## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1368

___________ Wayne T. Baker, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Kenneth S. Apfel, Commissioner of * Social Security Administration, * * Appellee. *

___________ Submitted: September 21, 1998 Filed: November 10, 1998

___________ Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ BEAM, Circuit Judge. Wayne Baker appeals the ru ling of the district court affirming an administrative law judge's denial of social securit y disability benefits. Because the administrative law judge (ALJ) failed to consider Baker's inability to work on a f ull-time basis, there is not substantial evidence to support the ALJ's decision. Accordingly, we reverse.At the hearing, Bak er testified that the frequency of the migraines varied from 1 two per week to two per month. The record shows over 25 injections wer e administered in the emergency room between May 1993 and January 1994, and over thirty were administered by his doctor during the same period. -2- I. BACKGROUND

Baker , who was forty-nine years old at the time of the hearing in Novembe r 19 94, spent most of his life working in unskilled or semi-skilled positions requirin g physical labor. He was employed as a survey crew supervisor, poultry grower , production worker, and equipment installer. He suffers from ar thritis in his knees, right hip, and right shoulder, and chronic back pain. The record contains no evidence of a limi ted range of motion, but shows that his joint and back pain results in the need t o alternat e between sitting and standing, as well as limits his ability to stoop, lift, an d carry. His other impairments include muscle tension headaches, migraine headaches, and de pression. Baker began experiencing headaches in 1991, and both the intensity and f requency of the headaches increased over time. His personal physician referred him to a headache clinic where he was given anti-depressants and taught relaxatio n techniques to help minimize the tension headaches. The m igraine headaches, however, continued unabated. These headaches are often accompanied b y nausea and sensitivity to ligh t. The only effective pain medication for the migraines is an injection o f Demerol, a narcotic pain drug similar to morphine. The record shows that Bake r requires t hese injections, given by his physician or by the local emergency room, two
an d sometimes three times per week. In addition, he takes various medications fo r 1 depres sion and non-migraine pain. These include Vicodin, Lorcet Plus, Flexeril , Vistaril, Prozac, and Sinequan.

On August 23, 1993, Baker stopped working as a production worker at a food processing plant because of his impairments. He claims that the pain and the effects of his medications prevent him from performing any type of work. Although he has not worked since that time, he has attend ed college full-time at Arkansas Tech University,-3-

study ing psychology and rehabilitation science. He attends class for four hours o n Mon day, Wednesday, and Friday, and for approximately two hours on Tuesdays and Thur sdays. Baker receives accommodations at school. He is allowed to alternat e be tween sitting and standing during class and is allowed to make up for classes an d
exams missed due to his pain and to medication. Baker testified that between th e beginning of the semester and the hearing on November 18, he missed six to seven days due to his headaches. He maintains a 3.1 average in his classes.

At the h earing, Baker testified that he experiences significant pain from th e headaches as well as pain in his knees, hip, and shoulder, and that this pain prevents him from wo rking. He also testified that the constant pain and the effects of hi s medications inhibit his ability to concentrate and focus on a task.

The ALJ found that Baker suffered from severe hea daches, and pain in his neck, back, knee s, shoulders, hip, and arm, but found Baker's assertions of disabling pai n were n ot credible. Particularly, the ALJ relied on the fact that, with the help o f medicati on, Baker was able to attend school on a full-time basis and maintain a 3. 1 average, as well as engage in various domestic and social activities. These facts, the ALJ concluded, are inconsistent with pain so disabling as to interfere with concentration, focus, and light work activities. The ALJ also found that Baker could return to his previous work as a surveyor, or in the alternative, that there exist a significant number of jobs in the national and local economies that B aker could perform given his impairments. Thus, the ALJ determined that Baker was not disabled under the Social Security Act.
Baker sought review of the ALJ's opinion by the Ap peals Council and submitted additional evidence, including a Medical Source Statement from his personal physician. The Appeals Council affirmed, as did the district court. Baker appeals.

