Nancy E. CLARKE, Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Appellee

LARSON, Senior District Judge,

dissenting.

I respectfully dissent. I cannot agree to affirm the Appeals Council’s decision that this claimant can perform her past work under the circumstances of this case.

In holding the claimant could return to her past work in a greenhouse, the only full time job she has ever held, 1 the Appeals Council rejected the opinions of two administrative law judges that the claimant’s exertional capacity is limited to sedentary work, discounted the claimant’s substantial nonexertional impairments based solely on its evaluation of the objective medical evidence, and, in my view, exceeded the scope of the district court’s initial order remanding for the purpose of obtaining vocational expert testimony to consider properly these nonexertional impairments.

Appellant Nancy Clarke is, as the majority notes, an obese forty-four year old woman. 2 In fact, as the Secretary concedes, her weight equals that contained in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 § 10.10. While she does not possess any of the other physical characteristics required for her condition to meet the Listing, the spinal meningitis she suffered from as a child left her, according to physicians, psychologists, and psychiatrists retained by the Secretary himself, with pes cavus deformity in both feet, balance problems, poor fine motor coordination, a verbal IQ of 76, performance IQ of 81, and full scale IQ of 81, 3 very limited judgment and immediate recall, problems in concentration, difficulty with non-verbal reasoning and planning ability, very poor math skills, and a hostile and blunt demeanor.

The claimant missed a fair amount of school as a young child and took ten years to complete eight grades. In high school, she was passed from grade to grade until the eleventh grade, when school officials simply advised her to quit. Attempts at vocational rehabilitation failed as a result of her limited intellectual abilities. She is able to care for herself and perform routine household tasks, but must be allowed to perform them at her own pace. Except for brief periods in the 1960’s for vocational schooling and in the 1970’s when she lived with her sister, Clarke has lived with and been supported by her now seventy-nine year old mother and her step-father.

Clarke filed the instant claim for Supplemental Security Income benefits on December 31, 1981. The Secretary’s initial and *275 reconsideration decisions found her capable of light work and denied her benefits. After a hearing at which both the claimant and her mother testified, the administrative law judge found Clarke exertionally limited to sedentary work because of her inability to stand or walk for long periods of time due to the pes cavus deformity in her feet and her balance problems. Despite the existence of nonexertional impairments, the AU then applied the Medical-Vocational Guidelines and concluded there was work in the national economy which the claimant could perform. This decision was accepted by the Appeals Council and became the final decision of the Secretary.

On appeal, the district court reversed, implicitly affirming the Secretary’s sedentary exertional determination, but finding improper consideration of the claimant’s nonexertional impairments. The court reiterated well-settled Eighth Circuit law that when nonexertional impairments are present, the Secretary may not rely upon the Medical-Vocational Guidelines, but must instead call a vocational expert. See, e.g., Webber v. Secretary, Health & Human Services, 784 F.2d 293, 297 (8th Cir.1986), citing Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985); McCoy v. Schweiker, 683 F.2d 1138, 1146 (8th Cir.1982). 4 The court ordered the case remanded to the Secretary for the sole purpose of calling an expert witness to testify. On remand, the Appeals Council ordered a second administrative law judge to conduct “further proceedings consistent with the Order of the Court.”

At these proceedings, the second AU accepted the determination that the claimant was exertionally limited to sedentary work, and an expert vocational witness was called to testify concerning the effect of the claimant’s nonexertional impairments. The vocational expert testified there were no jobs in the economy which the claimant could perform in view of her nonexertional impairments, particularly her low IQ and poor fine motor skills. The AU adopted this conclusion and found the claimant disabled and eligible for supplemental security income benefits. 5

Without any notice to the claimant that her exertional level was being re-examined, the Appeals Council rejected the AU’s findings that the claimant’s foot problems prevented her from performing jobs requiring prolonged standing or walking. The majority characterizes this rejection as simply “viewpng] the record and interpreting] it differently,” but, as the Secretary effectively concedes, the Appeals Council’s decision necessarily overturned the AU’s evaluation of the testimony of the claimant and her mother concerning the extent of the claimant’s physical limitations. The Appeals Council also rejected the AU’s evaluation of the claimant’s nonexertional impairments, concluding she could perform any type of low-level routine work, despite the Secretary’s own consulting psychologist’s opinions to the contrary both in 1982 and in 1984. 6 In my view, the Appeals *276 Council’s decision that claimant can perform her past work does not withstand the “especially careful scrutiny” which I believe is required in this case. Webber, 784 F.2d at 296-97 .

Moreover, the Appeals Council’s decision clearly went beyond the district court’s initial remand order and the AU’s express statement to the claimant concerning the purposes of the second hearing. The majority declines to reach the question of whether the “law of the case” doctrine mandates an award of benefits here, because it was not raised before the district court. The law of the case doctrine prevents the relitigation of settled issues in a case, thus protecting the settled expectations of the parties, ensuring uniformity of decisions, and promoting judicial efficiency. Little Earth of the United Tribes, Inc. v. HUD, 807 F.2d 1433, 1441 (8th Cir.1986). The Secretary has acknowledged in prior cases that he is bound on remand to follow the law of the case doctrine, Hillhouse v. Harris, 547 F.Supp. 88, 92 (W.D.Ark.1982), aff'd, 715 F.2d 428 (8th Cir.1983), and counsel for the Secretary candidly admitted at oral argument in this case that the doctrine “has a bearing on this matter.”

