Victoria A. Howard v. Kenneth S. Apfel ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1408
___________
Victoria A. Howard, *
*
Plaintiff – Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa
Larry Massanari, Acting Commissioner, *
Social Security Administration,1 *
*
Defendant – Appellee. *
___________
Submitted: November 14, 2000
Filed: July 10, 2001
___________
Before BEAM, HEANEY, and BYE, Circuit Judges.
___________
BYE, Circuit Judge.
Victoria Howard applied for disability insurance benefits and supplemental
security income benefits from the Social Security Administration (SSA) based on her
various medical conditions. After a hearing, an Administrative Law Judge (ALJ)
denied her request, finding that she was not under a disability as defined by the Social
1
Larry Massanari has been appointed to serve as Acting Commissioner of Social
Security and is substituted as appellee pursuant to Fed. R. App. P. 43(c).
Security Act. Howard sued the Commissioner in the district court,2 who decided in
favor of the Commissioner. She now appeals to us. We affirm the decision of the
district court.
I
Howard was 50 years old at the time of her hearing before the ALJ. She had
been working as a certified nurses' aid (CNA) until recently. She has had several
physical health problems. She suffered from limb-threatening distal aortic disease with
occlusion of the left iliac artery in its entirety and chronic ischemia, which caused
persistent pain in her left foot. Doctors performed an aortobifemoral bypass. The
surgery was deemed successful, and her doctor cleared her to return to work without
limitations. However, she still complains of constant pain in her foot and leg, and
states that she cannot walk for any distance or stand for any length of time. Later, her
doctor diagnosed carpal tunnel syndrome, which prevented her from wringing out rags
at work without pain. She underwent carpal tunnel release surgery. However, she
maintains that the surgery did not relieve her pain. Additionally, she suffers from
arthritis in her thumbs.
Howard also complains of depression. Her doctor diagnosed dysthymia,
prescribed antidepressants, and recommended follow-up treatment at the local mental
health center. Howard reported that the antidepressants relieved her symptoms; she
requested a release to return to work without limitations.
Dr. Juan Aquino, Ph.D., performed a psychological evaluation and administered
the Wechsler Adult Intelligence Scale – Revised (WAIS-R). Howard obtained a verbal
IQ score of 71, a performance IQ of 79, and a full scale IQ of 74. Dr. Aquino
2
The Honorable Judge Charles E. Wolle, District Judge for the Southern District
of Iowa.
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determined that Howard was "capable of performing simple instructions and procedures
despite borderline to deficient attention/concentration and borderline IQ which may
result in her pace being somewhat slow." He did not specifically test her ability to
read.
Howard claims that she is illiterate. At her hearing, she testified that she reached
the 6th or 7th, or possibly 9th, grade, but left school at age 14. She did pass the CNA
licensing exam, but claims it was read to her. She has a driver's license, for which she
had to pass a written exam; there is no evidence as to whether the exam was read to her
or whether she was able to read it on her own. One intelligence test placed her at a 2nd
grade level. No medical or psychological evaluator has found her to be illiterate.
However, the record indicates that she is taking classes to learn to read. The ALJ
concluded that she has a 9th grade education, which is defined as a "limited education."
20 C.F.R. §§ 404.1564 & 416.964.
Based on reports from state agency medical consultants who reviewed the
record, the ALJ concluded that Howard has the residual functioning capacity (RFC) to
perform
light work activities which do not require lifting and carrying objects
which weigh more than 20 pounds occasionally and 10 pounds frequently,
standing or walking more than 2 hours without a break, or sitting more
than 6 hours in an 8 hour day. The claimant is also limited in her ability
to operate foot controls or to climb and can only occasionally wring out
rags. In addition, the claimant is only capable of performing simple,
routine, repetitive work.
The ALJ then heard testimony from a vocational expert, who testified that
Howard would not be able to resume her work as a CNA. When posed a hypothetical
question as to whether a person with the above-quoted RFC, age, education, and work
experience could find work, the vocational expert (VE) opined that such a person could
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perform the work of a dining room attendant, a housekeeper/cleaner, a laundry worker,
or a hand packager, and that those jobs were available both nationally and in Iowa.
The VE also testified that, even with limitations on wringing out rags and grasping
items, Howard could still find work as a laundry worker.
