The HONORABLE CAROL E. JACKSON, United States District *

Judge for the Eastern District of Missouri, sitting by

designation.

__________

96-1096 

__________

Donald A. Newton, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Shirley S. Chater, *

Commissioner of Social *

Security, *

*

Defendant-Appellee. *

__________

Submitted: June 14, 1996

Filed: August 9, 1996

__________

Before MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges, and JACKSON,*

District Judge.

__________

MURPHY, Circuit Judge.

Donald A. Newton appeals from a district court decision affirming the

Social Security Commissioner's denial of his applications for disability

insurance and supplemental security income benefits. We reverse and

remand.

I.

Newton applied for disability insurance benefits on April 22, 1993

under Title II of the Social Security Act, 42 U.S.C. § 401 et
2

seq., and for Supplemental Security Income (SSI) benefits under Title XVI

of the Act, 42 U.S.C. § 1381 et seq. He alleged disability from October

30, 1992, based on illiteracy, memory lapses, alcoholism, and hypertension.

His applications were denied initially and on reconsideration. 

A hearing before an administrative law judge (ALJ) was held in

November 1994. Newton was 37 years old at the time. His previous jobs

included unskilled or semi-skilled work pouring iron, cutting sod, sweeping

floors, applying hot roofing materials, and doing construction tasks.

These jobs involved medium to very heavy labor, did not require reading or

writing, and were not highly technical in nature.

Since his alleged onset date of disability, Newton has worked at two

jobs. During June to September of 1994, he worked at the Black Hawk

Foundry as a grinder and a metal beater, which involved carrying weights

between 150 to 200 pounds. He earned between $6.50 and $7.26 per hour and

worked at least forty hours per week. He testified at the hearing that he

drank during lunch, but stated he was fired because of an eye injury, from

which he has fully recovered. Newton also worked for one week with Rose's

Wood Products in October 1994, but said he quit because his drinking

prevented him from going to work in the mornings. He testified that he has

looked for other work.

 

According to intelligence tests, Newton has an I.Q. score of 77,

which is in the borderline range of mental deficiency. Newton testified

that he attended special education classes until the ninth or tenth grade,

but that his reading and arithmetic abilities were at a second grade level.

He said he could not read street signs but did read comic strips and

letters from his girlfriend. He also alleged difficulties with counting

and making change and claimed to have trouble remembering things. Near the

end of the hearing, however, he stated he had been able to concentrate and
3

answer questions during it.

 

Several medical reports were also introduced into evidence. Stephen

Paul Singley, M.A., evaluated Newton in May 1993. Newton was easily able

to recall his date of birth, the address where he had lived for one month,

and several things about his past. Singley concluded that Newton might

have dyslexia and was "quite incapable . . . of maintaining competitive

employment" if his daily functioning was similar to that during the

interview. Dr. Norman A. Scott reviewed Newton's medical records in July

1993 and concluded that he had moderate deficiencies of concentration,

persistence, or pace resulting in the failure to complete tasks in a timely

manner. Dr. Scott nevertheless concluded that Newton was capable of

completing independent simple activities. Dr. Janet S. McDonough reached

a similar conclusion based on her review in November 1993 of Newton's

records, reporting that he could concentrate well enough to complete

simple, routine tasks. 

Newton testified that he suffered from uncontrollable alcoholism.

He claimed two different companies had fired him for drinking on the job

and that he had been arrested three times for driving under the influence.

He stated he drank daily, using money from collected cans to fund his

habit. He has been through eight treatment programs and says he often

starts drinking within a few days after finishing a program. Newton's

treating physician, Dennis Straubinger, D.O., reported in March of 1993

that Newton was no longer using alcohol and that he was capable of working

as of March 25, 1993. Dr. D.V. Domingo, a psychiatrist who examined Newton

in May 1993, also reported that Newton had stated he was no longer using

alcohol, which was substantiated by a lack of alcohol smell on his breath.

Dr. Domingo concluded that if Newton stayed sober, he could carry out

instructions, interact appropriately with people around him, and maintain

attention and concentration for simple jobs such as janitorial work.
4

Newton was suffering no physical impairments except for numbness in

his right fingers due to an injury some eight years before the hearing.

(He writes with his left hand, but claimed he did most things with his

right hand.) Despite surgery to repair a nerve in his right wrist, he said

certain fingers could not feel objects. He stated on a prehearing

questionnaire that he did not take painkillers or any kind of medication.

 

 

Newton testified that his daily activities included riding his bike

to collect cans for money, visiting with his girlfriend and friends,

walking around, smoking cigarettes, occasional vacuuming, and fishing with

his eleven-year-old son. He also reported on his benefits application that

he liked to watch race cars and television. 