The expectation of the claimant and her attorney, based upon the express statement of the second AU, was that her exertional capacity was no longer an issue in her case. The presentation of evidence by the claimant could well have been affected by this expectation. Yet, the Appeals Council used almost exclusively evidence from the 1984 hearing to overturn the AU's sedentary exertional ruling.

This Court does not ordinarily consider questions not properly raised below, but has the discretion to do so where, for example, resolution of the question is “beyond any doubt ... or where ‘injustice might otherwise result.’” Singleton v. Wulff, 428 U.S. 106, 121 , 96 S.Ct. 2868, 2877-78 , 49 L.Ed.2d 826 (1976) (citations omitted). See Struempler v. Bowen, 822 F.2d 40, 42 (8th Cir.1987); Parker v. Corrothers, 750 F.2d 653, 658 (8th Cir.1984); Wright v. Newman, 735 F.2d 1073 , 1076 (8th Cir.1984). I would reach the law of the case issue because I believe it is fundamentally unjust for the Secretary to “reshuffle the cards”—particularly without notice—once Clarke was “dealt a winning hand.” Skelton v. Bowen, 668 F.Supp. 629, 631 (N.D. Ohio 1987); Holst v. Bowen, 637 F.Supp. 145, 146-47 (E.D.Wash.1986); Davis v. Secretary, Health & Human Services, 634 F.Supp. 174, 178 (E.D.Mich.1986). See Little Earth of the United Tribes, Inc., 807 F.2d at 1441 ; Hooper v. Heckler, 752 F.2d 83, 87-88 (4th Cir.1985); Carrillo v. Heckler, 599 F.Supp. 1164, 1168-69 (S.D.N.Y.1984).

While application of the law of the case doctrine could mandate an award of benefits in this ease, at the very least I would reverse the Appeals Council’s decision that the claimant can perform her past work and would remand the case to the Secretary for further proceedings without prejudice to the claimant’s right to raise directly with the district court, should benefits again be denied, the question of whether the Secretary may properly revise his initial determination, implicitly affirmed on appeal to the district court the first time, that this claimant has the exertional capacity to perform only sedentary work.

. Clarke worked full time at a greenhouse in Chicago from some time in 1972 through early 1974, potting and planting plants for $1.80— $1.90 per hour. During this time, she lived with her sister, who drove her to and from work. When she was no longer able to live with her sister because of her sister’s divorce, she returned home to live with her mother in 1974. Her mother testified that because of the claimant’s inability to make floral arrangements, the local greenhouse/floral shops would not hire her, and the claimant has not worked since 1974.

Prior to obtaining her greenhouse job, Clarke worked briefly on a part-time "as needed" basis cleaning rooms at a motel. Her mother testified the motel was a "little one horse place” where the claimant could work at her own pace.

. In 1982, her weight was 259 pounds at a height of 61 !4 inches.

. The claimant’s Wechsler Adult Intelligence Scale scores have declined steadily since her past work in 1974. In 1976 her scores were: verbal 86, performance 95, full scale 89. By 1982 they had declined to: verbal 81, performance 84, full scale 82. Her most recent scores in 1984 were: verbal 76, performance 88, full scale 81. Where more than one IQ is customarily derived, the lowest of the IQ’s should be used in applying the Social Security regulations. Webber v. Secretary of Health & Human Services, 784 F.2d 293 , 298 n. 6 (8th Cir.1986). Clarke’s verbal score of 76 should thus be the reference point for purposes of determining her residual functional capacity.

. The district court’s order stated:

The evidence of plaintiffs pain, loss of balance and low intelligence show that her characteristics do not identically match the rule relied upon by the administrative law judge. A vocational expert should have been called to testify as to whether there are jobs at which this particular claimant can be substantially and gainfully employed.

. The administrative law judge denied the claimant’s applications for child's benefits and for disability benefits, finding that she was not disabled on either July 15, 1965, or on June 30, 1974, the dates she last met the eligibility requirements for those programs. He found her nonexertional impairments rendered her disabled as of December 31, 1981, however, the date she filed for supplemental security income benefits.

Although the AU emphasizes the claimant’s increasingly hostile demeanor in his decision, the record contains other evidence of the claimant’s post-1974 problems. In addition to declining IQ scores, Clarke experienced numerous physical difficulties, including a knee injury in 1978 when she lost her balance going up the stairs, extreme balance difficulties and Bell's palsy resulting in hospitalization in 1984, borderline hypertension, and shortness of breath upon any significant exertion such as climbing the stairs. She also continued to experience difficulties with her feet, and sought additional medical treatment for them in 1982-84.

.Dr. Sampel stated in 1982 that the claimant could perform only routine repetitive tasks that did not require a great deal of fine motor coordination. In 1984, he noted again her difficulty with speed of mental operation and fine motor *276 coordination, and stated that she "would have real difficulty doing any routine repetitive task due to her poor math skills and her limited judgment. She would also have real difficulty doing any type of routine repetitive task due to her generally negative and hostile attitude and her questionable emotional stability at this time.”