Flanery v. Chater

• Decision Date: 25 April 1997
• Docket Number: No. 96-2529,96-2529
• Citation: 112 F.3d 346
• Parties: Belinda FLANERY, Appellant, v. Shirley S. CHATER, Commissioner of the Social Security Administration, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 346

112 F.3d 346

53 Soc.Sec.Rep.Ser. 199

Belinda FLANERY, Appellant, v. Shirley S. CHATER, Commissioner of the Social Security Administration, Appellee.

No. 96-2529.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1997.

Decided April 25, 1997.

E. Gregory Wallace, argued, Buies Creek, NC (Anthony W. Bartels, Jonesboro, AR, on the brief), for appellant.

Chris C. Yu, argued, Dallas, TX (Paula J. Casey, U.S. Attorney, Joseph B. Liken, Acting Chief Counsel, Region VI, Social Security Administration and Tina M. Waddell, Acting Deputy Chief Counsel, Social Security Administration, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Circuit Judge, BEAM, Circuit Judge, and ALSOP, ¹ District Judge.

BEAM, Circuit Judge.

Belinda Flanery appeals the denial of Supplemental Security Income (SSI) benefits. Because we find the Commissioner's decision is not supported by substantial evidence in the record as a whole, we reverse and remand for an award of benefits.

I. BACKGROUND

Flanery is a twenty-six-year-old woman with a seizure disorder and borderline intellectual functioning. She suffers from both grand mal seizures ² and psychomotor seizures. ³ She has a ninth-grade education and has never been employed. Flanery applied for SSI benefits in 1992, alleging disability since 1983 due to epilepsy and mental problems. Her application was denied initially and on reconsideration. She then requested a hearing before an administrative law judge (ALJ).

At the hearing, Flanery testified that on most days she has several nervous spells or "fits." Whenever one of these "spells" occurs, her hands draw up, her eyes roll, and she cannot comprehend what is happening around her. These episodes last for about a minute following which she has no recollection of them and has to rest for half an hour. Her daily activities, on good days, include preparing meals for her three children and light housework. She said these activities sometimes provoke a "spell." She is so tired after housecleaning that she suffers severe headaches and sometimes seizures. As a result, she stated that she "lays around" most of the time. She is unable to drive.

Flanery's husband also testified at the hearing. He stated that he witnessed eight "spells" in a one-hour period the previous day. His description of the spells was similar to that of his wife. He estimated that the spells generally occur five or six times a day, more often when she is active. The record contains statements of other people who have witnessed one or more of Flanery's "seizures," "convulsions," "blackouts," or "spells." These witnesses described Flanery trembling, staring into space, jerking her head, and being unable to remember the episode. In addition, the record shows that Dr. Russell L. Dixon, a psychologist, also witnessed Flanery having both a grand mal seizure and a shorter jacksonian seizure, ⁴ during which she stared ahead blankly, ground her teeth, rotated her head and jerked slightly several times.

The medical evidence shows that Flanery suffers from both grand mal seizures and psychomotor or focal seizures. She was first treated for a seizure disorder when she was thirteen years old. She was treated with an anti-convulsant medication that apparently controlled her grand mal seizures. In 1991, Flanery's treating physician, Dr. Gary R. Goza, noted that Flanery continued to suffer from "spells" involving a sudden loss of memory and comprehension. The frequency of the spells varied--she sometimes would not have any for a few days and sometimes had several in a day. Dr. Goza's diagnosis was "seizure disorder, generalized seizures appear to be well-controlled," although at that time he questioned whether Flanery might still be having partial seizures. ⁵

An EEG later in 1991 showed abnormal brain function. Dr. Goza noted a pattern of brain activity which is "sometimes seen in patients with generalized seizure disorders." In a September 1992 letter to the state disability office, Dr. Goza stated that Flanery suffers from "episodes of transient inability to respond, partial complex seizures, and occasional grand mal seizures." In a February 1993 letter, Dr. Goza stated that Flanery suffers from partial complex seizures that last about fifteen seconds and occur several times a week. In December 1993, Dr. Goza's notes again indicate that Flanery "otherwise continues to have episodes almost every day where she feels her eyes are fluttering and she is unable to respond appropriately for a short time but doesn't lose consciousness."

