                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3375
                                   ___________

William L. Minor, Sr.*                  *
                                        *
            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: April 15, 2009
                                Filed: July 29, 2009
                                 ___________

Before MURPHY, BRIGHT, and BYE, Circuit Judges.
                           ___________

BRIGHT, Circuit Judge.

       Fannie Minor appeals the district court’s order affirming an administrative law
judge’s (“ALJ”) denial of her application for Disability Insurance Benefits and
Supplemental Security Income payments. On appeal, Minor argues that the ALJ erred
in assessing Minor’s residual capacity and erred in posing an improper hypothetical
to the vocation expert. Having jurisdiction pursuant to 28 U.S.C. § 1291, we reverse
and remand the case to the ALJ for further proceedings.


      *
        Pursuant to this Court’s order dated April 14, 2009, William L. Minor, Sr. is
substituted as Appellant in place of Fannie D. Minor.
                                  I. Background

       Minor was born in 1954. She did not complete high school, but earned a GED
and completed training as a licensed practical nurse. She measured 5’7” and
historically weighed over 190 pounds, with a Body Mass Index of 30. For more than
three decades, Minor smoked one pack of cigarettes per day.

       Minor was 49 years old on June 15, 2004, the date on which she allegedly
became disabled due to an array of health issues, including depression, back pain,
poor circulation, and weight problems. She documented and complained of shortness
of breath and lung disease. According to her lawyer, Minor died of lung cancer at the
age of 54 on April 4, 2009, while this appeal was pending.

      Minor had filed her Application for Benefits on October 4, 2004. The agency
denied her claim on November 24, 2004. Shortly thereafter she requested a hearing,
which occurred on July 18, 2006. The ALJ denied her benefits on November 16,
2006, finding her only partially credible and not disabled as defined by the Social
Security Act. Minor sought review, but the Appeals Council upheld the denial on
August 3, 2007. Minor then filed a complaint in the district court,1 which upheld the
ALJ’s decision. Minor timely appealed to this Court. Upon her death, Minor’s
husband, William L. Minor, Sr., took her place as named appellant.

                                   II. Discussion

       This Court reviews de novo a district court’s decision to affirm the denial of
social security benefits. See Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). This
Court will affirm a denial of benefits when the substantial evidence on the record as
a whole supports the ALJ’s decision. See Johnson v. Chater, 108 F.3d 178, 179 (8th

      1
        Pursuant to 28 U.S.C. § 636(c), the parties consented to a magistrate judge’s
resolution of these proceedings.

                                         -2-
Cir. 1997). As this Court has reiterated, the “substantial evidence on the record as a
whole” standard requires a more rigorous review of the record than does the
“substantial evidence” standard:

             “Substantial evidence” is merely such “relevant evidence that a
      reasonable mind might accept as adequate to support a conclusion.”
      “Substantial evidence on the record as a whole,” however, requires a
      more scrutinizing analysis. In the review of an administrative decision,
      “[t]he substantiality of evidence must take into account whatever in the
      record fairly detracts from its weight.” Thus, the court must also take
      into consideration the weight of the evidence in the record and apply a
      balancing test to evidence which is contradictory.

Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989) (quoting Jackson v. Bowen, 873
F.2d 1111, 1113 (8th Cir. 1989)). See also Burress v. Apfel, 141 F.3d 875, 878 (8th
Cir. 1998) (“As this court has repeatedly stated, the ‘substantial evidence in the record
as a whole’ standard is not synonymous with the less rigorous ‘substantial evidence’
standard.”); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987) (“It is not
sufficient for the district court to simply say there exists substantial evidence
supporting the [Commissioner] and therefore the [Commissioner] must be
sustained.”).

       In our view, the record as a whole requires that we should remand for further
evaluation. The weight of the evidence in the record indicates that Minor suffered
from numerous respiratory health problems. Minor regularly smoked cigarettes for
more than thirty years. She could not walk more than two or three blocks at a time
due to, among other things, shortness of breath. She had to catch her breath every
twenty to thirty minutes while washing dishes. She had trouble breathing, for which
she took Adavir and used a nebulizer. She also experienced chronic coughing spells,
brought up phlegm, and suffered from multiple episodes of pneumonia. Medical test
results from April 2006 showed a predominately interstitial pattern throughout both
lungs, particularly in the mid-lung region, while May 2006 test results indicated

                                          -3-
interstitial lung disease. Around this time, Minor’s doctor also diagnosed her with
chronic obstructive pulmonary disease (“COPD”) and pulmonary hypertension, as
well as systematic hypertension. A subsequent respiratory examination revealed
decreased breath sounds at both lung bases.

       Although the ALJ recognized that Minor suffered from interstitial lung disease,
the ALJ found her complaints only partially credible and denied her disability claims.
Specifically, the ALJ noted that “the claimant’s statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely credible.”

      This determination requires further review. We now know that Minor suffered
from lung cancer, which caused her death. This knowledge and the record as a whole
require a remand for further consideration of Minor’s disability claim.

       On remand, the ALJ shall determine whether the lung cancer existed at the time
that the ALJ discounted Minor’s relevant complaints and, if so, whether it prevented
her from engaging in any substantial gainful activity. The record may be reopened for
this purpose.

      Finally, as a basis for the ALJ’s decision to deny Minor benefits, the ALJ posed
a hypothetical question to the vocational expert regarding Minor’s ability to work,
which assumed only slight limitations on Minor’s physical ability to perform jobs and
which the magistrate judge described as “somewhat unclear.” On remand, Minor’s
representatives also should have the opportunity to ask the vocational expert further
questions in light of the discovered lung cancer as well as the record as a whole.




                                         -4-
                                  III. Conclusion
       For the foregoing reasons, we reverse and remand the case to the ALJ for
further proceedings consistent with this opinion. Given the age of this case, we
suggest the review be expedited.
                       ______________________________




                                      -5-