The ALJ concluded that Howard was not disabled as defined by the Social
Security Act. Howard appealed the decision to the Appeals Council of the SSA, which
determined that there was no basis for granting review. Thus, the ALJ's decision stands
as the final decision of the Commissioner of Social Security. Howard then sued the
Commissioner in district court. The district judge rejected her specific contentions and
affirmed the AJL's decision. She now appeals.
On review, Howard makes four claims of error: (1) the ALJ failed to require the
Commissioner to provide objective medical evidence that supports an RFC to perform
other kinds of work at step 5 of the disability determination; (2) the ALJ failed to take
account of his own findings of fact in posing a hypothetical to the vocational expert; (3)
the ALJ should have found Howard to be mentally retarded and thus disabled under the
regulations; and (4) given Howard's educational level and physical disabilities, the ALJ
should have found that the guidelines support a determination that she is disabled.
II
We review decisions of the Commissioner using the same standard as the district
court. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). By statute, "[t]he
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). We have stated that
[w]e will uphold the Commissioner's determinations if they are supported
by substantial evidence on the record as a whole. Substantial evidence is
relevant evidence which a reasonable mind would accept as adequate to
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support the Commissioner's conclusion. In assessing the substantiality of
the evidence, we must consider evidence that detracts from the
Commissioner's decision as well as evidence that supports it. We may not
reverse the Commissioner merely because substantial evidence exists
supporting a different outcome.
Black v. Apfel, 143 F.3d 383, 385 (8th Cir. 1998) (internal quotations and citations
omitted).
We defer heavily to the findings and conclusions of the SSA. "If, after review,
we find it possible to draw two inconsistent positions from the evidence and one of
those positions represents the Commissioner's findings, we must affirm the denial of
benefits." Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996) (citing Siemers v.
Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
III
The SSA has established a 5-step sequential evaluation process for determining
disability. 20 C.F.R. §§ 404.1520 & 416.920. In step 5, the burden is on the
Commissioner to determine, either by applying a standard set of vocational guidelines
or by taking testimony from a vocational expert, that there are jobs available in the
national economy that the claimant could perform. Id. Howard contends that the ALJ
failed to hold the Commissioner to the burden of providing objective medical evidence
that supports an RFC to perform other kinds of work.
This court has considered and rejected Howard’s argument that additional
medical evidence must be produced at step 5. Anderson v. Shalala, 51 F.3d 777, 779
(8th Cir. 1995). In Anderson we noted that
[i]t was the ALJ’s responsibility to determine Anderson’s RFC based on
all the relevant evidence, including medical records, observations of
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treating physicians and others, and Anderson’s own description of her
limitations. 20 C.F.R. §§ 404.1545-46, 416.945-46. We must determine
whether the record presents medical evidence of Anderson’s RFC at the
time of the hearing. Frankl v. Shalala, 47 F.3d 935, 937-38 (8th Cir.
1995). If there is no such evidence, the ALJ’s decision “cannot be said
to be supported by substantial evidence.” Id.The need for medical evidence, however, does not require the Secretary
to produce additional evidence not already within the record. “[A]n ALJ
is permitted to issue a decision without obtaining additional medical
evidence so long as other evidence in the record provides a sufficient
basis for the ALJ’s decision.” Naber v. Shalala, 22 F.3d 186, 189 (8th
Cir. 1994).
Id. Since there was already sufficient medical evidence in the record to support the
ALJ's decision, the Commissioner was not required to produce additional medical
evidence at step 5.
IV
Howard next contends that the ALJ’s findings of borderline intellectual
functioning and dysthymia, and his determination that Howard often experienced
deficiencies of concentration, persistence or pace, were not adequately presented to the
vocational expert in the ALJ’s hypothetical. The ALJ asked the vocational expert to
assume that Howard would be capable of performing simple, routine, repetitive tasks.
Howard contends that this is reversible error.
“A hypothetical question must precisely describe a claimant’s impairments so
that the vocational expert may accurately assess whether jobs exist for the claimant.”
Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996). Testimony from a vocational
expert based on a properly-phrased hypothetical constitutes substantial evidence. Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996). The converse is also true. See Newton,
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92 F.3d at 695. However, “[w]hile the hypothetical question must set forth all the
claimant’s impairments, [citation omitted], it need not use specific diagnostic or
symptomatic terms where other descriptive terms can adequately define the claimant’s
impairments.” Roe, 92 F.3d at 676.
