its granting summary judg- SSA, ment to the the court below stated I. Gasaway alleged never either ALJ found that Ms. failed “depression” “psychiatric impairment” or present impairment evidence of an or benefits, her during the impairments combinatiоn of so severe that hearing with the or in the additional automatically she would be entitled to dis- argument medical records and that she benefits, ability see C.F.R. submitted the SSA Council. 404.1520(d), 404.1520a(c)(2), § and 20 circumstances, held, Under those the court 404, P, Subpart Appendix C.F.R. Part obligation ALJ had no to investigate (The ALJ therefore went on to evаluate whether Ms. might have auto- capaci- residual functional matically qualified for disability benefits ty.) summary her motion for judgment by virtue of a “disabling mental below, the court contend- ment.” From the context of the court’s ed that she does indeed have such a com- discussion, it is clear that the “disabling impairments, namely, bination of mental impairment” to which the court conjunction retardation in with certain “depression” alluded was either a “psy- or physical conditions somewhat limit impairment.” chiatric ability her to work. See 20 C.F.R. Part appears It us the court below (men- P, Subpart Appendix § 12.00 misunderstood the nature of Ms. Gasa- (mental disordеrs), § tal 12.05 retarda- way’s arguments. “Depression” is a mood tion). Specifically, argued she that she 12.04A(1), disorder that is described in meets the criteria included in 12.05C of 12.05C, §in regu- of the relevant SSA pertinent regulations. lations. although To spe- meet criteria included in do not include a regulations category a claimant must have а cifically “psychiatric impair- “valid denominated physical im- of her that because testified that such ments,” we believe ask had to she sometimes pairments, in the SSA described appropriately are the bank to clean “schizophrenic, granddaughter son regulations (§ 12.03), that she further stated disorders” her. Id. She and other paranoid, *3 (§ pri- 12.04), “anxiety-re- only one currently to clean able disorders” was “affective 12.06), week, (§ “personality dis- than the “sev- per rather vate home disorders” lated week, (§ 12.08), every addiction “substance to clean and she used orders” eral” that 12.09D). (§ 12.09B, job § keep that managed to she had disorders” and that a defi- contrast, retardation” “did not “mental the homeowner In because solely 12.00D, functioning, see if on time” or in intellectual arrived claimant] cit care if [the (mental retardation); ¶¶ 6-9, and 12.05 to bed go to back be- to leave “she had 12.02A(7) mental disor- (organic at 1109-10. also hurt.” Id. see cause her chest ders). Council, аnd ALJ, Appeals The the SSA Nonetheless, grant a we review since ap- the claimant’s court denied the district see, novo, e.g., Box de summary judgment Id. disability benefits. at plication for (8th Cir.1995), Shalala, 168, 170 52 F.3d v. case with instruc- remanded the 1110. We for ourselves whether may we examine develop the record the SSA to tions to of mental question raised the jobs claimant’s whether the with to bene- disability for as a basis retardation gainful ac- considered substantial could be the ALJ was an extent that to such fits special circumstances tivity light of the in further before de- investigate obligated to Id. performance. their at attendant appropriatе evalu- that it termining was we Evidently sponte, sua also 1110-11. functional ca- Gasaway’s residual ate signifi- to consider directed Shalala, See, 36 e.g., Battles v. pacity. (submitted a vocational evaluation cance of (8th Cir.1994); 45, Boyd v. 43, n. 2 45 F.3d Council, not to the Appeals but to the SSA (8th Cir.1992); 733, Sullivan, 736 960 F.2d ALJ) “pro- was stating that the claimant Sullivan, 840, 958 F.2d 844-45 v. Salts retаrded,” id. foundly mentally Sullivan, (8th Cir.1992); 878 Thompson v. Dozier, 276, the claimant 754 F.2d In at (8th Cir.1989); 1108, and Dozier 1110 F.2d on any failed list Cir.1985) (8th Heckler, 276 754 F.2d a for disabil- application as basis her initial curiam). (per benefits, severe head- ity citing instead pain.
II.
medical records
back
Her
aches and
.
diagnosis
recent
of mi-
fairly
a
showed
at
878 F.2d
Thompson,
prescription
and a
for
graine headaches
retardation
failed to list mental
claimant
Valium,
anti-anxiety drug.
