                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2188
                                   ___________

Annette Hayes,                        *
                                      *
             Appellant,               *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri
Kenneth S. Apfel, Commissioner of     *
Social Security,                      *     [UNPUBLISHED]
                                      *
             Appellee.                *
                                 ___________

                          Submitted:    August 5, 1999

                               Filed: August 13, 1999
                                   ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       Annette Hayes appeals from the final judgment entered in the District Court for
the Western District of Missouri upholding the final decision of the Commissioner of
Social Security to deny Hayes’s applications for disability insurance benefits and
supplemental security income. For reversal, Hayes argues, in part, that the
administrative law judge (ALJ) did not fully and fairly develop the record or evaluate
her mental impairments. For the reasons discussed below, we reverse the judgment of
the district court and remand for further proceedings.
       In determining whether substantial evidence on the record as a whole supports
the Commissioner’s finding of no disability within the meaning of the Social Security
Act, see Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir. 1995) (standard of review), we
are mindful that the ALJ--because an administrative hearing is not an adversarial
proceeding--has a duty to develop the record fully and fairly, even if the claimant is
represented by counsel, see Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994). Social
security regulations provide a mandatory procedure to evaluate mental impairments and
for examination by a psychiatrist or psychologist “in any case where there is evidence
which indicates the existence of a mental impairment.” See 20 C.F.R. §§ 404.1503(e),
404.1520a, 416.903(e), and 416.920a.

       In applying for benefits, Hayes alleged she had been unable to work since
October 1991 solely because of physical problems, including back problems, diabetes,
blindness in her left eye, and poor vision in her right eye. However, by the time the
ALJ conducted a hearing in January 1994, the administrative record included evidence
indicating Hayes’s treating physician had diagnosed depression, had made frequent
notes discussing Hayes’s symptoms related to her depression, and had prescribed
medication and discussed therapy. In a February 1995 decision, the ALJ concluded
that Hayes was not disabled within the meaning of the Social Security Act. The ALJ
did not, however, order any type of psychological evaluation, discuss in his decision
the medical evidence related to Hayes’s depression, or complete a psychiatric review
technique form (PRTF).

       After the Appeals Council declined Hayes&s request for review, she commenced
this action by filing a complaint in federal court. Prior to filing a motion for summary
judgment, Hayes filed two motions to remand the cause to the Commissioner for
another hearing based on new evidence, including cognitive and psychological




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assessments completed in November and December 1996.1 Despite finding that much
of the new evidence submitted by Hayes concerning her mental impairment was
relevant, not merely cumulative, and was probative of Hayes’s condition for the time
period for which benefits were denied, the district court denied the motions to remand
because it found Hayes did not establish good cause for failing to develop and offer the
evidence earlier in the administrative proceedings. In denying Hayes’s subsequent
motion for summary judgment, the district court found, in relevant part, that although
there were frequent references to depression in the record, the ALJ had not been
required to develop the record on Hayes’s mental health issues or to complete a PRTF
because Hayes’s medical records did not show a disabling mental condition, the
consulting physician’s evaluation revealed no mental health concerns, and Hayes did
not raise any mental health complaints during the administrative process.

      In this timely appeal, Hayes argues that the district court applied the wrong
standard in analyzing whether the ALJ failed to develop the record on her mental
impairments given the procedure mandated by the regulations. We agree, and therefore
conclude that substantial evidence on the record as a whole does not support the
Commissioner’s decision. See 20 C.F.R. § 404.1503(e) (discussing procedure to be
followed where evidence “indicates the existence of a mental impairment”); 20 C.F.R.
§ 416. 903(e) (same); Battles, 36 F.3d at 44-45; Montgomery v. Shalala, 30 F.3d 98,
100 (8th Cir. 1994) (testimony elicited by hypothetical questions that do not relate with

      1
         Although the district court denied Hayes’s motion to remand and the supporting
evidence is not part of the administrative record, we note that the cognitive evaluation
included administration of the Wechsler Adult Intelligence Scale-Revised (WAIS-R),
on which Hayes achieved a verbal IQ score of 72, a performance IQ score of 65, and
a full scale IQ score of 70. Her overall cognitive abilities were in the borderline range,
her overall nonverbal abilities were in the mild mental retardation range, and her
individual skill levels were found to range from mental retardation to low average. The
psychological summary included a diagnosis of a recurrent major depressive disorder,
and noted that Hayes was then under psychiatric care and was also seeing a
psychologist, that she was taking Prozac, and that her son had recently been killed.
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precision all of claimant’s impairments cannot constitute substantial evidence to
support ALJ’s decision to deny benefits; remanding where ALJ did not accurately
summarize claimant’s mental status in hypothetical posed to VE, and holding ALJ’s
failure to complete PRTF was not harmless); cf. Delrosa v. Sullivan, 922 F.2d 480,
484-85 (8th Cir. 1991) (noting ALJ may not refuse to accept “psychological overtones”
of examining physicians’ diagnoses).

       In addition, although we do not agree that the hypothetical posed to the
vocational expert was fatally defective for not including some of Hayes’s impairments
and limitations, we do agree that the vocational expert’s response to the hypothetical
did not support the ALJ’s conclusion that she could work. It is undisputed that the
vocational expert did not mention any sedentary jobs after stating that Hayes was
limited to sedentary work and did not specifically indicate whether the light jobs he
cited as examples of available work she could perform would meet Hayes’s limitation
on standing and walking. See 20 C.F.R. § 404.1567(b) (job is in light category “when
it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls”).

       We do not address Hayes’s other arguments on appeal, not because we find them
to be wholly without merit, but because it is unlikely that the same issues will reoccur
on remand. Specifically, we trust the Commissioner will need to elicit further input
from a vocational expert after developing the record relevant to Hayes’s mental
impairment.

       Accordingly, we reverse the judgment of the district court and remand this case
with instructions to remand to the Commissioner for further proceedings.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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