                                    ___________

                                    No. 96-2466
                                    ___________

Donald Sird,                            *
                                        *
              Plaintiff-Appellant,      *
                                        *    Appeal from the United States
     v.                                 *    District Court for the
                                        *    Southern District of Iowa.
Shirley S. Chater, Commissioner         *
of Social Security Administra-          *
tion,                                   *
                                        *
              Defendant-Appellee.

                                    ___________

                      Submitted:    December 13, 1996

                           Filed:   January 27, 1997
                                    ___________

Before BOWMAN and LAY, Circuit Judges, and STROM,1 District Judge.

                                    ___________

LAY, Circuit Judge.


     Donald Sird seeks supplemental security income (SSI) benefits based
on disability under Title XVI of the Social Security Act, 42 U.S.C. § 1381
et seq.       On January 27, 1995, following an administrative hearing, an
Administrative Law Judge (ALJ) found that Sird was not entitled to any
benefits.     The Appeals Council   denied review and on review to the district
court, the ALJ decision was upheld.2        We reverse and vacate the judgment;
we remand to the



     1
     The Honorable Lyle E. Strom, United States District Judge for
the District of Nebraska, sitting by designation.
          2
        Sird filed his original application for SSI benefits on
September 27, 1991, alleging disability since 1990. The ALJ denied
benefits, and the Appeals Council reversed and remanded. The ALJ
again denied benefits, and the Appeals Council again reversed. The
ALJ denied benefits a third time.      The Appeals Council denied
review in August 1995. In May 1996, the district court affirmed
the ALJ decision, almost five years after Sird's initial request.
It is this ruling Sird appeals.
Secretary for the purpose of awarding benefits.


      Sird has an IQ score falling within the range listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1, § 12.05(c) (hereinafter § 12.05(c)).         This
section provides that an individual meets the required level of severity
for disability based on mental retardation if the individual has "[a] valid
verbal, performance, or fullscale IQ of 60 through 70 and a physical or
other mental impairment imposing additional and significant work-related
limitation of function."   § 12.05(c) (our emphasis).


     The ALJ, however, found that while Sird may meet the first prong of
§ 12.05(c), he did not have "a physical or other mental impairment imposing
additional and significant work-related limitation of function."        ALJ
Decision, dated Jan. 27, 1995, at 7 (quoting § 12.05(c)).     Relying on a
vocational expert's opinion that Sird could perform light or sedentary work
available in the community, the ALJ denied Sird benefits.


     The issue here, therefore, rests upon whether Sird has a physical or
mental impairment, besides his conceded mental impairment, which imposes
a "significant work-related limitation of function."    If so, he qualifies
as disabled under § 12.05(c), and the inquiry ends.


     Besides borderline intellectual capacity, the ALJ found Sird suffered
from a history of alcoholism, a history of chronic obstructive pulmonary
disease, and a history of urinary tract infection.      ALJ Decision at 15.
The ALJ then found that the combination of these impairments restricts Sird
as follows:


     He must avoid extremes of hot and cold conditions.       He must
     avoid moving machinery, more than moderate levels of




                                   -2-
     dust, fumes, and smoke.     He should perform no work that
     requires clear oral communication.     He is able to do only
     simple, routine, repetitive work with no written material or
     math computation. His work should not require constant, very
     close attention to detail or use of independent judgment for
     decisionmaking. He should have no more than occasional contact
     with the public and needs occasional supervision. He is able
     to work at no more than a regular pace.


Id. at 16.


     This finding necessarily incorporates a determination that Sird's
ability to work has been additionally impaired in the period since he
performed past relevant work.     A vocational expert testified Sird's past
relevant    work included work as a forklift driver, a box marker, a
construction worker, and a truck-driver helper.      Id. at 14.   Since these
jobs are obviously more strenuous than the "light" and "sedentary" work the
vocational expert testified Sird could perform, the ALJ concluded Sird
could not perform his past relevant work.3     In our opinion, this finding
cannot be squared with the later finding that Sird does not have an
impairment significantly limiting his ability to work that is unrelated to
his IQ.