A neurologist, Dr. Peggy J. Brown, examined Flanery in 1994. Dr. Brown reported that Flanery's "seizure disorder sounds like it is consistent with complex partial seizures with secondary generalization." Dr. Brown also noted that the results of Flanery's August 1994 EEG were consistent with complex partial epilepsy and noted that Flanery's seizures were "not completely controlled on Tegretol or Dilantin." ⁶ In December 1994, Dr. Brown again characterized Flanery's seizures as "poorly controlled."

A vocational expert testified at the hearing. He was asked whether there were jobs in the national economy that a person of Flanery's age and work experience, with seizures controlled by medication, could perform if she were limited to "unskilled work which consists of nothing more than simple repetitive tasks done under simple direct concrete supervision" with interpersonal contact limited to "no more complex than that necessary to carry out the simple and direct concrete instructions" and where the work "can be performed without working at heights, around dangerous machinery, which does not require driving of a vehicle nor the carrying of a firearm." He responded that such jobs, for example those of house cleaners or child care workers, exist in the national economy. The vocational expert was then asked, by Flanery's counsel, whether jobs existed for a person of Flanery's age and experience who had infrequent grand mal seizures and four to five petit mal seizures ⁷ a day that required her to rest for up to thirty minutes after each seizure. The vocational expert stated that there were no such jobs in the national economy.

The ALJ found that although Flanery suffers from a severe seizure disorder and borderline intellectual functioning, she does not have a disorder that meets or equals the listing of presumptively disabling impairments. In making that finding, he noted that "the medical record shows that the claimant's seizure disorder is under good control with Dilantin" and that "the medical findings that are present are not consistent with the disabling level of seizures alleged by the claimant." He discounted Flanery's testimony regarding daily seizures as inconsistent with her daily activities and found her "subjective allegations are not borne out by the overall record and are found not to be fully credible." The ALJ also discounted Flanery's husband's account of the seizures as based on an uncritical acceptance of Flanery's complaints and motivated by a desire to help her obtain benefits. The ALJ thus found that Flanery has the residual functional capacity to perform a wide range of medium work, such as that of a child care worker or a house cleaner. The Appeals Council affirmed the decision, as did the district court.

On appeal, Flanery contends that the ALJ's decision is not supported by substantial evidence. She argues that her impairment meets or equals the presumptively disabling condition listed in Section 11.03 of the Appendix 1 to Subpart P of 20 C.F.R. Part 404 ("the Listings") which describes disability by reason of epilepsy with minor motor seizures. ⁸

II. DISCUSSION

Our task on appeal is to determine whether the Commissioner's decision is supported by substantial evidence in the record as a whole. Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir.1995). In our review of the record, we thus consider evidence that detracts from the decision as well as evidence that supports it. Id. Substantial evidence is less than a preponderance, but enough that a reasonable mind might find it adequate to support the conclusion. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.1993).

Under the Commissioner's regulations, the disability determination involves step-by-step analysis of any current work activity, the severity of the claimant's impairments, the claimant's residual functional capacity and age, education and work experience. 20 C.F.R. § 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 532 (8th Cir.1984). If the claimant suffers from an impairment that is listed in the Listings or is equal to such a listed impairment, the claimant will be determined disabled without considering age, education, or work experience. Braswell, 733 F.2d at 533.

To be considered presumptively disabled under Section 11.03 of the Listings, a claimant must have seizures that are documented by an EEG and by detailed description of a typical seizure pattern with all associated phenomena. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.03 (1996). These seizures must occur more frequently than once a week in spite of at least three months of prescribed treatment. Id. he seizures must be accompanied by an alteration of awareness or loss of consciousness and transient postictal ⁹ manifestations of unconventional behavior or significant interference with activity during the day. Id.

Flanery's condition meets all of these requirements. Her seizures are documented by abnormal EEG results. Flanery and her husband testified that her seizures occur more often than once a week. The Flanerys testified that the seizures involve alteration of awareness and significantly interfere with daily activities. This testimony is further supported by the statements of other seizure witnesses and by the report of a doctor who witnessed a seizure. None of that testimony is contradicted in the record.

Furthermore, the medical evidence uniformly demonstrates that Flanery has...