II. DISCUSSIONThe ALJ made no express finding that Baker's impairments are severe, however, 2 we must assume this to be the case as the ALJ continued through all five sequentia l steps. -4- To receive disability benefits, Baker must establish a physical impairment lasting at least one year that prevents him from engaging in any gainful activity. See Ingram v. Chat er , 107 F.3d 598, 601 (8th Cir. 1997). To determine disability, the Commissione r uses the familiar five-step sequential evaluation, he determines: (1) whether the claimant is presentl y engaged in a "substantial gainful activity;" (2) whether the claimant has a se vere impairment–one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets 2
or equals a presumptively disabling impairment listed in the regulations (if so, th e claimant is disabled without regard to age, education, and wor k experience); (4) whether the claimant has the residual functional capacity to perf orm his or her past relevant work; and (5) if t he claimant cannot perform the past work, the burden shifts to th e Commissioner to prove that there are other jobs in the national ec onomy that the claimant
can perform. Se e Kelley v. Callahan , 133 F.3d 583, 587-88 (8th Cir. 1998).

Once the claimant's impairments and physical capabilities are established, th e Commi ssioner's burden is to demonstrate that the claimant can perform his or her pas t relevan t work, or in the alternative, that jobs are available in the national economy , realistically suited to the claimant's residual functional capabilities

. See Talbott v. Bowen , 821 F.2d 511, 514-15 (8th Cir. 1987). In determining the availability of such jobs, the claimant's exertional and nonexertional impairments, together with his age, education, and previous work experience, must be considered. See Fenton v. Apfel , 149 F.3d 907, 910 ( 8 th Cir. 1998). The Commissioner may produce evidence of suitable jobs by eliciting testimony by a vocational expert concerning availability of jobs which a person with the clai mant's particular residual functional capacity can perform. Id. This is generall y accomplishedby posing hypothetical questions to a vocational expert. The question s must fairly reflect the abilities and impairments of the-5-

claimant as evidenced in the record. See Mors e v. Shalala, 32 F.3d 1228, 1230 (8th Cir. 1994). If a hypothetical question does not include all of the claimant's impairments , limitatio ns, and restrictions, or is otherwise inadequate, a vocational expert's respons e cannot constitute substantial evidence to support a conclusion of no disability. Se e Greene v. Sullivan , 923 F.2d 99, 101 (8th Cir. 1991).
The expert was asked if there w ere jobs in the economy for a forty-eight-year-old male w ith a high school education, who was semi-skilled in surveying, and was limited to light work. Th e worker was to be on his feet six to eight hours a day and was limited to lifti ng no more than twenty pounds. The expert responded that there were over a thous and suitable jobs in the area for such a hypothetical worker. The question wa s furth er refined to reflect a worker capable of only sedentary work, and who needed t o alternate between sitting and standing at will. The expert responded that there would still be a significant number of jobs in the area for such a worker.

The AL J found that Baker could return to his past relevant employment as a surveyor. B ased on the vocational expert's testimony, the ALJ also found, in th e alterna tive, that there were a significant number of jobs in the area for a worker with Baker’s residual functional capacity.

Our stan dard of review is a narrow one. We will affirm the ALJ's findings i f sup ported by substantial evidence on the record as a whole. See Matthews v. Bowen , 879 F.2d 422, 423 (8th Cir. 1989). Substantial evidence is l ess than a preponderance, but
eno ugh that a reasonable mind might accept it as adequate to support a decision. Se e Lawr ence v. Chater , 107 F.3d 674, 676 (8th Cir. 1997). However, the review w e undertake is more than an examination of the record for the existence of substantia l evidence in support of the C ommissioner's decision, we also take into account whatever in the record fairly detracts from that d ecision. See Cline v. Sullivan , 939 F.2d 560, 564 (8th Cir. 1991).-6-