The ALJ posed two hypothetical questions to the vocational expert,

G. Brian Paprocki. The first hypothetical described a younger individual

with no physical limitations, a ninth or tenth grade education, a

borderline range of intelligence, a minimal ability to read and write, an

ability to perform only simple tasks, and an ability to control a drinking

problem. The vocational expert testified that such a person could work as

a foundry worker, commercial cleaner, roofer, or horticultural worker. In

the ALJ's second hypothetical, the individual had all of the above

limitations plus an inability to control his drinking. The expert assumed

such a person would not regularly report to work and could therefore not

hold employment. Newton's attorney then asked the expert about the effect

of the reported deficiency in concentration, persistence, and pace on

Newton's ability to work. The expert responded that these basic work

habits were necessary for a person to maintain employment, and that a

moderate deficiency in these abilities would cause problems on an ongoing

daily basis, "regardless of . . . what the job required from a physical

or skill standpoint." 
5

The ALJ issued a decision in February 1995, denying disability

insurance benefits. The ALJ found that Newton was not disabled due to the

performance of substantial gainful activity from June to September 1994 at

the Black Hawk Foundry. The ALJ found that Newton had borderline

intellectual functioning and a history of substance abuse. The ALJ

indicated on an attached Psychiatric Review Technique Form that Newton

often had deficiencies of concentration, persistence, or pace, but found

him capable of maintaining concentration and attention for simple work.

The ALJ stated that Newton had no impairment or combination of impairments

sufficient to meet the requirements in the regulations. The ALJ further

noted that Newton's recent foundry work showed he had no physical

limitations, he could control his drinking problem, and his daily

activities were not greatly restricted. Based on these findings, the ALJ

concluded Newton could perform his past work as a roofer, commercial

cleaner, horticultural laborer, and foundry worker. 

Newton pursued his administrative claim further and then turned to

federal court. The Appeals Council denied review in May 1995. The

district court affirmed the Commissioner's decision in December 1995,

concluding that it was supported by substantial evidence on the record as

a whole and not affected by any error of law. On appeal, Newton argues

that he was entitled to a trial work period in 1994, that the hypothetical

question posed to the vocational expert erroneously excluded his

deficiencies of concentration, persistence, or pace, that the ALJ

improperly discredited his complaints of uncontrollable alcoholism, and

that the evidence supported a finding of disability. 

II.

The Commissioner's decision to deny disability insurance benefits

will be affirmed unless it is unsupported by substantial evidence in the

record as a whole or based on legal error. Keller
6

v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). Our review encompasses

evidence that both supports and detracts from the Commissioner's decision.

Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996). 

A.

Newton argues that his work from June to September 1994 should not

have been considered as evidence of substantial gainful activity showing

that he was not disabled. He argues that his work constituted a trial work

period which could not be considered in determining his eligibility for

disability insurance benefits. The Commissioner responds that Newton

should not be allowed to raise the issue for the first time on appeal and,

in any event, he is not entitled to a trial work period because he was

never awarded benefits. She contends that the ALJ properly considered

Newton's 1994 work in assessing his alleged disability.

 

Newton asserted in his district court brief that he was "entitled to

a trial work period" and that his work during 1994 should not be fatal to

his disability claim. That brief cited the trial work provisions in both

the federal statutes and regulations, as well as Lacy v. Sullivan, 810 F.

Supp. 1038, 1040-42 (S.D.Iowa 1992), which discussed the effect on a

disability claim of activity during a trial work period. Newton has

sufficiently raised the trial work period issue, and it is properly before

us.

Under the Social Security Act, every insured individual under the age

of 65 who has filed an application for benefits and is under a disability

is entitled to benefits. 42 U.S.C. § 423(a)(1). Disability means the

"inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

A person
 Our review on this issue is limited to Newton's claim for 2

disability insurance benefits because trial work provisions no

longer apply to claims for supplemental security income benefits. 

See Employment Opportunities for Disabled Americans Act, Pub.L.

No. 99-643, 100 Stat. 3574 (1986) (amending 42 U.S.C. § 1382c by

eliminating provisions on trial work period). 

7

becomes entitled to disability benefits for each month after five

consecutive months of being under a disability. Id. §§ 423(a)(1)(D) &

(c)(2)(A). 

A determination of disability is made according to a five-step

sequential process. See 20 C.F.R. § 404.1520. These steps take into

account whether a claimant is working, whether the claimant's physical or

mental impairments are severe, whether the claimant's impairments prevent

a resumption of work done in the past, and whether the claimant's

impairments preclude any other type of work. Id. The regulations also

require a separate sequential process for evaluating allegations of mental

impairments in adult claimants. See id. § 404.1520a(a). 

