Katherine Eback v. Shirley Chater ( 1996 )

No. 95-4185
Katherine A. Eback, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Shirley S. Chater, *
Commissioner of Social *
Security, *
*
Appellee. *
Submitted: July 12, 1996
Filed: August 15, 1996
Before FAGG, LAY, and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
Katherine Eback is a 30-year-old, Native American woman with
a husband and a small child who has never engaged in substantial,
gainful employment. She has a history of chronic asthma, chronic
anxiety,1 and eczema. Because of her asthma, she requires the use
of a nebulizer at least four times a day. She is a high school
graduate with fourth- to sixth-grade reading skills and second- to
third-grade math skills. The administrative law judge (ALJ) found
that she was severely impaired, but that she could perform
unskilled, sedentary to light work in packaging, assembly,
1
As a consequence of her severe anxiety, Eback eats her own
hair; in 1984, surgeons had to remove a large mass of hair and
undigested food particles which completely filled her stomach and
trailed into the first eight to ten inches of her small intestine.
labeling, and machine operations where environmental irritants were
not present. The Appeals Council declined to review the ALJ's
decision, rendering the Agency's decision final. Eback sought
review in the United States District Court. The court granted
summary judgment in favor of the Commissioner. Eback appeals. We
reverse and remand to the district court; we further instruct the
court to remand to the Commissioner with directions to award Eback
disability benefits pursuant to section 1614(a)(3)A of the Social
Security Act, as amended, effective September 15, 1992, the date on
which Eback filed her application.
DISCUSSION
We review the Social Security Administration's decision to
deny benefits by looking to see whether the decision is supported
by substantial evidence in the record as a whole. McMillian v.
Schweiker, 697 F.2d 215, 220 (8th Cir. 1983). Once a claimant has
been found disabled, the Commissioner has the burden of proving
that Eback can do light or sedentary work in the occupations
specified by the vocational expert. Dawson v. Bowen, 815 F.2d
1222, 1226 (8th Cir. 1987); Lewis v. Heckler, 808 F.2d 1293, 1297
(8th Cir. 1987). The record reveals that the Commissioner has not
satisfied this burden.
First, it is uncontested that Eback requires daily use of a
nebulizer usually once between 7:00 and 8:00 a.m., again between
2:00 and 3:00 p.m., and twice during the evening hours. (Admin.
Rec. at 86-88.) Such use would be necessary if she were to be able
to perform all the duties of the jobs listed by the ALJ "day in and
day out, in the sometimes competitive and stressful conditions in
which real people work in the real world." McCoy v. Schweiker, 683
F.2d 1138, 1147 (8th Cir. 1982) (en banc). The vocational expert
testified that in answering the hypothetical he assumed that an
employer would allow the necessary nebulizer use on the job. "I'm
saying that would be a reasonable accommodation that an employer
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could or should make, particularly considering the ADA [Americans
With Disabilities Act]." (Admin. Rec. at 110.) The vocational
expert further testified that his opinion as to Eback's
employability would change if an employer were not willing to make
this accommodation. He stated:
Legally, with the ADA laws, an employer must make
reasonable accommodations for a person with a disability.
. . . [I]n my mind, . . . that would be a reasonable
accommodation to give them special times to use a
nebulizer to allow one to have that available for use
during the day on a reasonable basis.
(Admin. Rec. at 113.)
This rationale is faulty for numerous reasons, the most
significant of which is that a determination of relevant jobs
existing in the national economy in significant numbers must be
based on an assumption that the employer would be willing to make
accommodations under the ADA. The Associate Commissioner of Social
Security issued a statement that the ADA and the disability
provisions of the Social Security Act have different purposes and
have no direct relationship to each other.
[The inquiry into other available jobs] is based on the
functional demands and duties of jobs as ordinarily
required by employers throughout the national economy,
and not on what may be isolated variations in job demands
(regardless of whether such variations are due to
compliance with anti-discrimination statutes or other
factors). Whether or how an employer might be willing
(or required) to alter job duties to suit the limitations
of a specific individual would not be relevant because
our assessment must be based on broad vocational patterns
. . . rather than on any individual employer's practices.
To support a . . . finding that an individual can perform
"other work," the evidence . . . would have to show that
a job, which is within the individual's capacity because
of employer modifications, is representative of a
significant number of other such jobs in the national
economy.
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(Appellant's App. at 50.) We further note that many of the jobs
cited by the ALJ are shift jobs; break periods, if any, might not
coincide with claimant's requirements for use of the nebulizer.
The vocational expert never testified that the cited jobs routinely
offer employees breaks during an eight-hour work period as would be
necessary for Eback's condition.2
Moreover, the ALJ's finding that Eback has the residual
functional capacity to work is also contradicted by her other
impairments. She requires frequent hospitalizations for
complications due to her severe asthma. She was hospitalized in
February, March, and August of 1989; in January 1990; in April and
September 1991; and in March 1992. (Admin. Rec. at 460.) In
addition, she had six outpatient visits to the hospital in 1993 for
acute exacerbation of her asthma. (Admin. Rec. at 460, 461.)
Eback has long-standing, severe, atopic eczema and suffers from
considerable chronic anxiety, giving her a limited capacity to
undergo any type of stress. (Admin. Rec. at 461.) She possesses
only fourth- to sixth- grade reading and second- to third-grade
math skills (Admin. Rec. at 51), and has a subaverage general
intellectual functioning capacity. (Admin. Rec. at 145.) While it
may be that none of Eback's disabilities meet the requirements of
a listed impairment, when considered in totality, they present a
clear picture of a person who cannot hold down any of the full-time
jobs noted by the ALJ. See Thomas v. Sullivan, 876 F.2d 666 (8th
Cir. 1989) (holding claimant disabled although no one of claimant's
complaints was individually disabling because "taken together, and
in conjunction with how they limit her daily activities, they add
up to an inability to do real work.").
2
The ALJ states that "the use of the nebulizer machine only
once during the day could be accomplished during regular breaks."
(Admin. Rec. at 56.) No federal or state law requires an employer
to give employees a break, nor does the ALJ provide any support for
his statement.
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Finally, the ALJ found that Eback's current activities are
inconsistent with her testimony that she is unable to work. The
ALJ determined that the following activities indicate her ability
to work: taking care of her personal needs; sharing responsibility
with her husband for the care of her 19-month-old child; sharing
cooking and house cleaning responsibilities with her husband;
frequently driving to visit family members who live 1.5 miles away;
and attending bingo on a fairly consistent basis prior to 1993.
None of these activities, however, support the ALJ's conclusion
that Eback can do full-time work in the competitive local or
national economy. See Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.
1995) (claimant lived with her mother and cooked twice a day,
washed dishes, made beds, did laundry twice a week, cleaned house
twice a week, went shopping, and drove a car); Harris v. Secretary
of DHHS, 959 F.2d 723, 726 (8th Cir. 1992) (claimant shopped for
food, children's school supplies, and household items; drove a car
on occasion; did some cooking, ironing and laundry); and Thomas,
876 F.2d at 669 (holding claimant's ability to do light housework
with assistance, attend church, visit with friends on the phone
does not demonstrate claimant's ability to work).
We conclude that substantial evidence on the record as a whole
does not support the Secretary's determination that Eback is able
to perform unskilled, sedentary to light positions in packaging,
assembly, labeling, or machine operations where environmental
irritants are not present. Thus, we reverse and remand to the
district court with directions to remand to the Commissioner with
directions to award disability benefits pursuant to section
1614(a)(3)A of the Social Security Act, as amended, effective
September 15, 1992.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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