The first issue we must address is the ALJ's determination that Baker's assertion of disablin g pain was not credible. When assessing the credibility of a claimant' s subjective allegations of pain, however, the ALJ must consider the claimant's prior work history; da

ily activities; duration, frequency and intensity of pain; dosage, effectiveness and si de effects of medication; precipitating and aggravating factors; and functiona l
re strictions. See Polaski v. Heckler , 739 F.2d 1320, 1322 (8th Cir. 1984). Whe n rejec ting a claimant's complaints of pain, the ALJ must make an express credibilit y determination, must detail reasons for discrediting the testimony, must set forth th e inconsiste ncies, and must discuss the Polaski factors. See Cline , 939 F.2d at 565. After considering all the fact ors, the ALJ concluded that Baker’s pain was not disabling. The inconsistencies the ALJ relied on to disbelieve Baker included Baker's ability to maintain a 3.1 average as a full-time college student, attend AA meetings, drive, cook meals, and visit friend s and relatives. “[T]he claimant has demonstrated that he has the ability t o perform a level of physical activity which is consistent with the capacity to perform a full range of light act

ivity. Accordingly, his allegations of severe and disabling pain . . . are not credible.”
Based on all the medical evidence, there is no doubt that Baker experiences pain. The question here is whether the pai n, in and of itself, is so severe as to be disabling. In sum, the ALJ concluded that there were few complaints of arthritic pain in the medical record, and the arthritic and headache pain Baker did have was successfully controlled by medication. "The fact that the claimant is able to attend classes for up to four hours
a day, pr epare meals for an hour, assist with the housework, work on his automobile , grocery shop and visi t with friends on a routine basis, clearly indicates that he is able to perform a fu ll range of light activity." Although there is considerable evidence to th e contra ry, reasonable minds may differ on these points. Thus we must find that there i s subs tantial evidence for the ALJ's conclusion that Baker does not suffer disabling pain. However, the fact that the claimant's pain is not so severe as to be disabling does no t necessarily mean that it places no limits or restrictions on his ability to work.In fairness to the ALJ, it should be noted that Dr. Russell's Medical Sourc e 3 Statement was not in evidence before the ALJ, but was properly presented to, an d considered b y, the Appeals Council. Since our review encompasses the record as a whole, whether the error was by the ALJ or the Appeals Council, the conclusion is the same, there is not substantial evidence to support the ALJ's conclusion. -7- There is no substantial evidence to support the ALJ’s conclusion that Baker can return to his position as a surveyor. That position requires the worker to be on his feet virtually all day, and to carry and set up equipment. The medical evidence shows arthritis in Baker's knees and hip. This is reflected also in the fact that he is allowed to, and often does, alternate between sitting and standing while in class at the university. There is no contrary evidence to suggest that Baker can spend an entire work day on h is feet. Further, the Medical Source Statement completed by Dr. Russell, Baker's personal physician , expressly lim its Baker to standing continuously for one hour, with a total of only tw o hours standing. Therefore, there is not substantial evide nce to support the conclusion that Baker could return to his previous job as a surveyor. 3

Since we find that Bak

er has shown that he cannot return to his previous relevant work, the burden is on the Commissioner to show that he is capable of performing jobs that exist in significant numbers in the economy. See Talbott , 821 F.2d at 514. We find that the hypothetical questions posed to the vocational expert were inadequate and did not fairly reflect the claimant’s impairments and capabilities. As a result, th e Commissioner has failed to carr y his burden to show that Baker is qualified for any jobs that exist i n significant numbers in the economy. See Greene , 923 F.2d at 101. Th e hypothetical questions fell short in two res pects. First, there was no consideration of the limited time Baker is able to work. Baker testified that he often had to take breaks while studying at home due to the pain in his joints and his medications which make it difficult for him to concentrate for long periods. He also testified that after class he often needs to lie down for several hours due to pain in his joints and fatigue, before e ngaging in other activities. The most direct evidence ho wever, is the Medical Source Statement from Dr. Russell, which expressly limits Baker's work. Baker can stand-8-

continuously for one hour, w ith a total of two hours, and he can sit continuously for two hours, with a total of four.