The ALJ’s hypothetical assumed that Howard was able to do simple, routine,
repetitive work. All versions of the hypothetical assumed this mental capacity, and no
additional details were brought out on direct or cross examination. We find that
describing her as capable of doing simple work adequately accounts for the finding of
borderline intellectual functioning. The diagnosis of dysthymia was properly excluded
from the hypothetical because it was being successfully treated by antidepressants and
Howard made no further complaints about it.
The State agency psychological consultant described Howard as often having
deficiencies of concentration, persistence or pace. This portion of the consultant's
opinion is described as “the medical severity of her condition, not a functional capacity
evaluation.” ALJ’s Decision, p. 8. The functional capacity assessment, prepared by
the same doctor on the same day, describes Howard as being “able to sustain sufficient
concentration and attention to perform at least simple, repetitive, and routine cognitive
activity without severe restriction of function.” Id. at 8-9. Based on this record, the
ALJ’s hypothetical concerning someone who is capable of doing simple, repetitive,
routine tasks adequately captures Howard’s deficiencies in concentration, persistence
or pace. See Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997) (holding that
hypothetical including the "ability to do only simple routine repetitive work, which does
not require close attention to detail" sufficiently describes deficiencies of concentration,
persistence or pace.)
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V
Howard also requests this court to take cognizance of the SSA's regulations at
20 C.F.R. § 404, Subpt. P, App. 1, § 12.05, entitled Mental Retardation and Autism.
The psychological consultant found Howard's borderline intellectual functioning to be
some evidence of mental retardation. Her IQ was determined to be 71. Howard claims
she should be allowed the benefit of the mental retardation categorization.
Pursuant to SSA regulations, if a claimant is found to "have an impairment(s)
which meets the duration requirement and is listed in Appendix 1 or is equal to a listed
impairment(s), [SSA] will find [the claimant] disabled without considering [the
claimant's] age, education, and work experience." 20 C.F.R. § 404.1520(d). Appendix
1 § 12.05 lists the criteria which establish mental retardation or autism. Howard claims
her mental capabilities should be considered the equal of those described in section
12.05C, "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing additional and significant work-related limitation
or function." 20 C.F.R. § 404, Subpt. P, App. 1, § 12.05C.
We have held that where a claimant's IQ score does not fall within the range
given in 12.05C, but is slightly above that range, the ALJ's determination that the
claimant is not mentally retarded is supported by substantial evidence. Cockerham v.
Sullivan, 895 F.2d 492, 496 (8th Cir. 1990). Thus, we must reject Howard's argument.
VI
Finally, Howard contends that the ALJ incorrectly determined that the medical-
vocational guidelines supported a finding of "not disabled." At step 5, in making a final
determination as to disability, an ALJ first looks to the Tables or "grids" set forth in
Appendix 2 to Subpart P. However, pursuant to the regulations,
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where an individual has an impairment or combination of impairments
resulting in both strength limitations and nonexertional limitations, the
rules in this subpart are considered in determining first whether a finding
of disabled may be possible based on the strength limitations alone and,
if not, the rule(s) reflecting the individual's maximum residual strength
capabilities, age, education, and work experience provide a framework for
consideration of how much the individual's work capability is further
diminished in terms of any types of jobs that would be contraindicated by
the nonexertional limitations.
20 C.F.R. § 404, Subpt. P, App. 2, § 2.00(e)(2). In Howard's case, the ALJ determined
that "the medical-vocational guidelines set out in 20 C.F.R. 404, Subpt. P, App. 2,
specifically Rules 202.10 and 202.17, provide a framework for a finding of not
disabled." ALJ's Decision 15. By including in the RFC the qualification that Howard
is only capable of performing simple, routine, repetitive tasks, the ALJ properly
accounted for her borderline intellectual functioning, a nonexertional impairment. See
Lucy v. Chater, 113 F.3d 905, 908 (8th Cir. 1997) (“We have previously concluded
that borderline intellectual functioning, if supported by the record as it is here, is a
significant nonexertional impairment”).
Howard argues that the ALJ considered the wrong guidelines because he looked
to the "grid" applicable to those capable of performing "light work." Howard contests
the conclusion that she can do "light work," and claims that she can do only "sedentary
work." The guidelines indicate a finding of not disabled for someone capable of
performing "light work," who is closely approaching advanced age, who has a limited
education, and whose previous work was unskilled. 20 C.F.R. § 404, Subpt. P, App.
