1

As a consequence of her severe anxiety, Eback eats her own

hair; in 1984, surgeons had to remove a large mass of hair and

undigested food particles which completely filled her stomach and

trailed into the first eight to ten inches of her small intestine.

 

No. 95-4185

 

Katherine A. Eback, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Shirley S. Chater, *

Commissioner of Social *

Security, *

*

 Appellee. *

 

Submitted: July 12, 1996

 Filed: August 15, 1996 

Before FAGG, LAY, and HEANEY, Circuit Judges. 

HEANEY, Circuit Judge.

Katherine Eback is a 30-year-old, Native American woman with

a husband and a small child who has never engaged in substantial,

gainful employment. She has a history of chronic asthma, chronic

anxiety,1 and eczema. Because of her asthma, she requires the use

of a nebulizer at least four times a day. She is a high school

graduate with fourth- to sixth-grade reading skills and second- to

third-grade math skills. The administrative law judge (ALJ) found

that she was severely impaired, but that she could perform

unskilled, sedentary to light work in packaging, assembly,
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labeling, and machine operations where environmental irritants were

not present. The Appeals Council declined to review the ALJ's

decision, rendering the Agency's decision final. Eback sought

review in the United States District Court. The court granted

summary judgment in favor of the Commissioner. Eback appeals. We

reverse and remand to the district court; we further instruct the

court to remand to the Commissioner with directions to award Eback

disability benefits pursuant to section 1614(a)(3)A of the Social

Security Act, as amended, effective September 15, 1992, the date on

which Eback filed her application.

DISCUSSION

We review the Social Security Administration's decision to

deny benefits by looking to see whether the decision is supported

by substantial evidence in the record as a whole. McMillian v.

Schweiker, 697 F.2d 215, 220 (8th Cir. 1983). Once a claimant has

been found disabled, the Commissioner has the burden of proving

that Eback can do light or sedentary work in the occupations

specified by the vocational expert. Dawson v. Bowen, 815 F.2d

1222, 1226 (8th Cir. 1987); Lewis v. Heckler, 808 F.2d 1293, 1297

(8th Cir. 1987). The record reveals that the Commissioner has not

satisfied this burden.

First, it is uncontested that Eback requires daily use of a

nebulizer usually once between 7:00 and 8:00 a.m., again between

2:00 and 3:00 p.m., and twice during the evening hours. (Admin.

Rec. at 86-88.) Such use would be necessary if she were to be able

to perform all the duties of the jobs listed by the ALJ "day in and

day out, 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). The vocational expert

testified that in answering the hypothetical he assumed that an

employer would allow the necessary nebulizer use on the job. "I'm

saying that would be a reasonable accommodation that an employer
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could or should make, particularly considering the ADA [Americans

With Disabilities Act]." (Admin. Rec. at 110.) The vocational

expert further testified that his opinion as to Eback's

employability would change if an employer were not willing to make

this accommodation. He stated:

Legally, with the ADA laws, an employer must make

reasonable accommodations for a person with a disability.

. . . [I]n my mind, . . . that would be a reasonable

accommodation to give them special times to use a

nebulizer to allow one to have that available for use

during the day on a reasonable basis.

(Admin. Rec. at 113.) 

This rationale is faulty for numerous reasons, the most

significant of which is that a determination of relevant jobs

existing in the national economy in significant numbers must be

based on an assumption that the employer would be willing to make

accommodations under the ADA. The Associate Commissioner of Social

Security issued a statement that the ADA and the disability

provisions of the Social Security Act have different purposes and

have no direct relationship to each other.

[The inquiry into other available jobs] is based on the

functional demands and duties of jobs as ordinarily

required by employers throughout the national economy,

and not on what may be isolated variations in job demands

(regardless of whether such variations are due to

compliance with anti-discrimination statutes or other

factors). Whether or how an employer might be willing

(or required) to alter job duties to suit the limitations

of a specific individual would not be relevant because

our assessment must be based on broad vocational patterns

. . . rather than on any individual employer's practices.

To support a . . . finding that an individual can perform

"other work," the evidence . . . would have to show that

a job, which is within the individual's capacity because

of employer modifications, is representative of a

significant number of other such jobs in the national

economy.
 2

The ALJ states that "the use of the nebulizer machine only

once during the day could be accomplished during regular breaks."

(Admin. Rec. at 56.) No federal or state law requires an employer

to give employees a break, nor does the ALJ provide any support for

his statement.

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(Appellant's App. at 50.) We further note that many of the jobs

cited by the ALJ are shift jobs; break periods, if any, might not

coincide with claimant's requirements for use of the nebulizer.

The vocational expert never testified that the cited jobs routinely

offer employees breaks during an eight-hour work period as would be

necessary for Eback's condition.2

Moreover, the ALJ's finding that Eback has the residual

functional capacity to work is also contradicted by her other

impairments. She requires frequent hospitalizations for

complications due to her severe asthma. She was hospitalized in

February, March, and August of 1989; in January 1990; in April and

September 1991; and in March 1992. (Admin. Rec. at 460.) In

addition, she had six outpatient visits to the hospital in 1993 for

acute exacerbation of her asthma. (Admin. Rec. at 460, 461.)

Eback has long-standing, severe, atopic eczema and suffers from

considerable chronic anxiety, giving her a limited capacity to

undergo any type of stress. (Admin. Rec. at 461.) She possesses

only fourth- to sixth- grade reading and second- to third-grade

math skills (Admin. Rec. at 51), and has a subaverage general

intellectual functioning capacity. (Admin. Rec. at 145.) While it

may be that none of Eback's disabilities meet the requirements of

a listed impairment, when considered in totality, they present a

clear picture of a person who cannot hold down any of the full-time

jobs noted by the ALJ. See Thomas v. Sullivan, 876 F.2d 666 (8th

Cir. 1989) (holding claimant disabled although no one of claimant's

complaints was individually disabling because "taken together, and

in conjunction with how they limit her daily activities, they add

up to an inability to do real work.").
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Finally, the ALJ found that Eback's current activities are

inconsistent with her testimony that she is unable to work. The

ALJ determined that the following activities indicate her ability

to work: taking care of her personal needs; sharing responsibility

with her husband for the care of her 19-month-old child; sharing

cooking and house cleaning responsibilities with her husband;

frequently driving to visit family members who live 1.5 miles away;

and attending bingo on a fairly consistent basis prior to 1993.

None of these activities, however, support the ALJ's conclusion

that Eback can do full-time work in the competitive local or

national economy. See Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.

1995) (claimant lived with her mother and cooked twice a day,

washed dishes, made beds, did laundry twice a week, cleaned house

twice a week, went shopping, and drove a car); Harris v. Secretary

of DHHS, 959 F.2d 723, 726 (8th Cir. 1992) (claimant shopped for

food, children's school supplies, and household items; drove a car

on occasion; did some cooking, ironing and laundry); and Thomas,

876 F.2d at 669 (holding claimant's ability to do light housework

with assistance, attend church, visit with friends on the phone

does not demonstrate claimant's ability to work).

We conclude that substantial evidence on the record as a whole

does not support the Secretary's determination that Eback is able

to perform unskilled, sedentary to light positions in packaging,

assembly, labeling, or machine operations where environmental

irritants are not present. Thus, we reverse and remand to the

district court with directions to remand to the Commissioner with

directions to award disability benefits pursuant to section

1614(a)(3)A of the Social Security Act, as amended, effective

September 15, 1992.

A true copy.

Attest:

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