Gen erally, a treating physician's opinion is entitled to substantial weight as lon g as it is supported by medically acceptable clinical or diagnostic data. See Kelley , 13 3 F.3d at 589. Dr. Russell has treated Baker since 1991. His conclusion is supported by Dr. Jones, who examined Baker in February of 199 4 at the request of the Commissioner, and diagnosed Baker as suffering from degenerative osteoarthritis in both knees and nons p ecific arthritis affecting his neck, right hip and shoulder, and left arm. Again, there is no contrary evidence in the record. Even the evidence relied on by the ALJ to conclude that Baker is capable of performing light work casts doubt on, or fails to support, th e conclusion that Baker can perform in a full-time work environment. Baker attends class, with accommodations, for only four hour s a day, when he cooks, it is for only an hour at
a time. S imilarly, his AA meetings and visits with friends last for only a short time

. None of Baker's activities indicate Baker is able to work a full shift, and his treatin g physician expressly limited his work to a maximum of six hours.
While the hypothetical questions posed to the vocational expert did reflec t the need for a worker to alternate between sitting and standing, they did not reflect a worker who is limited to working for a total of only six hours at a time. In order for the Commissioner to meet his burden to present significant evidence that jobs exist in the economy fo r which Baker is qualif

ied, the evidence must show that there are part-time jobs available for workers with his impairments and limitations. See Martin v. Harris , 666 F.2d 1153, 1155 (8th Cir. 1981) (medical evid ence indicated claimant could sit and stand for a total of five hours a day and Secretary did not me et his burden by showing availability of fulltime jobs within the claimant's skill set).

The second res pect in which the hypothetical questions were inadequate is in the ALJ's failure to take into account the uncontroverted fact that Baker will be absent from the workplace an inordinate amount of time due to his migraine headaches. Dr.-9-

Russell, in a brief summary of Baker's condition, stated, "Were I an employer, I would certainly be hesitant to hire somebody with Mr. Baker's medical background because I feel that he would miss a great deal of work and I suspect that Mr. Baker probably is not very employable beca

use of that." At oral argument, Baker urged this court to consider this as evidence that Bak

er cannot gain employment, and is therefore disabled. We will not give weight to a physician's speculation regarding employers' hiring decisions

. However, the statement does contain one assertion that must be given weight, that Baker would "miss a great deal of work." This is a m edical opinion by a treating physician and is entitled to substantial weight, especially when supported by acceptable clinical data. This sta tement is consistent with an earlier report in which Dr. Russell stated one o f Baker's work-related l imitations would be that he would "miss work due to headaches." Both these opinions are amply supported bypage after page of medical records detailing Baker's injections of Demerol, after which he must be driven home by someone else due to the effects of the drug.

Baker testified that "I can only stand [a migraine] as long as I can stand it then I have to go get a shot." Between Dr. Russell and the emergency room, the recor d indicates that Baker received close to 60 injections between May 1993 and January 1994. The ALJ failed to consider the plain fact that if a person is in the doctor's office or a n emergency room rece iving injections of Demerol, he is not at the workplace and cannot immediately return to the workplace. Even with the short class schedule of four hours
on three da ys and two hours on others, Baker missed six or seven days between th e beginning of the semester and the hearing on November 18. Extended over a year' s duration, this equals between 26 and 30 days missed bec ause of headaches, and could be expected to be higher when applied to a long er and less flexible work schedule. Because this excessiv e absenteeism is caused by Baker's impairment, Baker is entitled to have it considered by the vocational expert. See Douglas v. Bowen , 836 F.2d 392, 396 (8th Cir. 1987).

III. CONCLUSION-10-

There is not s ubstantial evidence in the record as a whole to support the decision of the ALJ. Accordingly, the judgment is reversed and this case is remanded to th e distric t court with directions to remand it to the Commissioner for further proceeding s consistent with this opinion.
A true copy.

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