2, § 202.10. However, the guidelines support a finding of disabled for someone
capable of performing only "sedentary work," but who shares all the other
characteristics above. 20 C.F.R. § 404, Subpt. P, App. 2, § 201.09. Essentially,
Howard contests the ALJ's determination that she can do "light work."
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We find substantial evidence in the record as a whole to support the ALJ's
conclusion that Howard is capable of "light work." The medical information
establishes that both surgeries, on her leg and on her hand, were successful and that she
was released to work without limitations. The ALJ determined that her subjective
testimony of pain was not credible, due to inconsistencies in the record as a whole.3
See Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999) (citing factors to consider when
analyzing a claimant's subjective complaints of pain and affirming ALJ's conclusion that
Gray's limitations were not supported by the record as a whole). Even so, the ALJ has
taken some account of her physical problems, and therefore placed limitations on her
standing, walking, and lifting abilities. Finally, the ALJ accounted for the subjective
pain from her carpal tunnel syndrome by stating that she could only occasionally wring
out rags.
Howard also contends that she is illiterate. If this is accurate, the guidelines
would support a finding of disabled even on the "grid" for "light work." 20 C.F.R. §
404, Subpt. P, App. 2, § 201.09. As noted above, even if an individual has a
combination of both exertional and nonexertional limitations, a finding of disabled may
be reached using the "grids" if the individual's exertional limitations alone dictate such
a finding. 20 C.F.R. § 404, Subpt. P, App. 2, § 2.00(e)(2). Thus, if Howard could
show that she is in fact illiterate, she would be entitled to a finding of disabled based
solely on her exertional limitations. See Cunningham v. Apfel, 222 F.3d 496, 503 n.10
(8th Cir. 2000) ("Consideration of Cunningham's nonexertional limitations such as pain
would only fortify the conclusion that she is disabled.").
3
For instance, Howard's testimony is inconsistent about whether she worked after
her onset date and about other aspects of her work history. Additionally, she is
inconsistent in describing her job duties as a CNA, and in describing her daily
activities. She also testified that her doctor told her to elevate her feet; however, the
medical records contain no mention of a doctor having told her to do so.
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The ALJ rejected Howard's claim of illiteracy. Although the ALJ commented
that "there is no real evidence in the file to support her statement," ALJ's Decision 12,
the record contains evidence of both literacy and illiteracy. Howard testified that she
required assistance on her nursing exam, and that the test was read to her. The record
also shows that at least one intelligence test placed Howard at only a second-grade
level, a level at which a person would not be expected to read well, if at all. Although
the ALJ found that Howard completed the 9th grade, the agency’s own regulations
recognize that “the numerical grade level that you completed in school may not
represent your actual educational abilities.” 20 C.F.R. § 404.1564(b). Howard
received low or failing grades in school, and it appears that reading was an especially
difficult subject for her. Finally, Howard was enrolled in reading classes at the time she
sought disability benefits.
On the opposite side of the balance are several facts that suggest that Howard
can read. She passed a driver’s test which ostensibly requires an applicant to complete
a written exam. Howard did not testify that the driver’s exam was read to her, and no
evidence suggests that the Howard passed the exam without reading the questions on
her own. In addition, the ALJ found that Howard left school after the 9th grade.
Although some 9th graders may be functionally illiterate, the more common inference
is that persons with nine years of public education possess some ability to read. Cf. 20
C.F.R. § 404.1564(b)(1) (noting that "[g]enerally, an illiterate person has had little or
no formal schooling."). Howard contests the ALJ’s finding that she completed the 9th
grade, but her evidence to the contrary is extraordinarily weak (and perhaps internally
inconsistent) and was apparently discounted by the ALJ. Moreover, although Dr.
Aquino found that Howard had borderline intellectual functioning, he made no mention
that she was illiterate. ALJ’s Decision 12.
The ALJ ultimately concluded that Howard could read. Because the literacy
question is crucial, the ALJ should have developed a stronger record on this point. See
Wilcutts v. Apfel, 143 F.3d 1134, 1137-38 (8th Cir. 1998) (noting that the ALJ has the
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duty to fully and fairly develop the record and listing tests which could be administered
to determine literacy). In the final analysis, however, the ALJ’s failure to develop more
robust proof of literacy (or illiteracy) is not fatal to the Commissioner’s decision. The
administrative record contains evidence pointing to Howard’s ability to read, and, given
our deferential standard of review, see Mapes, 82 F.3d at 262, we deem the evidence
sufficient to support the ALJ's conclusion that Howard is functionally literate.
