                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3882
                                    ___________

Michael R. Dewey,                    *
                                     *
      Plaintiff/Appellant,           *
                                     * Appeal from the United States
      v.                             * District Court for the Eastern
                                     * District of Missouri.
Michael J. Astrue, Commissioner      *
of Social Security,                  *
                                     *
      Defendant/Appellee.            *
                                ___________

                              Submitted: May 18, 2007
                                 Filed: December 4, 2007
                                  ___________

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

      Michael R. Dewey appeals from the district court's entry of judgment against
him in his claim for disability insurance benefits under Title II of the Social Security
Act and his claim for supplemental security income benefits under Title XVI of the
Act. Because the administrative decision in this case reveals that the Administrative
Law Judge erroneously relied on the opinion of a person with no medical credentials
as a medical consultant, we must remand to the agency for rehearing. See 42 U.S.C.
§ 405(g).
      Dewey applied for disability insurance and supplemental security benefits
because he suffers from back problems and Hepatitis C. The ALJ deciding his case
denied benefits because he found that Dewey could perform light work, which with
his age, education, and work history, meant that he was not disabled under the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule
202.21.1 In reaching the determination that Dewey could perform light work, the ALJ
explicitly credited a "Physical Residual Functional Capacity Assessment," authored
by "Nancy Muser, Senior Counselor." As the Commissioner concedes, Ms. Muser
was not a physician. Nor does the Commissioner contend that Muser has any other
medical credentials that would qualify her to act as a medical consultant under 20
C.F.R. § 404.1616(b). However, the ALJ's opinion shows that the ALJ labored under
the belief that the Physical Residual Functional Capacity Assessment had been
authored by a physician:

      In reaching this conclusion [that Dewey's testimony regarding the
      severity and functional consequences of his symptoms was not fully
      credible], substantial weight is being given to the opinions of the
      Disability Determination Service physicians as supported by and
      consistent with the evidence of the entire record (Social Security Ruling
      96-6p). They determined that the claimant retains the ability to perform
      work at the light exertional level with some postural limitations. The
      undersigned agrees.

Dewey explains that this misapprehension was in all likelihood caused by the
Missouri state agency's use of an outdated form that called for a medical consultant's
signature, despite the state's use of modified, experimental procedures that do not
require a medical consultant to sign the disability determination forms. See 42 C.F.R.
§ 404.906(a) (announcing modification to disability determination process) & §


      1
        The reader consulting the table referenced above, Rule 202.21, may be
confused to find the word "Do." instead of "Not disabled." "Do." is an abbreviation
for "ditto." U.S. Gov't Printing Office, Style Manual 159 (2000).

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404.906(b)(2) (under experimental procedure, medical consultant not required to sign
disability determination forms). The ALJ simultaneously credited the Disability
Determination Service "physicians" and refused to give controlling weight to Dewey's
treating physician, Dr. Beyer, who opined that Dewey could lift less than ten pounds
and walk or stand for at least two hours a day.

       The Appeals Council denied Dewey's request for review. Dewey brought an
action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's decision.
The district court entered judgment against him.

       We review de novo the district court's grant of judgment against Dewey.
O'Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003). We review the ALJ's
findings of fact to determine whether they are supported by substantial evidence on
the record as a whole, 42 U.S.C. § 405(g), but we review de novo whether the ALJ
based his decision on a legal error. Miles v. Barnhart, 374 F.3d 694, 698 (8th Cir.
2004); Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994).

       There is certainly no substantial evidence that the Residual Functional Capacity
Assessment in the record was the opinion of a physician. The Commissioner's brief
admits, "In his decision, the ALJ did factually mischaracterize Ms. Muser's assessment
as having been performed by a physician." The record contains a report from a
medical consultant, but the consultant did not opine that Dewey could perform "at the
light exertional level with some postural limitations," as the ALJ reported the state
agency's "physicians" had said. Instead, this language appears to have been drawn
from the Residual Functional Capacity Assessment. In the context of discussing the
Residual Functional Capacity Assessment, the ALJ cited Social Security Ruling 96-
6p, which requires ALJs to accord a certain weight to the opinions of state agency
medical consultants; this inapposite citation indicates that the ALJ inadvertantly
weighed the opinion of a lay person under the rules appropriate for weighing the
opinion of a medical consultant, which would be a legal error in applying the ruling.

                                         -3-
      The Commissioner argues that the error was harmless, but in light of the
presence in the record of a more restrictive opinion from Dewey's treating physician,
we cannot say that the ALJ would inevitably have reached the same result if he had
understood that the Residual Functional Capacity Assessment had not been completed
by a physician or other qualified medical consultant.

      We remand for rehearing.
                     ______________________________




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