If a claimant is working in a substantial gainful activity, he will

be considered not disabled under step one regardless of his medical

condition, age, education, and work experience. Id. § 404.1420. Any work

performed during a period of claimed disability may show that a claimant

can engage in substantial gainful activity. Id. Relevant factors include

amount of earnings and whether the work was conducted in a sheltered or

special environment. Id. § 404.1574.

Work done during a trial work period, however, may not be considered

in determining whether a claimant's disability has ceased during that

period. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a); Walker v.

2

Secretary of Health and Human Services, 943 F.2d 1257, 1260 (10th Cir.

1991); McDonald v. Bowen, 818 F.2d 559, 565 (7th Cir. 1986); Hunter v.

Department of HHS, 851 F.
8

Supp. 75, 79 (E.D.N.Y. 1994); Lacy v. Sullivan, 810 F. Supp. 1038, 1041

(S.D.Iowa 1992); Tepfer v. Secretary of HHS, 712 F. Supp. 156, 158

(W.D.Ark. 1989). This provision enables a claimant to test his or her

ability to work. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a). Work

performed during the trial period may only be considered in determining

whether a disability ended at some point after the trial period. 20 C.F.R.

§ 404.1592(a). In addition, a claimant's disability may be found to have

ended during the trial work period "if the medical or other evidence shows

that [the claimant is] no longer disabled." Id. § 404.1592(e)(2).

In order to be entitled to a trial work period, a claimant must be

entitled to disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R.

§ 404.1592(d)(2)(i). As noted, a claimant becomes entitled to disability

insurance benefits after filing an application and waiting five consecutive

months during which he or she is under a disability that has lasted or can

be expected to last twelve months. 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A).

The trial work period begins with the month in which the individual becomes

entitled to disability insurance benefits, but it may not begin before the

month in which the application for benefits is filed. Id. § 422(c)(3); 20

C.F.R. § 404.1592(e). The trial period ends at the close of the ninth

month, whether consecutive or not, in which services have been performed,

or at the month in which evidence besides the trial work shows the claimant

is not disabled. Id. § 404.1592(e)(1) & (2).

In this case, the ALJ's decision of no disability was premised on

Newton's work at the Black Hawk Foundry during 1994. At step one of the

sequential evaluation process the ALJ found that Newton's work from June

to September of 1994 amounted to substantial gainful activity and that he

was therefore not disabled. The ALJ then went on to evaluate Newton's

allegations of disability based on his alleged learning disability,

alcoholism, memory lapses, and hypertension. The ALJ cited the 1994 work

as
9

evidence that Newton's daily activities were fairly unrestricted, he had

no physical limitations, he could control his use of alcohol, and his

alleged impairments did not prevent him from returning to his past relevant

work. 

The ALJ erred in basing a decision of no disability on Newton's 1994

work without considering whether it qualified as falling within a trial

work period. If Newton was disabled for five consecutive months before he

began work in June 1994, then he would have been entitled to disability

insurance benefits and a trial work period. 42 U.S.C. §§ 422(c)(3) &

423(a)(1); 20 C.F.R. § 404.1592(e). If he was eligible for a trial work

period in June 1994, then his services for nine months thereafter would

constitute trial work. 20 C.F.R. §§ 404.1592(a) & (e). His trial work

could only show that his disability ended at some point after his trial

period. Id. (emphasis added). The Commissioner could determine that his

disability ended during the trial work period, however, based on medical

or other evidence besides his trial work. Id. § 404.1592(e)(2). 

 The Commissioner argues that Newton was not entitled to a trial work

period because he had not yet been awarded benefits. She cites 20 C.F.R.

§ 404.1592(d)(1), which states that "[t]hose who are receiving disability

insurance benefits . . . generally are entitled to a trial work period" and

Social Security Ruling 82-52, which states that when a "return to work

demonstrating ability to engage in [substantial gainful activity] occurs

before approval of the award and prior to the lapse of the 12-month period

after onset, the claim must be denied." She interprets these provisions

to mean that only those claimants who are awarded and receiving benefits

may have a trial work period.

 

While courts must give deference to an agency's interpretation of its

own regulations, courts are not bound by them and they are not conclusive.