Therefore, we find that she cannot benefit from 20 C.F.R. § 404, Subpt. P, App. 2, §
201.09. Rather, we affirm the ALJ's determination that 20 C.F.R. § 404, Subpt. P,
App. 2, § 201.10 supports a finding of "not disabled."
VII
For the reasons stated above, we affirm the decision of the district court.
HEANEY, Circuit Judge, dissenting.
Victoria Howard, a black female, was born on December 23, 1947. She has
fifteen children and fifty-four grandchildren. Her husband and a son are in prison. Five
of her children lived with her at the time of the hearing; two were teenagers and three
were younger. All five have been diagnosed with attention deficit hyperactivity
disorder.
Howard dropped out of school at age fourteen due to her first pregnancy. She
has, at most, a ninth-grade education, but tested at only the second-grade level.
Howard testified that she was unable to read. Her criminal history includes six to seven
assaults, the last of which occurred in the summer of 1996.
Howard was referred to Dr. Juan Aquino for a psychological evaluation. On
December 10, 1996, he reported:
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The client was administered the Wecshler [sic] Adult Intelligence Scale-
Revised. She obtained a verbal IQ score of 71, a performance IQ score
of 79, and a full scale IQ score of 74 on the WAIS-R. These scores place
her abilities in the borderline range of intellectual functioning. General
fund of knowledge, attention/concentration, visual perception,
planning/sequential ability following social cues, visual-spatial abilities,
and psychomotor speed/sustained attention were all borderline. Mental
calculations, common sense reasoning, and abstract/associative thinking
were deficient.
(Admin. Tr. at 308.) His findings included the following:
Attention/concentration is borderline to deficient, as evidenced by
relevant subtests from the WAIS-R. Given her borderline IQ, pace will
be somewhat slow. Although she may not have difficulties with simple
instructions and procedures, difficulties may increase as these procedures
and instructions become more abstract or detailed. However, by history,
we know that she certainly is capable cognitively of performing CNA
duties. Her judgment and ability to interact appropriately may be a source
of concern given her history of assaultive behaviors.
(Id. at 309.) The ALJ found that Howard has the following severe impairments:
“status post aorta femoral bypass surgery, degenerative joint disease of both thumbs,
status post carpal tunnel release, borderline intellectual functioning, and dysthymia.”
(Id. at 19.) It is conceded that Howard is not able to return to her past work as a
certified nurses’ assistant.
There are several reasons why I believe that we have no alternative but to
reverse and remand this matter to the Commissioner:
1. The hypotheticals posed by the ALJ to the vocational expert did not include
a complete and accurate statement as to Howard’s dysthymia and borderline intellectual
functioning, and the fact she would often experience deficiencies of concentration,
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persistence of pace resulting in the failure to complete tasks in a timely manner in a
work setting or elsewhere, nor did it include any reference to her assaultive conduct.
The hypotheticals read as follows:
Q [A]ssume that . . . the claimant is able to lift up to 20 pounds
maximum, 10 pounds frequently, that she was able to do simple, routine,
repetitive work. That following her leg surgery she was prevented from
doing any prolonged walking. That means more than two hours on her
feet without a break. She should also be limited as to operation of foot
controls and also limited in the amount of climbing needed.
....
Q . . . With these limitations would the claimant have been able to
return to the past job as nursing assistant?
A No, she would not be able to perform her past work.
Q . . . Would that job have given her any skills as she performed
it that could be used in other work activity under the hypothetical
question?
A No, those lower level skills do not transfer.
Q And taking into consideration that the claimant was a – is still
actually a younger individual who is functionally illiterate,4 having a less
than ninth grade education, but has the training and certification as a CNA
that she utilized in her work activity. Would there be unskilled work that
she could perform?
A Yes, according to this hypothetical she would be able to perform
work as a dining room attendant. Food service of course, and that would
4
A “functional illiterate” is defined as “[o]ne with some education but below a
minimum literacy standard.” Webster’s II New Riverside University Dictionary
(1984).
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be 311.69 – excuse me, 311.677-018. There’s estimated to be 1,200 in
Iowa and 90,000 in the United States. There would also be work in
housekeeping as a cleaner. DOT code 323.687-014. There’s estimated
to be 2,000 in Iowa and 200,000 in the United States. These jobs are all
by the way, light and unskilled. There would also be work in the laundry.
