                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1863
                                  ___________

Joy King,                            *
                                     *
             Appellant,              *
                                     * Appeal from the United States
      v.                             * District Court for the Eastern
                                     * District of Missouri.
Michael J. Astrue, Commissioner      *
of Social Security,                  *
                                     *
             Appellee.               *
                                ___________

                            Submitted: December 12, 2008
                               Filed: April 28, 2009
                                ___________

Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE,1 District Judge.
                              ___________

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.



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
       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


      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).

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      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 non-
exertional impairment.

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

LOKEN, Chief Judge, dissenting.

       I respectfully dissent. For social security disability purposes, severe mental
impairments are nonexertional limitations. See 20 C.F.R. § 404.1569a(a), (c). Unlike
nonexertional limitations that are predominantly subjective, such as pain, many
categories of severe mental impairment are listed in 20 C.F.R. pt. 404, subpt. P, app.
1, and their medical severity is evaluated at step three of the Commissioner’s five-step
evaluation process. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520a. This evaluation of
disability on the basis of mental disorders is a complex task. See 20 C.F.R. pt. 404,

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subpt. P, app. 1, § 12.00. In this case, the ALJ carefully completed the evaluation and
found that Joy King’s “major depressive disorder or bipolar affective disorder is a
‘severe’ mental impairment [that] does not meet the criterial for any of the listed
mental impairments, including Listing 12.02 for organic mental disorder and 12.04 for
affective (mood) disorders.” That finding is not at issue on appeal.

       When a severe mental impairment does not meet the criteria for a listed
impairment at step three, its impact on the claimant’s ability to work is considered in
determining the claimant’s “residual functional capacity for work activity on a regular
and continuing basis.” 20 C.F.R. § 404.1545(c). The Medical-Vocational Guidelines
are a set of rules that direct whether the claimant is or is not disabled “[w]here the
findings of fact made with respect to a particular individual’s vocational factors and
residual functional capacity coincide with all of the criteria of a particular rule.” 20
C.F.R. pt. 404, subpt. P., app. 2, § 200.00(a). If a mental impairment affects the
claimant’s ability to meet job demands other than strength, the Guidelines are not
directly applied but “provide a framework to guide our decision.” 20 C.F.R.
§ 404.1569a(d). In this case, the ALJ conducted precisely that analysis, concluding
his lengthy opinion with the following findings:

            12. The claimant has the residual functional capacity to perform
      substantially all of the full range of light work (20 CFR §§ 404.1567 and
      416.967).

            13. Based on an exertional capacity for light work, and the
      claimant’s age, education, and work experience, Medical Vocational
      Rule 202.21, Appendix 2, Subpart P, Regulations No. 4 would direct a
      conclusion of “not disabled.”

           14. The claimant’s capacity for light work is substantially intact
      and has not been compromised by any nonexertional limitations.
      Accordingly, using the above-cited rules as a framework for decision-
      making, the claimant is not disabled.   (Emphasis added.)


                                          -4-
       Writing for a unanimous panel, Judge Floyd R. Gibson explained in Thompson
v. Bowen, 850 F.3d 346, 349-50 (8th Cir. 1988), that, while use of the exertion-
oriented Guidelines is often inappropriate if the claimant suffers from a severe
nonexertional impairment, “the law in this circuit provides that an ALJ may use the
Guidelines even though there is a nonexertional impairment if the ALJ finds, and the
record supports the finding, that the nonexertional impairment does not diminish the
claimant’s residual functional capacity to perform the full range of activities listed in
the Guidelines.” The ALJ made that finding in this case and then explicitly used the
Guidelines as a “framework for decision-making,” as the regulations provide. The
district court concluded that substantial evidence in the administrative record
supported that finding and affirmed. On appeal, King argues that the rule in
Thompson has been misapplied on the facts of this case.

       The court never addresses this fact-intensive issue. Instead, it adopts as
controlling precedent dicta in Wheeler v. Sullivan, 888 F.2d 1233, 1239 (8th Cir.
1989), declaring that the rule in Thompson “does not apply” when the nonexertional
limitation is a “severe mental impairment.” I strongly disagree.

       This sweeping declaration was not essential to the decision in Wheeler, where
we reversed because the ALJ’s finding that the claimant could perform her past
relevant work “[was] not supported by substantial evidence on the record as a whole.”
888 F.2d at 1238. Though we cited Wheeler in Vincent v. Apfel, 264 F.3d 767, 769
(8th Cir. 2001), we reversed because the ALJ in finding that Vincent can return to his
past relevant work “made no explicit findings as to the mental demands of Vincent’s
past work.” Significantly, Wheeler was not even cited in Lucy v. Chater, 113 F.3d
905, 908 (8th Cir. 1997), where, applying Thompson, we reversed because the ALJ
made inconsistent findings regarding the impact of claimant’s borderline intellectual
functioning on his capacity to perform the full range of sedentary work. I have no
quarrel with these fact-based decisions. My dissent is from the court’s refusal to look
at the facts so thoroughly analyzed by the ALJ and by the district court, and its

                                          -5-
reliance on a categorical principle that is at odds with the Commissioner’s regulations
and with the vast majority of prior Eighth Circuit decisions addressing this issue. See,
e.g., Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005). I urge future panels to treat
this decision, and the dicta in Wheeler on which it relies, as outliers rather than as
controlling precedent.

      I would affirm for the reasons stated in the district court’s thorough opinion.
                      ______________________________




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