White Industries, Inc. v. F.A.A., 692 F.2d 532,
 It is also unclear whether SSR 82-52 even applies in this 3

case. The ruling provides that a disability claim should be

denied if the claimant works before an award is approved and

before "the lapse of the 12-month period after onset [of

disability]." The ruling does not elaborate on whether the

period of twelve consecutive months begins immediately following

the alleged onset disability date, or at some point after the

onset date. If the former interpretation were correct, then SSR

82-52 would not seem to apply here because Newton's 1994 work at

the Black Hawk Foundry occurred well after the twelve consecutive

months following his

alleged onset disability date of October 30, 1992. Neither party

addressed this possibility in their briefs, and we have found no

case law on point. In light of our conclusion that Newton may be

entitled to a trial work period under the regulations, we find it

unnecessary to resolve this issue.

10

534 (8th Cir. 1982). Social Security rulings are intended to bind only the

Social Security Administration. 20 C.F.R. § 422.406(b)(1). They have

neither the force nor effect of law or Congressionally promulgated

regulations. See Heckler v. Edwards, 465 U.S. 870, 874 n.3 (1983). 

The cited regulation, 20 C.F.R. § 404.1592(d)(1), does not exclude

those who have not yet received benefits from engaging in trial work. That

provision does not state that only those who are receiving benefits are

entitled to a trial work period, only that they "generally are entitled"

to one. The only express requirement in the regulations for entitlement

to a trial work period is that a person be "entitled" to disability

insurance cash benefits. Id. § 404.1592(d)(2)(i). Under the statute,

entitlement to such benefits is not conditioned upon receipt of a benefits

award, but only upon the passage of five consecutive months of disability

lasting twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D) & (c)(2)(A).

A claimant may thus actually become entitled to disability benefits before

adjudication of his claim, and then the claimant's trial work period would

also begin before an award of benefits is approved.

The agency ruling, SSR 82-52, is inconsistent with the statutory

provisions governing the start of a trial work period. Under SSR 82-52,

a trial work period may begin only after benefits have been awarded and the

claimant has had a disability for twelve consecutive months. According

3
11

to the statute and regulations,
12

though, a trial work period starts in the month that entitlement to

disability benefits begins, which is the month following five consecutive

months of being under a disability that has lasted or is expected to last

a total of twelve continuous months. 42 U.S.C. § 423(d)(1)(A) (emphasis

added); 20 C.F.R. § 404.1592(e); Walker, 943 F.2d at 1260; Hunter, 851 F.

Supp. at 79; Lacy, 810 F. Supp. at 1041. In other words, under the

statute, a claimant need not have had a disability for twelve consecutive

months before he may test his ability to work. 

 

Moreover, conditioning trial work periods upon prior receipt of

benefits would subject claimants to the vagaries of the administrative

office in which the claim was filed. An individual whose claim is

efficiently processed might be able to begin trial work after expiration

of the five-month waiting period and award of benefits, in contrast to

another claimant who filed in a busier or less efficient office. See

Tepfer, 712 F. Supp. at 159. Claimants could be discouraged from working

prior to an adjudication, and, under SSR 82-52, they would be forced to

remain idle for at least one year. This situation would be inconsistent

with the trial work period policy to encourage people to return to work as

soon as possible. 42 U.S.C. § 422(c); Walker, 943 F.2d at 1260; McDonald,

818 F.2d at 1264; Hunter, 851 F. Supp. at 78. 

The language in the statutes and regulations does not require that

a trial work period be conditioned on a prior receipt of benefits and/or

the lapse of a twelve month period of disability. See 42 U.S.C.

§ 422(c)(2); 20 C.F.R. § 404.1592(a); Walker, 943 F.2d at 1260; McDonald,

818 F.2d at 565; Hunter, 851 F. Supp. at 79; Lacy, 810 F. Supp. at 1041;

Tepfer, 712 F. Supp. at 158. The
13

Commissioner thus erred in considering Newton's summer 1994 work as

evidence of substantial gainful activity to support a finding of no

disability without first determining whether he had been entitled to a

trial work period during that time. 

B.

Newton also challenges a hypothetical question posed to the

vocational expert. In support of a finding of no disability, the ALJ cited

the vocational expert's response to a hypothetical question which described

a person with a minimal ability to read and write, a borderline range of

intelligence, a ninth or tenth grade education, an inability to perform

highly skilled or technical work, a capacity for simple jobs, and a

demonstrated ability to control his drinking problem. Newton argues that

this question was defective because it omitted medical evidence of his

deficiencies of concentration, persistence, or pace resulting in a failure

to complete tasks in a timely manner.

A hypothetical question must precisely describe a claimant's

impairments so that the vocational expert may accurately assess whether

jobs exist for the claimant. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir.

