### 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 M ORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges, and JACKSON, * District Judge.

__________ MURPHY, Circuit Judge.
Donald A. Newton appeals from a district court decision affirmi ng the Social Security Commissioner's denial of his applications for disability insura nce and supplemental security income benefits. We reverse an d remand.

I.

Newton applied for disability insurance benefits on April 22, 199 3 under Title II of the Social Security Act, 42 U.S.C. § 401 et

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seq., and for Supplem ental 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 hear ing before an administrative law judge (ALJ) was held i n Novem ber 1994. Newton was 37 years old at the time. His previous job s included unskilled or semi-skilled work pouring iron, cutting sod, sweepin g 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 disa bility, Newton has worked at two jobs. Dur ing June to September of 1994, he worked at the Black Haw k Foundryas 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 testif ied at the hearing that he drank during lunch, but stated he was fired beca use of an eye injury, from which he has fully recovered. Newton also worke d for one week with Rose's Wood Products in October 1994, but said he quit because his drinkin g prevented him from going to work in the mornings. He testified that he ha s looked for other work.

Ac cording 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 an d letters from his girlfriend. He also alleged difficulties with counting and making change and claimed to have trouble remembering things. Near th e end of the hearing, however, he stated he had be en able to concentrate and

### 3

answer questions during it.
Several medical reports were also in troduced into evidence. Stephen Paul Singley, M.A., e valuated Newton in May 1993. Newton was easily able to recall his date of birth, the address where h e had lived for one month, and several things about his past. Singley concluded that Newton migh t have dyslexia and was "quite incapable . . . of maintaining competitiv e employment" if his daily functioning was similar to that during th e interview. Dr. Norma n A. Scott reviewed Newton's medical records in July 1993 a nd concluded that he had moderate deficiencies of concentration , persistence, or pace resulting in the failure to complete tasks in a timel y
mann er. Dr. Scott nevertheless concluded that Newton was capable o f completing independen t simple activities. Dr. Janet S. McDonough reached

a similar conclusion based on her review in November 1993 of Newton' s record s, reporting that he could concentrate well enough to complet e simple, routine tasks.

New ton 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 dr iving under the influence. He stated he drank daily, using money from collected cans to fund hi s habit. He has been through eight treatment programs and says he ofte n start s drinking within a few days after finishing a program. Newton' s treati ng physician, Dennis Straubinger, D.O., reported in March of 199 3 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 Newto n in May 1993, also reported that Newton had stated he was no longer using alcohol, which was substantiated by a lack of al cohol smell on his breath. Dr. Doming o concluded that if Newton stayed sober, he could carry ou t instructions, interac t appropriately with people around him, and maintain attention and concentration for simple jobs such as janitorial work.

### 4 Newton wa s suffering no physical impairments except for numbness in his right fingers due to an injury some eight years before the hearing

. (He writ es with his left hand, but claimed he did most things with hi s right hand.) Despite surgery to repair a nerve in his right wrist, he sai d
cer tain fingers could not feel objects. He stated on a prehearin g questionnaire that he did not take painkillers or any kind of medication.

Newton te stified that his daily activities included riding his bike to c ollect cans for money, visiting with his girlfriend and friends , walking around, smoking cigarettes, occasional v acuuming, and fishing with his eleven-year-old son. He also reported on his benefits application tha t he liked to watch race cars and television.

The ALJ posed two hypothetical questions to the vocational expert , G. Brian Paprocki. T he first hypothetical described a younger individual with no physical limitations, a ninth or tenth grade education, a borderline range of i ntelligence, a minimal ability to read and write, an ability to perform only simple tasks, and an abi lity to control a drinking problem. The vocational expert testified that s uch 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 abov e limitations plus an inability to control his dri nking. The expert assumed such a person would not regularly report to work and could therefore not hold employment. Newton's attorney then asked t he expert about the effect of the reported deficiency in concentration, persistence, and pace o n Newton's a bility to work. The expert responded that these basic wor k habits wer e necessary for a person to maintain employment, and that a moderate deficiency i n these abilities would cause problems on an ongoing dailybasis, "regardless of . . . what the job required from a physical or skill standpoint."

### 5 The ALJ issued a decision in February 1995, denying disabilit y insurance benefits. The ALJ found that Newton w as not disabled due to the performance of substantial gainful activity from June to September 1994 at the Blac k Hawk Foundry. The ALJ found that Newton had borderlin e intellectual functioning and a history of substance abuse. The AL J indica ted on an attached Psychiatric Review Technique Form that Newto n often had deficiencies of concentration, persistence, or pace, but found him ca pable 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 physica l limita tions, he could control his drinking problem, and his dail y activities were not g reatly restricted. Based on these findings, the ALJ
conc luded Newton could perform his past work as a roofer, commercia l cleaner, horticultural laborer, and foundry worker.