DOT code 361.685-014. There’s estimated to be 700 in Iowa and 45,000
in the United States. There would be jobs as a hand packager. The DOT
code is 929.587-010. The majority of these jobs are, are in the medium
capacity. However, these – this number that I give you are those that are
found to be in the light capacity. There would be 3,000 in Iowa and
180,000 In the United States.
(Admin. Tr. at 80-82 (emphasis added).)
Howard testified she is unable to read. The ALJ rejects this testimony for the
reason that she was able to take and pass a CNA examination and a written
examination to obtain a driver’s license. He rejects without any supporting evidence
her testimony that she was able to pass the CNA examination because it was read to
her. As to the driver’s license examination, he is obviously unfamiliar with the Iowa
practice which provides a computer at each testing station that reads the test out loud
to any person who requests it. If the ALJ were fulfilling his responsibility, he would
have questioned Howard as to how she was able to pass the driver’s license
examination if she could not read instead of assuming she was not telling the truth
about her reading ability.
2. Even if one assumes that the hypotheticals were complete and that a
functional illiterate can be found capable of performing light work, it is clear that
Howard is not able to perform the duties of house cleaner, 323.687-014; laundry
worker, 361.685-014; and hand packager, 929.587-010, each of which were classified
as light work. A person employed in these positions is expected to carry out detailed
written instructions; add and subtract two-digit numbers; multiply and divide tens and
hundreds by two, three, four, and five; perform operations with units such as a cup,
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pint, and quart; inch, foot, and yard; and ounce and pound; read at the rate of 95-120
words per minute; and print simple sentences containing a subject, verb, and object and
a series of numbers, names, and addresses. See Dictionary of Occupational Titles,
1011 (4th ed. 1991). There is absolutely no evidence in the record that she meets any
of these requirements. Nor is there evidence to indicate that a functional illiterate could
meet these requirements.
3. The position of dining room attendant that the vocational expert indicated
Howard could perform requires medium strength, which the record clearly indicates
Howard does not possess.
4. The ALJ found that Howard was not credible with respect to her subjective
complaints of pain and resulting functional limitations because her daily activities
indicated she was able to work. The testimony indicates that Howard only does light
cleaning, such as dusting, she watches television, and is driven to where she needs to
go by her two oldest daughters, her children help her fold and put away laundry, cook
for her, do outdoor chores, and run errands. (Admin. Tr. at 25.)
These activities certainly do not indicate an ability to work “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). In Baumgarten
v. Chater, 75 F.3d 366, 369 (8th Cir. 1996), we reiterated that “the ability to do
activities such as light housework and visiting with friends provides little or no support
for the finding that a claimant can perform full-time competitive work,” (quoting Hogg
v. Shalala, 45 F.3d 276, 278 (8th Cir. 1995)). This standard has correctly been applied
by this court in numerous other cases. See Rainey v. Department of Health & Human
Servs., 48 F.3d 292, 293 (8th Cir. 1995), (holding that heating food, visiting relatives,
and watching television were “activities we have held are not substantial evidence of
the ability to do full-time work.”); Kouril v. Bowen, 912 F.2d 971, 976 (8th Cir. 1990)
(stating that “[d]isability does not require total incapacity. It requires that an individual
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be unable to engage in substantial gainful activity.”); Cline v. Sullivan, 939 F.2d 560,
565 (8th Cir. 1991) (holding that claimant's “ability merely to perform the limited
service of pouring coffee or removing the excess plates from a table on an occasional
basis does not compel a conclusion that a claimant is capable of performing the full
range of sedentary work on a sustained basis.”); Thomas v. Sullivan, 876 F.2d 666, 669
(8th Cir. 1989) (stating that claimant's “ability to do light housework with assistance,
attend church, or visit with friends on the phone does not qualify as the ability to do
substantial gainful activity.”); Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989)
(holding that “[a]n applicant need not be completely bedridden or unable to perform
any household chores to be considered disabled.”).
In summary, there clearly is not substantial evidence in the record to support the
ALJ’s conclusion that Howard is capable of light work. In my view, the record rather
supports Howard’s claim that she is entitled to disability benefits. At the very least,
Howard is entitled to a remand and an additional evidentiary hearing at which a proper
hypothetical would be posed to the vocational expert, and any doubt as to Howard’s
literacy would be eliminated. It is wrong to deny a person benefits if a short additional
hearing would more than likely establish her eligibility.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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