Id. at
an
275.
a
for
as
basis
application
her initial
consulting
examined the
An
internist
benefits,
instead heart
disability
citing
having
her as
diagnosed
and
claimant
trouble, diabetes,
of child-
the effects
and
expressed
anxiety” but
doubt
“chronic
supplemental informa-
polio.
hood
On a
in fact
mi-
she did
suffer
about whether
her
evidently submitted after
tion form
Id.
graine headaches.
at
her
the claimant listed
application,
initial
maid for a bank
jobs
cleaning
past
as
ALJ,
an
the claimant
hearing
At a
with
repre-
home. An SSA
private
for a
and
migrainе
had
headaches
that she
testified
apparently interviewed
who
sentative
week,” that she
three times a
“two or
on the
jobs noted
about those
claimant
“nerves,” and that she “had
from
suffered
that
the claimant’s
supplemental
form
(evidently, at some
antidepressants
taken”
comparable”
“not
work
wоrk was
view,
past,
our
implying,
time in the
but
Id.
neighborhood.”
maids
“other
so).
doing
currently
Id.
that she was
the claimant’s
hearing,
ALJ,
At
the claimant
At a
with
mother’s head-
(who
daughter stated
her
lawyer)
aby
not represented
was
“frequent
The
debilitating”
questionnaire
aches
showed that
“crying
her mother also
suffered from
“problems
had listed
spells.” Id.
lеarning”
among
as
the disabilities to be
in evaluating
potential
considered
(ap-
the SSA
Council
state rehabilitation services.
parently), and the district court denied the
submitted to the ALJ rec-
application
claimant’s
bene-
ords that reflected visits to a medical clinic
Id. at
fits.
275-76. We remanded the
year
about а
after her
initial
case with instructions to the
SSA devel-
benefits. Those records not-
record,
op
specifically by obtaining
ed “mental
summary
retardation”
their
consultative examinations of the claimant
Gasaway’s past
medical history.
a neurologist
psychiatrist
or a
*4
psychologist,
object
being
to eval-
shоrt,
In
in
case,
Ms. Gasaway’s
anxiety
uate the claimant’s
and to deter-
possessed,
from the beginning, vari-
allegations
pain
mine whether her
of
reports showing
ous
that
Gasaway
Ms.
al-
“psychological
origin.”
Id. at 276.
ways
“special
attended
education” classes
Gasaway’s original application
Ms.
in school
IQ
аnd that her verbal was so low
disability
pain,
benefits cited back
car
that she could presumptively be consid-
pal
syndrome, high
pressure,
tunnel
blood
ered mentally retarded. Other documents
tachycardia.
supplemental
and
aOn
infor
that she submitted to the ALJ contained
mation form submitted approximately a
spеcific
learning problems
references to
original application,
week after her
and to a medical history noting mental
Gasaway
that
high
noted
she finished
retardation. Yet the ALJ failed to include
“special
school but that she was in
edu
report any
his
indication that he evalu-
cation”
through
classes from the first
rejected,
noticed,
ated and
or even
grades
twelfth
because of
learning.”
“slow
possibility
might be
consider,
As exhibits for the ALJ to
Ms. mentally impaired
way.
in some
Gasaway submitted her high school tran
view,
In our
the claimants in
script,
Thompson,
which included certain test results.
1110-11,
Dozier,
878 F.2d at
transcript
confirmed that she was
and
754 F.2d
еn
in “special
rolled
education”
for all
at
offered far
classes
less evidence of mental
subjects through
substantive
impairments
the twelfth
than Ms.
Gasaway did.
grade and that
study
cases,
she received a “work
in each of those
the claim-
(there
diploma”
suggestion
was some
dur
explicitly'
ant failed to assert
either the
—in
ing
hearing
with the ALJ that such a
application,
hearing
initial
at a
with an
diploma
was less of
achievement than a ALJ, or,
evidently,
the record for the
“general diploma,” but
the discussion is
any
mental
Council—
point).
unclear on that
The test results on
ments as a basis for
Gasaway’s high
transcript
school
cases, however,
each of those
we directed
that
showed
she had a verbal
as
develop
the record further with
pre
measured
the psychological test
possible
impairments
ferred
regulations
in the SSA
for deter
case,
Gasaway’s
the claimant.