Newton pursued his administrative claim further and then turned t o federal c ourt. The Appeals Council denied review in May 1995. Th e distric t court affirmed the Commissioner's decision in December 1995 , concluding that it wa s supported by substantial evidence on the record as
a who le and not affected by any error of law. On appeal, Newton argue s that he was entitled to a trial work period in 1 994, that the hypothetical questi on posed to the vocational expert erroneously excluded hi s def iciencies of concentration, persistence, or pace, that the AL J impro perlydiscredited his complaints of uncontrollable alcoholism, an d that the evidence supported a finding of disability.

II.

The Commissioner's decision to deny disability insurance benefit s will be affirmed unless it is unsupported by substantial evidence in the record as a whole or based on legal error. Keller

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v. Shalala , 26 F.3d 856, 858 (8th Cir. 1994). Our review encompasse s evidence that both supports and detracts from th e 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 no t have been considered as evidence of substantial gainful activity showing that he was not disabled. He argues that his work constituted a trial wor k per iod which could not be considered in determining his eligibility fo r disabil ityinsurance benefits. The Commissioner responds that Newto n should not be allowed to raise the issue for the first time on appeal and, in a ny event, he is not entitled to a trial work period because he wa s
never awarded benefits. She contends that the ALJ properly considere d Newton's 1994 work in assessing his alleged disability.

Newton asserted in his district cour t 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 disa bilityclaim of activity during a trial work period. Newton ha s sufficiently raised the trial work period issue, and it is properly before
us.
Under the Social Security Act, every insured individual under t he age of 65 who has filed a n application for benefits and is under a disability is entitled to benefits. 42 U.S.C. § 423(a)(1). Disability means th e "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impair ment 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 become s entitled to disability benefits for each month after fiv e
conse cutive months of being under a disability. Id. §§ 423(a)(1)(D) & (c)(2)(A).

Adetermination of disability is made according to a five-ste p seq uential process. See 20 C.F.R. § 404.1520. These steps take int o account whether a cla imant is working, whether the claimant's physical or mental impairments ar e severe, whether the claimant's impairments prevent
a resump tion of work done in the past, and whether the claimant' s impairmen ts preclude any other type of work. Id. The regulations als o require a separate sequential process for evalua ting allegations of mental impairments in adult claimants. See id. § 404.1520a(a).

If a clai mant is working in a substantial gainful activity, he will be considered not disabled under step one regardless of his medica l 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 o r special environment. Id. § 404.1574.
Work done during a trial work period , however, may not be considered in det ermining whether a claimant's disability has ceased during tha t period. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a); Walker v

.

2 Secre taryof 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, 104 1 (S. D.Iowa 1992); Tepfer v. Secretary of HHS , 712 F. Supp. 156, 15 8 (W.D.Ark. 1989). This provision enables a claimant to test his or he r ability to work. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(a). Wor k per formed during the trial period may only be considered in determinin g whether a disability ended at some point after the trial period. 20 C.F.R

. § 404.1592(a). In ad dition, a claimant's disability may be found to have ended during the trial work period "if the medic al or other evidence shows that [the claimant is ] no longer disabled." Id. § 404.1592(e)(2).

In or der to be entitled to a trial work period, a claimant must b e entitled to disabilit y 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 consecutiv e months during which he or she is under a disabil ity 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 become s entitled to disability insurance benefits, but i t may not begin before the month in which the application for benefits is f iled. Id. § 422(c)(3); 20 C.F.R. § 404.1592(e). The trial period ends at the close of the nint h month, whether consec utive or not, in which services have been performed,
or at the month in which evidence besides the trial work shows the claiman t is not disabled. Id. § 404.1592(e)(1) & (2).

In this case, the ALJ's decision of no disability was premised o n 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 alleg ations of disability based on his alleged learning disability , alcoholism, memory la pses, and hypertension. The ALJ cited the 1994 work
as

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evidence that Newton's daily activities were fairly unrestricted, he had
no physica l limitations, he could control his use of alcohol, and hi s alleged impairments did not prevent him from returning to his past relevan t work.
The ALJ erred in basing a decision o f no disability on Newton's 1994
wor k without considering whether it qualified as falling within a tria l work period. If Newton was disabled for five co nsecutive months before he began wor k in June 1994, then he would have been entitled to disabilit y ins urance 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 woul d constit ute trial work. 20 C.F.R. §§ 404.1592(a) & (e). His trial wor k could onl y show that his disability ended at some point after his tria l period. Id. (emphasi s added). The Commissioner could determine that his disabilityended 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 hadnot yet been awarded benefits. She cites 20 C.F.R. § 404.1592(d)(1), whi ch states that "[t]hose who are receiving disability insurance benefits . . . generally are entitled to a trial work period" an d Socia l Security Ruling 82-52, which states that when a "return to wor k demonstrating ability to engage in [substantial gainful activity] occurs before approval of the award and prior to the la pse 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 an d 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 th e Social Security Administration. 20 C.F.R. § 422.406(b)(1). They hav e neithe r the force nor effect of law or Congressionally promulgate d 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 exclud e those who have not yet received benefits from engaging in trial work. Tha t provision does not state that only those who are receiving benefits ar e 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 tria l work period is that a person be "entitled" to disabilit y 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 contin uous 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 statutor y 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 th e claiman t has had a disability for twelve consecutive months. Accordin g 3