         Neither party presented evidence that Sird's mental impairments have
deteriorated since performing his past relevant




     3
      The Dictionary of Occupational Titles (DOT) classifies jobs
in part with a physical demands rating. The rating system assigns
a rating of "sedentary," "light," "medium," "heavy," or "very
heavy" to each job the DOT lists.     While the vocational expert
testified Sird could perform only jobs in the "light" or
"sedentary" category, his past jobs are assigned significantly
higher physical demands ratings. According to the DOT, the jobs of
forklift driver (921.683-050) and box marker (652.685-018) require
"medium" physical demands, while truck-driver helper (905.687-010)
is assigned a rating of "heavy", and construction worker (869.687-
026) is assigned a rating of "very heavy."

                                     -3-
work.4    Therefore, it is a reasonable assumption that the ALJ's opinion
limiting Sird to light or sedentary work, as opposed to the heavier work
he was performing before, is related not to his mental impairment, but to
the physical impairments pointed out above.


        The       issue   thus    boils   down    to    whether   these     limitations    are
sufficiently significant to find that Sird qualifies for benefits under
§ 12.05(c).         The ALJ found that Sird could perform some light or sedentary
jobs.     On this basis, the ALJ denied benefits because Sird was not
prevented from performing all gainful activity.                   We respectfully submit
this analysis is circuitous.              The issue is not whether the claimant can
perform       gainful     activity;    rather,     it   is   whether   he   has   a   physical
impairment, other than his conceded mental impairment, which provides
significant work-related limited function--in other words, whether the
second prong of § 12.05(c) is met.


        Our court originally reviewed this issue in Cook v. Bowen, 797 F.2d
687 (8th Cir. 1986).             There, we held that the second prong of § 12.05(c)
is met when the claimant has a physical or additional mental impairment
that has a "more than slight or minimal" effect on his ability to perform
work.    Id. at 690.5        In Warren v.




              4
          The Secretary's regulations "expressly define mental
retardation as denoting 'a lifelong condition.'"       Branham v.
Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985) (quoting 20 C.F.R.,
pt. 404, subpt. P, app. 1 § 12.00(B)(4)). "[I]n the absence of any
evidence of a change in a claimant's intelligence functioning, it
must be assumed that the claimant's IQ [has] remained relatively
constant." Luckey v. Dept. of Health & Human Serv., 890 F.2d 666,
668 (4th Cir. 1989) (per curiam).
          5
        Other circuits have approached the issue along the same
lines. See, e.g., Nieves v. Secretary of Health & Human Serv., 775
F.2d 12, 14 (1st Cir. 1985) ("An impairment imposes significant
limitations when its effect on a claimant's ability to perform
basic work activities is more than slight or minimal."); Edwards v.
Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985) ("That 'significant'
involves something more than 'minimal' but less than 'severe'
follows from the regulations.")

                                                 -4-
Shalala, 29 F.3d 1287 (8th Cir. 1994), we reaffirmed that test, relying in
part on a Fourth Circuit opinion which held that to be "significant" the
functional limitation under § 12.05(c) "need not be disabling in and of
itself."   Branham v. Heckler, 775 F.2d 1271, 1273 (4th Cir. 1985).            As the
Branham court reasoned, "If the plaintiff's physical impairment were
required to be independently disabling, section 12.05(c) would be rendered
meaningless.     Therefore,   something    less   than      a   preclusion   from   any
                                                  6
substantial gainful employment must apply."           Id.