In Ms.
mining
hearing
mental retardation. At the
therefore, we hold that she raised the
with the
mother char
question
sufficiently
of mental retardation
daughter’s
acterized her
“academic skills”
obligate
investigate
well to
the ALJ to
“very poor.”
as
determining
mental abilities further before
appropriate
it was
to evaluate her
Gasaway also submitted to the ALJ
turn,
capacity.
residual
functional
question-
state rehabilitation services
We
then,
naire
question
that was filled out
rehabil-
of whether it is more
state
years
itation
two
appropriate
simply
counselor
before Ms.
to remand the case or
initial
and
to reverse
court below
to direct
entry summaryjudgment
§ 12.050,
first criterionunder
becomеswhethershe meetsthe
ments for the secondcriterionunder
the issue
for Ms.
require-
Gasaway.
Tomeetthe
for the
namely, physical
§ 12.050,
[addition-
"a
or
firstcriterionunder 12.050ofthe rele
impairmentimposing
al]mental
additional
regulations,
vant SSA
a claimantmust
significant
work-relatedlimitationof
perfor
have,
least,
verbal,
at the
a "valid
function."
through
manceorfullscale of60
the
regulations determining
70"on
decision,
In his
theAU foundthatMs.
psychological preferred
test
intheSSA Gasaway
"hassevere
within
mentalretar
meaning
regulations,"
[SSA]
i.e.,
the
impairments
ofthe
qualifying
dation.Ms.
hasa
ver
"significantlylimit[] [a
IQ; however,
bal
we observethat at the
physical abifity
claimant's]
. . .
to dobasic
AU,
withthe
de
activities,"
work
see 20 C.F.R.
day-to-day
shop
scribedher
activitiesas
404.1520(c);
see also 42 U.S.C.
ping,visiting
unteering
attending
others,
church,vol
423(d)(1)~A~,
423(d)(2)(B),
404.1521(a).
423(d)(2)(A),
shop
as a cashierat a thrift
§
§
20 C.F.R.
keeping
week,
leasttwicea
finances,
cludingcooking.
trackof her
In its answerto Ms.Gasa-
doing
chores,
household
in way'scomplaint
*5
below,
in the court
transcript
of the
findings
SSAstatedthattheAU's factual
hearingwiththeAU alsoshowsthatMs.
"supportedby
substantialevidence."
Gasaway
standing
apparentdifficulty
hadno
under
position
NordidtheSSAshiftfromthat
answering
ques
the AU's
summaryjudgment
its motionfor
in the
tions.
Indeed,
courtbelow.
the motionstated
light
genuine
pre-
oftheconflictbetweenMs.Gas- that "no
issueof fact"was
away's
Although
assertionsof mentalretardation sented the AU's decision.
description day-to-day
opinion
andher
of
activities the
ofthe courtbelowstatedthat
hampered,
objectivesupport
that are not
at leastnot obvi- therewas"little
in the
ously,by
Gasaway's]
[Ms.
a deficitin intellectualfunction- recordfor
claimofdisabil-
ing,
given
ity,"
specifically
wedonottakeas a
thather
the courtdidnot
address
psycho-
findings
respect
scoresfrom1974onthe relevant
the AU's factual
with
logical
enough
Gasaway'sphysicalimpair-
test arereliable
to bе used whetherMs.
questiontwenty-fiveyears
meaning
without
See,
later. mentswere"severe"withinthe
e.g.,Boyd,
regulations.
current for the first cri-
satisfies 12.05C, disabled, she as a
terion under of law.
matter review of the record also confirms
Our that, assuming complications engen- no MOORE, Steaphanie Plaintiff— §by dered the ALJ’s factual find- Appellant, ing regarding Ms. residual capacity to full perform range functional “a *6 work,” duty including of medium work as a SOURCE, INC., PAYLESS SHOE
housekeeper/maid, supported adequately Appellee. Defendant — by the evidence. We therefore that if hold No. 97-2110. development the SSA’s of the record re- in a cur- sults Appeals, United Court of States unequivo- rent verbal or other does not Eighth Circuit. cally satisfy for the first July Submitted: criterion under she is not dis- abled, of law. as matter Aug. Filed:
IV. stated,
For the reasons we vacate the
judgment of the court below and remand proceedings.
this case for further
LOKEN, Judge, dissenting. Circuit Gasaway’s application
Robin for social
security allege benefits did not impairment. The issue did not
arise before the administra- Gasaway’s attorney law judge.
tive the issue in his letter brief to
did raise Yet Commissioner’s Council. court remands because Ms. High
Permanent Record from Nettleton records a Verbal of 69 on a test
School