                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 96-4248EA
                                  _____________

Demetrice Foreman,                     *
                                       *
             Appellant,                *
                                       * On Appeal from the United
      v.                               * States District Court
                                       * for the Eastern District
                 †
John J. Callahan, Acting               * of Arkansas.
Commissioner of the Social Security    *
Administration,                        *
                                       *
             Appellee.                 *
                                  ___________

                             Submitted: June 12, 1997

                                  Filed: August 19, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, BEEZER* and WOLLMAN, Circuit
      Judges.
                           ___________


RICHARD S. ARNOLD, Chief Judge.



      †
      John J. Callahan was named to serve as the Acting Commissioner, effective on
March 1, 1997. He has been substituted as the appellee in place of the former
Commissioner, Shirley S. Chater, pursuant to Fed. R. App. P. 43(c)(1).
      *
        The Hon. Robert R. Beezer, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
      Demetrice Foreman appeals the District Court’s grant of summary judgment
upholding the Social Security Commissioner’s final decision to deny disability benefits
to Foreman. Because the Administrative Law Judge (ALJ) erred by failing to hear
testimony of a vocational expert about whether jobs were available in the local or
national economy for a person with Foreman’s impaired intellectual capabilities, we
reverse the District Court’s grant of summary judgment and remand the case to that
court with instructions to remand the case to the agency for further proceedings.

                                           I.

       Foreman, when he applied for benefits, was a twenty-year-old man with a tenth-
grade education and no work experience. He has a limited intellectual capacity and a
personality disorder. Although he can “read some,” he cannot write a letter and has
never learned to drive a car. He has a learning disability, so he receives special
schooling. Tests indicated that his I.Q. was in the mid-70s. He also is temperamental,
which has led to his being arrested for fighting and expelled from school for arguing
with teachers. Foreman also suffers some depression, and has reported that he had
twice attempted suicide. An examination led to the conclusion that Foreman would
have a poor ability to comprehend, remember, and follow instructions from coworkers.

        The ALJ found that Foreman had severe borderline intellectual functioning,
intermittent explosive disorder, and a personality disorder, but that these impairments
did not meet those listed at 20 C.F.R. pt. 404, subpt. P, app. 1 (1995). The ALJ then
concluded that these nonexertional limitations did not generally compromise Foreman’s
ability to work, and that, considering Foreman’s age, education, and vocational history,
the medical-vocational guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2,
indicated Foreman was not disabled. The Appeals Council denied Foreman’s request
for review of the ALJ’s decision. The District Court granted summary judgment for the
Commissioner, concluding that because Foreman’s nonexertional impairments do not


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significantly diminish his capacity to perform work, the ALJ was not required to hear
the testimony of a vocational expert. Foreman now appeals.

                                           II.

        If an applicant for benefits has an impairment that does not meet or equal those
listed in the regulations at 20 C.F.R. pt. 404, subpt. P, app. 1, and if he or she cannot
do his or her last regular work, then the Commissioner has the burden of proving that
other jobs are available for the applicant in the national economy. If the applicant’s
impairments are exertional (affecting the ability to perform physical labor), the
Commissioner may carry this burden by referring to the grids, which are fact-based
generalizations about the availability of jobs for people of varying ages, educational
backgrounds, and previous work experience, with differing degrees of exertional
impairment. These rules are “predicated on an individual’s having an impairment
which manifests itself by limitations in meeting the strength requirements of jobs” and
therefore “may not be fully applicable where the nature of an individual’s impairment
does not result in such limitations, [for example] certain mental . . . impairments.” 20
C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e). The rules for application of the grids also
provide that

                    In the evaluation of disability where the individual has
             solely a nonexertional type of impairment, determination as
             to whether disability exists shall be based on the principles
             in the appropriate sections of the regulations, giving
             consideration to the rules for specific case situtations in this
             appendix 2. The rules do not direct factual conclusions of
             disabled or not disabled for individuals with solely
             nonexertional types of impairments.

