King v. Astrue , 564 F.3d 978 ( 2009 )

BEAM, Circuit Judge.

Joy King appeals the district court’s order affirming the Commissioner’s decision to deny Social Security disability benefits. King contests the residual functional capacity (RFC) determination and the Administrative Law Judge’s (ALJ) use of the Medical-Vocational Guidelines (the grids) in coming to its ultimate conclusion that she is not disabled.

The ALJ found that King was not disabled at Step 5 of our familiar five-step process² for evaluating social security-disability claims, finding that although King had a severe mental impairment and could not perform her past relevant work, she had the RFC for the full range of light, unskilled jobs which exist in significant numbers in the national economy. In so doing, the ALJ relied upon the grids as opposed to taking testimony from a Vocational Expert (VE). The Commissioner argues that the ALJ is permitted to do so based on the rationale in Ellis v. Barnhart, 392 F.3d 988 (8th Cir.2005). In Ellis we held that the ALJ may rely upon the grids in a case involving a non-exertional impairment if the ALJ correctly finds that the non-exertional impairment did not significantly diminish the claimant’s RFC to perform the full range of activities listed in the grids. Id. at 996. See also Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir. 1988) . In both Ellis and Thompson, the non-exertional impairment at issue was pain.

Here, the non-exertional impairment is a severe mental impairment, and in Wheeler v. Sullivan, 888 F.2d 1233, 1238 (8th Cir. 1989) , we held that where a claimant had a severe mental impairment and could not return to her past relevant work, it was inappropriate for the agency to rely upon the grids to meet its burden at step five. With regard to the argument the Commissioner currently makes, we held:

We reject the Secretary’s suggestion that the use of the Guidelines approved in Thompson is appropriate in the case of a claimant with a severe mental impairment. Thompson involved a claimant who allegedly suffered from disabling pain. Our decision in that case reflects the fact that a claimant with a sound mind can work despite pain (millions of people do every day), unless the pain is disabling. 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 a severe mental impairment, and we distinguish Thompson from the present case on that basis.

Id. at 1238-39. See also Vincent v. Apfel, 264 F.3d 767, 769-70 (8th Cir.2001) (remanding for further proceedings and noting that VE testimony was required due to claimant’s severe mental impairment). Although Wheeler was not cited by the parties in this appeal, we find that it is squarely on point and binding precedential authority. And we can find no case in our circuit sanctioning the Commissioner’s use of the grids at step five, as opposed to VE testimony, in a case involving a severe mental nonexertional impairment.

Accordingly, we reverse the district court’s opinion and remand the case to the ALJ for proceedings consistent with this opinion.

2 . The five-part test is whether the claimant is (1) currently employed and (2) 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) whether the claimant can perform any other kind of work. Hepp v. Astrue, 511 F.3d 798, 803 n. 4 (8th Cir.2008). Through step four of this analysis, the claimant has the burden of showing that she is disabled. Only after the analysis reaches step five does the burden shift to the Commissioner to show that there are other jobs in the economy that a claimant can perform. Snead v. Barnhart, 360 F.3d 834, 836 (8th Cir.2004).