     The Branham court went on to hold that if a claimant cannot perform
his past relevant work, he "experiences a significant work



      6
       With all due respect to Judge Bowman's dissent, the issue
cannot be one of whether the petitioner can perform substantial
gainful activity; the effect of this investigative focus is to
empty § 12.05 of meaning. What the dissent overlooks is that the
purpose of § 12.05(c) is to compensate a claimant with an IQ in the
60-70 range and a limitation of function that affects his work.
Our relevant inquiry under § 12.05(c) is whether, in addition to
Sird's conceded mental impairment, he has a work-related impairment
of function. Under the findings of the ALJ, there can be little or
no question that one exists: he can no longer do his past relevant
"heavy" work, but instead is relegated to "light" or "sedentary"
work. The dissent's failure to recognize this limitation as one
that is "more than slight or minimal" is not in accordance with the
cases of this circuit or any other.

     Judge Bowman relies upon 20 C.F.R. § 416.905(a), which states
that to meet the definition of disability, a claimant must have a
"severe impairment, which makes [him] unable to do [his] previous
work or any other substantial gainful activity which exists in the
national economy." (Judge Bowman's emphasis). This language is
not relevant to a determination of disability under 12.05(c). If
the defendant has, as in this case, a conceded mental impairment,
and in addition has a significant work-related physical impairment
of function, then whether the claimant can perform other gainful
activity is not relevant. As the First Circuit noted, "[I]f the
claimant meets a listed impairment [under, e.g., § 12.05(c)], the
Secretary is required to find a claimant disabled and not consider
whether he or she could perform other work." Nieves, 775 F.2d at
13 (emphasis added); see also 20 C.F.R. § 404.1520(d) ("If you have
an impairment(s) which . . . is listed in appendix 1 . . . , we
will find you disabled without considering your age, education, and
work experience.") (emphasis added).

                                     -5-
related limitation of function" and meets the second prong of § 12.05(c).
Id.   We think this conclusion is ineluctable.7


      The Secretary urges that the Fourth Circuit ruling establishes a per
se rule and that a better practice would be to interpret § 12.05(c) under
the Eighth Circuit's "more than slight or minimal" test.    In this case, we
are not convinced these two tests are different in their application.     In
both Branham and the present case, the claimants' physical impairments
prevent     them from carrying on past relevant work.   Sird's past relevant
work required a full range of functions, while his current physical
limitations relegate him to light or sedentary work.       It requires little
scrutiny to say this scenario constitutes a work-related limiting function
that is more than slight or minimal.       In the present case, under either
test, the claimant is entitled to benefits.


      Judgment vacated; the cause is remanded to the Secretary with
directions to award the claimant benefits.


BOWMAN, J., dissenting.


      I respectfully dissent.


      The regulations promulgated under Title XVI of the Social Security
Act set out a sequential analysis for evaluating a claimant's alleged
disability for the purposes of awarding Supplemental Security Income (SSI)
benefits.    The administrative law judge (ALJ) follows this analysis when
reviewing the Commissioner of Social Security's decision to grant or deny




      7
      The Fourth Circuit has followed Branham in subsequent cases.
See Flowers v. Department of Health & Human Serv., 904 F.2d 211
(4th Cir. 1990); Luckey v. Department of Health & Human Serv., 890
F.2d 666 (4th Cir. 1989). The Secretary has filed an acquiescence
to these holdings but has limited it to cases arising in the Fourth
Circuit. AR 93-1(4).

                                     -6-
benefits.     First, the ALJ determines whether the claimant is engaged in
"substantial gainful activity."           20 C.F.R. § 416.920(b) (1996).                If so, the
claimant is not disabled.         If not, and it is undisputed here that Sird is
not working, then the ALJ advances to the next step and decides if the
impairment     alleged    by    the     claimant     is   severe,       that    is,    whether   it
"significantly limits [his] physical or mental ability to do basic work
activities."    Id. § 416.920(c).         If it is not severe (or does not meet the
durational requirements), the applicant is not disabled.                              See id.    An
impairment is disabling within the meaning of the regulations if it meets
or equals an impairment "listed in appendix 1."                  Id. § 416.920(d).


