18 Soc.sec.rep.ser. 748, Unempl.ins.rep. Cch 17,515rosa Lee Brown, Appellant, v. Otis R. Bowen, M.d.,* Secretary of Health Andhuman Services, Appellee, 827 F.2d 311 (8th Cir. 1987)

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US Court of Appeals for the Eighth Circuit - 827 F.2d 311 (8th Cir. 1987) Submitted June 15, 1987. Decided Aug. 21, 1987

Linda S. Pettit, Des Moines, Iowa, for appellant.

John Beamer, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before HEANEY and BOWMAN, Circuit Judges, and HANSON,**  Senior District Judge.

HEANEY, Circuit Judge.


On March 25, 1986, this court held in Brown v. Heckler, 786 F.2d 870 (8th Cir. 1986), with Judge Bowman dissenting, that the second step of the sequential evaluation process used in social security cases by the Secretary of Health and Human Services (Secretary) was invalid. We reasoned that the second step of the sequential evaluation process was invalid because it conflicted with the language of 42 U.S.C. § 423(d) (2) (A). Id. at 871-72. We therefore required the Secretary, on remand, to reconsider Rosa Lee Brown's claim for disability and supplemental social security benefits.

Thereafter, the Secretary filed a petition for rehearing en banc. The petition was granted but rehearing was stayed pending a decision of the United States Supreme Court in Bowen v. Yuckert. On June 8, 1987, the Supreme Court held that the second step of the sequential evaluation process was not per se invalid. See Bowen v. Yuckert, --- U.S. ----, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). In regard to the application of that standard, however, a majority of the Court adopted a standard1  which provides that " [o]nly those claimants with slight abnormalities that do not significantly limit any 'basic work activity' can be denied benefits without undertaking" the subsequent steps of the sequential evaluation process. Id., --- U.S. at ----, 107 S. Ct. at 2298 (citations omitted).

In light of this decision of the Supreme Court, we withdraw our earlier opinion in Brown v. Heckler, 786 F.2d at 870, and remand to the district court with directions to it to remand to the Secretary to determine whether Brown's impairments are sufficiently severe to satisfy the standard set forth in the preceding paragraph. If the Secretary decides that they are sufficiently severe to meet this requirement, the Secretary must determine whether in light of her age, education, work experience, and physical and mental impairments, Brown is disabled.

We repeat what we stated in our first opinion with respect to the Secretary's obligation on remand:

The Secretary has a duty to develop a full and fair record, regardless of whether * * * the claimant is represented by counsel. See, e.g., Brissette v. Heckler, 730 F.2d 548, 549 (8th Cir. 1984). * * * The Secretary should also develop the record in regard to the medical opinion of Dr. Bery Engebretsen, Brown's treating physician, as required by Brissette, 730 F.2d at 550, and Lewis v. Schweiker, 720 F.2d 487, 489 (8th Cir. 1983). The need for this is apparent: although Engebretsen reported that Brown had "severe degenerative arthritis" and "chronic obstructive pulmonary disease," the Secretary found that Brown had no severe impairments. On remand, the Secretary should also give careful consideration to Brown's subjective complaints. See, e.g., Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir. 1984) [vacated and remanded, --- U.S. ----, 106 S. Ct. 2885, 90 L. Ed. 2d 974 (1986), reinstated, 804 F.2d 456 (8th Cir.), cert. denied, --- U.S. ----, 107 S. Ct. 3211, 96 L. Ed. 2d 698 (1987) ]; Layton v. Heckler, 726 F.2d 440, 442 (8th Cir. 1984); Ragsdale v. Secretary, Department of Health, Education and Welfare, 623 F.2d 528, 530 (8th Cir. 1980). Before the Secretary may disregard Brown's subjective evidence, she must make express credibility findings. See Basinger v. Heckler, 725 F.2d 1166, 1170 (8th Cir. 1984). Finally, the Secretary should consider the disabling effect of any psychophysiological impairments that Brown may have. [Footnote 6: Psychophysiological impairments may themselves render a claimant disabled under the Social Security Act, which defines "disability" in terms of mental, as well as physical, impairments. See, e.g., 42 U.S.C. § 423(d) (1); 20 C.F.R. Sec. 404.1520. Such an impairment, if sufficiently severe, may entitle a claimant to a finding of disabled without consideration of vocational factors. See 20 C.F.R. Part 404, Subpart P, App. 1, Sec. 12.04.] See Klug v. Weinberger, 514 F.2d 423 (8th Cir. 1975).

Id. at 872-73.

Reversed and remanded for action consistent with this opinion.

 *

Otis R. Bowen, M.D., is substituted for Margaret M. Heckler as current Secretary of Health and Human Services

 **

The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the United States District Court for the Southern District of Iowa, sitting by designation

 1

Five members of the Court joined in Justice Powell's opinion declaring the standard in the second step of the sequential evaluation process valid. Although joining in the majority opinion, Justice O'Connor, joined by Justice Stevens, wrote a concurring opinion to define the nature of that standard. Their views, along with those of Justices Brennan, Marshall and Blackmun, constitute a majority of the Court