Id. § 200.00(e)(1) (emphasis ours). Thus the rules themselves recognize that they
contemplate primarily the range of jobs available to those whose impairments are


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principally exertional, and do not address directly the situation of applicants whose
impairments are not exertional.

       The grids, consequently, do not accurately reflect the availabilty of jobs to
people whose impairments are nonexertional, and who therefore cannot perform the full
range of work contemplated within each table. Accordingly, we have in the past
required that the Commissioner meet his burden of proving that jobs are available for
a significantly nonexertionally impaired applicant by adducing the testimony of a
vocational expert. See, e.g., Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir. 1993);
Starks v. Bowen, 873 F.2d 187, 191 n.2 (8th Cir. 1989). “[W]here a claimant suffers
from a nonexertional impairment which substantially limits his ability to perform gainful
activity, the grid cannot take the place of expert vocational testimony.” Talbott v.
Bowen, 821 F.2d 511, 515 (8th Cir. 1987). Furthermore, “where the evidence of
exertional limitations is extremely limited, and the dispute focuses on whether the
claimant has the emotional capacity to engage in sustained employment, resort to the
grid is inappropriate.” Tennant v. Schweiker, 682 F.2d 707, 709-10 (8th Cir. 1982)
(citing McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir. 1982) (en banc)).

     The Commissioner did not call a vocational expert to testify. Consequently, if
Foreman suffered from significant nonexertional impairments, the ALJ’s conclusion that
Foreman was not disabled is legally infirm. In his findings of fact, the ALJ stated that

             9. If the claimant’s nonexertional limitations did not
             significantly compromise his ability to perform work at all
             exertional levels, [the grid] indicates that a finding of not
             disabled would be appropriate.

             10. Considering the range of work at all exertional levels
             which the claimant is still functionally capable of
             performing, in combination with his age, education, and



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             work experience, and using the [grid] as a framework for
             decisionmaking, the claimant is not disabled.

Admin. Tr. 26.

       We read this passage as finding that Foreman’s impairment was not significant,
and we hold that there was not sufficient evidence in the record from which he could
come to this conclusion. Foreman had an I.Q. below 75, which is near the borderline
of what is considered mental retardation, and the ALJ specifically found Foreman to
have borderline intellectual functioning. Admin Tr. 26. Moreover, Foreman has a
learning disability, which requires special instruction, and his ability to read and write
is very limited. Although there was evidence from a state disability evaluator that some
jobs were available to a person with Foreman’s intellectual capacity, the form was
signed illegibly and Foreman had no opportunity to cross examine the writer of the
report. We do not think that such conclusions can substitute for a vocational expert’s
testimony. The ALJ’s opinion suggests that because Foreman has no physical
impairments his job base is large, and his mental impairments should therefore not
preclude him from obtaining work. See id. at 25. This Court, however, has
“previously concluded that borderline intellectual functioning . . . is a significant
nonexertional impairment that must be considered by a vocational expert.” Lucy v.
Chater, 113 F.3d 905, 908 (8th Cir. 1997) (emphasis ours). We think that the ALJ’s
unsupported assertion that Foreman’s mental impairment would not limit his ability to
perform the full range of jobs contemplated in the grids “invaded the province of the
vocational expert.” Sanders v. Sullivan, 983 F.2d 822, 824 (8th Cir. 1992).

                                           III.

       We hold that the ALJ erred by deciding that Foreman was not disabled without
a finding, supported by adequate evidence, that his impairment was not significant, and
without the benefit of a vocational expert’s testimony. We reverse the District Court’s

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grant of summary judgment for the Commissioner. We remand the cause to that Court
with instructions to remand the cause to the Social Security Administration for further
proceedings, at which a vocational expert’s testimony must be presented if the
Commissioner wishes to meet his burden of proving that jobs are available for a person
with Foreman’s nonexertional impairments.

      It is so ordered.

      A true copy.

             Attest:

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




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