     The ALJ held that Sird does not have a listed impairment, but the
Court rejects that conclusion and holds that Sird has the impairment
described in § 12.05C of 20 C.F.R., Part 404, Subpart P, Appendix 1 (1996).
Under § 12.05C, a claimant's disability is sufficiently severe to warrant
the award of benefits if (1) his IQ score is in the range of 60 through 70
and (2) he has "a physical or other mental impairment imposing additional
and significant work-related limitation of function."                    The Commissioner has
conceded that Sird's IQ falls within the applicable range, and the Court
now concludes that Sird has the requisite additional limitation.                                  I
disagree.


     Because     the     ALJ    found    in   his    review   that       Sird    has    no   listed
impairment, he completed the sequential analysis for SSI disability.                             The
ALJ determined that Sird did not have a listed impairment but that he
nevertheless    could     not    do     his   past   relevant    work.          See     20   C.F.R.
§ 416.920(e) (1996).      That did not end the inquiry, however.                      The ALJ went
on to conclude that Sird retained "residual functional capacity" and,
considering     all    pertinent      factors       (including      a    vocational       expert's
opinion), the ALJ determined that Sird was able to "do other work" despite
his impairment, and thus was not disabled.                  Id. § 416.920(f)(1).             It is
upon this finding that the Court seizes to reverse the decision not




                                              -7-
to award SSI benefits to Sird.


     Relying on the Fourth Circuit's opinion in Branham v. Heckler, 775
F.2d 1271 (4th Cir. 1985), the Court uses the ALJ's finding that Sird
retained some ability to work (which in fact led to a conclusion of no
disability) in order to bootstrap an "additional and significant work-
related limitation of function" within the meaning of § 12.05C.   This seems
to me counterintuitive--to rely on the evidence supporting a decision that
Sird is not disabled to support the Court's holding that he is.     I reject
the per se effect the Court wishes to give a conclusion by the ALJ--which
will be reached only if the ALJ decides the claimant has no listed
impairment in the first place--that the claimant's inability to perform his
past relevant work but his retention of the capacity to perform other work
(together with the necessary mental impairment) will qualify him to receive
SSI benefits.


     "The law defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable physical or mental
impairment . . . ."     20 C.F.R. § 416.905(a) (1996).        "To meet this
definition, [a claimant] must have a severe impairment, which makes [him]
unable to do [his] previous work or any other substantial gainful activity
which exists in the national economy."         Id. (emphasis added).     This
provision closely tracks the language of the governing statute.        See 42
U.S.C. § 1382c(a)(3)(A)-(B) (1994).    It is my position, and the statute and
the regulations in plain language so state, that a person who can perform
substantial gainful activity, regardless of a mental impairment that does
not by itself qualify the claimant for SSI benefits, is not disabled within
the meaning of the Social Security Act and its regulations.


     I do not believe my view is at odds with the law of this Circuit.
We have defined an impairment that imposes a "significant limitation"
within the meaning of § 12.05C as one whose "effect on




                                      -8-
a claimant's ability to perform basic work is more than slight or minimal."
Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986).   Of course, a wide range
of limitations are covered between "slight and minimal," a finding of which
would result in a conclusion that the claimant is not disabled, and
"severe," a finding of which would lead to further review for a listed
impairment.    I think in order to be "significant" as the regulation
demands, the limitation required, while something less than severe,
nevertheless must be substantially more than "slight or minimal."      See
Keller v. Shalala, 26 F.3d 856, 859-60 (8th Cir. 1994) (Loken, J.,
dissenting).   In any case, Sird's ability to perform light or sedentary
work, albeit not his past relevant work, can only be viewed logically as
having a positive effect on his "ability to perform basic work."


     The Commissioner's decision that Sird is not entitled to SSI benefits
"is supported by substantial evidence on the entire record."        Box v.
Shalala, 52 F.3d 168, 170 (8th Cir. 1995).   I would affirm the decision of
the District Court affirming the decision of the ALJ that the Commissioner
properly denied SSI benefits to Sird.


     A true copy.


           Attest:


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




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