1994). A vocational expert cannot be assumed to remember all of a

claimant's impairments from the record. Whitmore v. Bowen, 785 F.2d 262,

263-64 (8th Cir. 1986). An expert's testimony based upon an insufficient

hypothetical question may not constitute substantial evidence to support

a finding of no disability. Id.

There is no dispute in the medical evidence that Newton suffers from

deficiencies of concentration, persistence, or pace, or that these were not

mentioned in the hypothetical question. Dr. Scott found that Newton had

moderate deficiencies in his ability to carry out detailed instructions,

maintain attention and concentration for extended periods, perform

activities within a
14

schedule, maintain regular attendance, be punctual within customary

tolerances, complete a normal work week, and perform at a consistent pace

without an unreasonable number and length of rest periods. Dr. McDonough

found that Newton was markedly limited in his ability to carry out detailed

instructions and moderately limited in his ability to maintain attention

and concentration for extended periods. Consistent with these findings,

the ALJ stated on the Psychiatric Review Technique Form attached to the

decision that Newton "often" has deficiencies of concentration,

persistence, or pace. 

The vocational expert could not have been expected to remember

Newton's deficiencies in these areas from the record alone. See Whitmore,

785 F.2d at 263-64. Since these deficiencies were not included in the

hypothetical question, the expert did not base his opinion on the full

extent of Newton's limitations and his testimony could not have constituted

substantial evidence to support the Commissioner's decision. Id.

The Commissioner contends that these deficiencies did not have to be

included in the hypothetical question because the question limited Newton's

capabilities to simple jobs. She notes that Drs. Scott and McDonough

concluded that Newton's concentration problems did not significantly limit

his abilities to follow short and simple instructions and make simple workrelated decisions, and that Dr. Domingo determined Newton could maintain

concentration for simple work. 

The vocational expert stated on cross-examination, however, that

Newton's concentration and persistence problems related to basic work

habits needed to maintain employment. A moderate deficiency in these

areas, the expert testified, would cause problems on an ongoing daily

basis, "regardless of . . . what the job required from a physical or skill

standpoint." The expert's original response to the hypothetical question

may thus have been
 Recent amendments to the Social Security Act eliminate 4

alcoholism as a basis for obtaining disability insurance and

supplemental security income benefits. See Contract with America

Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847, 852-

53 (amending 42 U.S.C. §§ 423(d)(2) & 1382(c)). For claims

decided by the Commissioner before March 29, 1996 (the enactment

date of the amendments), disability benefits beginning on, or

after, January 1, 1997 may not be based on alcoholism. 110 Stat.

at 853-54. The final administrative adjudication of Newton's

claim was made in May 1995, when the Appeals Council denied

Newton's request for review of the ALJ's decision. If Newton

were disabled by alcoholism, his eligibility for benefits on this

basis could not extend beyond January 1, 1997. See id.

15

different if the question had already described all of Newton's functional

limitations. See Smith, 31 F.3d at 717. Any hypothetical question on

remand should include Newton's deficiencies of concentration, persistence,

or pace so that the vocational expert might accurately determine his

ability to work. 

C.

Newton contends that the ALJ erroneously discredited his complaints

of uncontrollable alcoholism by failing properly to apply the standards set

forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent

history omitted). He asserts that the overwhelming evidence shows he

cannot control his drinking and he is thereby incapable of working. 

In order to establish disability due to alcoholism, a claimant must

show that he has lost self-control to the point of being "impotent to seek

and use means of rehabilitation" and that his disability is encompassed by

the Act. Starr v. Sullivan, 981 F.2d 1006, 1008 (8th Cir. 1992) (citation 4

omitted). A key factor in assessing a claimant's ability to control his

use of alcohol is his ability to engage in substantial gainful activity.

Mapes, 82 F.3d at 263. The claimant's credibility is also assessed in

relation to daily activities; the duration, frequency, and intensity of the
16

subjective complaint; precipitating and aggravating factors; dosage,

effectiveness, and side effects of medication; and functional restrictions.

Polaski, 739 F.2d at 1322.

The ALJ found that Newton's alcohol usage had not been an

uncontrolled or persistently significant influence on his work abilities

based in part on his past twenty years of work and the 1994 work at the

Black Hawk Foundry. Although Newton worked fairly consistently from 1973

through 1992, it was in October 1992 that his alcoholism became allegedly

disabling. After that date, the only substantial gainful activity the ALJ

found that Newton had performed was his few months of work in 1994 at the

foundry. On remand, the ALJ may need to reexamine Newton's ability to

control his alcohol usage depending upon its determination of the trial

work period issue. 

III.

The judgment of the district court is reversed and the matter is

remanded so that the court may direct further administrative proceedings

consistent with this opinion.

A true copy.

 Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.