### 11

to the statute and regulations,

### 12

though, a trial work period starts in the month that entitlement t o disability benefits b egins, 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. § 4 04.1592(e); Walker , 943 F.2d at 1260; Hunter , 851 F. Supp. at 79; Lacy , 810 F. Supp. at 1041. In other words, under th e statute, a claimant n eed not have had a disability for twelve consecutive months before he may test his ability to work.

Mor eover, conditioning trial work periods upon prior receipt o f benefi ts would subject claimants to the vagaries of the administrativ e office in which the claim was filed. An individual whose claim i s efficientlyprocessed might be able to begin trial work after expiration of th e five-month waiting period and award of benefits, in contrast t o
ano ther claimant who filed in a busier or less efficient office. Se e 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 t o remain idle for at least one year. This situation would be inconsistent with the trial work period policy to encourage p eople to return to work as soon as possible. 42 U.S.C. § 422(c); Walker , 9 43 F.2d at 1260; McDonald , 818 F.2d at 1264; Hunter , 851 F. Supp. at 78.

The lang uage in the statutes and regulations does not require tha t
a trial work period be conditioned on a prior receipt of benefits and/or the la pse 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; Hun ter , 851 F. Supp. at 79; Lacy , 810 F. Supp. at 1041; Tepfer , 712 F. Supp. at 158. The

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Commis sioner thus erred in considering Newton's summer 1994 work a s evidence of substantial gainful activity to support a finding of n o disabilitywithout first determining whether he had been entitled to a trial work period during that time.

B.

Newton also challenges a hypothetical question posed to th e vocational expert. In support of a finding of no disability, the ALJ cite d the vocational expert's response to a hypothetical question which describe d
a person with a minimal ability to read and write, a borderline range of int elligence, a ninth or tenth grade education, an inability to perfor m highly sk illed 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 hi s deficiencies of concentration, persistence, or p ace resulting in a failure to complete tasks in a timely manner.

A hyp othetical question must precisely describe a claimant' s impair ments so that the vocational expert may accurately assess whethe r 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 impairment s 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 e vidence that Newton suffers from deficiencies of concentration, persistence, or pace, or that these were no t 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, perfor m activities within a

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schedule, maintain regular attendance, be punctual within customar y tolerances, complete a normal work week, and perform at a consistent pace without an unreasonab le number and length of rest periods. Dr. McDonough found that Newton was markedly limited in his ability to carry out detaile d 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 th e deci sion that Newton "often" has deficiencies of concentration , persistence, or pace.

The vocational expert could not have been expected to remembe r Newton's deficiencies in these areas from the re cord alone. See Whitmore , 785 F.2d at 263-64. Since these deficiencies were not included in th e hypot hetical question, the expert did not base his opinion on the ful l extent of Newton's limitations and his testimony could not have constitute d 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 capabiliti es to simple jobs. She notes that Drs. Scott and McDonoug h concluded that Newton's concentration problems d id not significantly limit his abilities to follow short and simple instructions and make simple work

related decisions, and that Dr. Domingo determined Newton could maintain concentration for simple work.

Th e vocational expert stated on cross-examination, however, tha t Newton' s concentration and persistence problems related to basic wor k habits needed to maintain employment. A moderate deficiency in thes e areas, the expert testified, would cause problems on an ongoing dail y basis, "regardless of . . . what the job required from a physical or skil l standpoint." The exp ert'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 o n remand should include Newton's deficiencies of c oncentration, persistence,
or p ace so that the vocational expert might accurately determine hi s ability to work. C.

Newton co ntends that the ALJ erroneously discredited his complaints of uncontrollable alcoholism by failing properly to apply the standards se t forth in Polaski v. Heckler , 739 F.2d 1320 (8th Cir. 1984) (subsequen t history omitted). He asserts that the overwhelming evidence shows h e 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 di sability is encompassed by the Act. Starr v. Sullivan , 981 F.2d 1006, 1008 (8th Cir. 199 2) (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 i n relation to daily activities; the duration, frequency, and intensity of th e

### 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 a n uncontrolled or persistently significant influence on his work abilities bas ed in part on his past twenty years of work and the 1994 work at th e 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 substantia l gainful activity the ALJ found that Newton hadperformed was his few months of work in 1994 at the foundry. On remand, the ALJ may need to reexamine Newton's ability t o
con trol his alcohol usage depending upon its determination of the tria l work period issue.

III.

The ju dgment of the district court is reversed and the matter i s 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.