John J. Callahan was appointed to serve as Acting Commissioner of Social

1

Security effective March 1, 1997. Therefore, the court has substituted John J. Callahan

for Shirley S. Chater pursuant to Fed. R. App. P. 43(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 96-2578

 

Nick G. Detrick, *

*

Appellant, *

* Appeal from the United

States

v. * District Court for the

* Northern District of Iowa.

John J. Callahan, Acting *

1

Commissioner of Social *

Security, *

*

Appellee. *

 

Submitted: February 10, 1997

 Filed: May 29, 1997

 

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

 

HEANEY, Circuit Judge.

On January 30, 1986, Nick G. Detrick applied for both

social security disability benefits and supplemental

security income (SSI). He alleged disability beginning

in 
In contrast, substantial evidence on the record as a whole does not support the 2

Secretary’s view that Detrick’s post-1986 earnings precluded him from receiving SSI

benefits. He continued to live with his parents on their six-acre farm, and they provided

him with room and board, gave him spending money, and occasionally paid him for

work that he did around the farm. Although accepting food and shelter in another’s

household without contributing to expenses can trigger a one-third reduction in the level

of benefits, it is not a basis for denying SSI benefits. See 42 U.S.C. § 1382(a)(2)(A)

(defining unearned income); 20 C.F.R. § 416.1131(a) (one-third reduction rule).

Detrick also had some income from the sale of a few calves or cows that he raised.

The record does not reveal his net income from these sales. Thus, under 20 C.F.R. §

2

November 1985 due to inflammation and infection of the

left knee and recurrent episodes of a collapsed right

lung. After long and tortuous administrative and court

proceedings, Detrick was denied all but interim

disability benefits, which were paid pursuant to district

court order from January 1993 through May 14, 1996.

In this appeal from the most recent ruling of the

Secretary, Detrick raises a number of procedural issues,

none of which have merit in our judgment. He also claims

that substantial evidence on the record as a whole does

not support the Secretary’s denial of either disability

or SSI.

Detrick must prove that he was eligible for

disability benefits before December 31, 1986 because his

insured status expired on that date. In contrast, he is

still eligible for SSI benefits if he was disabled after

that date. We hold that there is substantial evidence on

the record as a whole to support the finding of the

Administrative Law Judge (ALJ) that Detrick was not

disabled during this period because of the extent of his

earnings before December 31, 1986. Therefore, we affirm 2
416.75(c), the gross income from these sales cannot be considered substantial income

and serve to disqualify Detrick from receiving SSI benefits. 

3

the decision that Detrick is not eligible for disability

benefits.
4

The more difficult question is whether substantial

evidence on the record as a whole supports the ALJ’s

decision that Detrick did not qualify for SSI after

December 31, 1986. The ALJ found that although Detrick

could no longer perform his work as a farm laborer, he

could do certain light work if he were not exposed to

dust, fumes, gas, or vapors and if he could keep his left

leg extended or place it on a stool. Based on the

testimony of a vocational expert, the ALJ found that

Detrick could work as a ticket seller, cashier,

information clerk, assembler, or addresser. The

Secretary must prove by substantial evidence that Detrick

can perform any work on a sustained basis “in the

sometimes competitive and stressful conditions in which

people work in the real world.” McCoy v. Schweiker, 683

F.2d 1138, 1147 (8th Cir. 1982). For the reasons stated

below, we do not believe that the Secretary has sustained

this burden.

In our view, the record does not support the

vocational expert’s opinion that Detrick has the

intellectual capacity to perform most of the suggested

jobs in a competitive market. The expert’s opinion was

based on the faulty assumption that Detrick had a

twelfth-grade education. In fact, Detrick missed the

seventh and eighth grades because of his disabilities.

His teachers and his mother decided that it would be best

for Detrick to move him to high school despite his lack

of academic readiness. Detrick testified without

contradiction that he can read a newspaper; he does not

read books; he can write, but not well; he does not do

his own taxes; and his mother helps him with his social

security forms. It is a stretch of the imagination to
For example, ticket sellers, information clerks, and addressers must possess the 3

following language skills:

Reading:

Read a variety of novels, magazines, atlases, and encyclopedias.

Read safety rules, instructions in the use and maintenance of shop

tools and equipment, and methods and procedures in mechanical

drawing and layout work.

Writing:

Write reports and essays with proper format, punctuation, spelling,

and grammar, using all parts of speech.

Speaking:

Speak before an audience with poise, voice control, and

confidence, using correct English and well-modulated voice.

U.S. Dep’t of Labor, Dictionary of Occupational Titles (“DOT”), vol. 11, app. C at

1011 (4th ed. 1991); see also DOT § 211.467-030 (ticket seller); DOT § 237.367-022

(information clerk); DOT § 209.587-010 (addresser).

5

believe that he could perform all the duties of the

listed jobs on a day-to-day basis with his limited

educational background. Without question, Detrick does

not have the language development skills required to

perform three of the four suggested jobs. Although 3
6

some doctors and therapists have opined that if Detrick

were given the necessary educational training he might be

able to perform white-collar work, none has been offered

or provided. Thus, we cannot say there is substantial

evidence on the record as a whole that Detrick has the

intellectual capacity to perform substantially all of the

listed work. 

Although there is support in the record that Detrick

has the intellectual capacity to work at least as an

assembler, his physical limitations would prevent him

from performing that type of work and most of the other

suggested jobs as well. In response to a carefullycrafted hypothetical, the vocational expert said Detrick

could work assuming: (1) he could extend his leg or use

a stool while working, (2) his concentration would not be

limited by pain or sleeplessness, and (3) he would be

able to lie down for one hour during the work period.

Even if an employer would be willing to accommodate

Detrick by permitting him to use a stool at work, two

formidable conditions remain that limit his ability to

sustain employment in a competitive setting: the pain

and sleeplessness that he endures and the requirement

that he rest for one hour during the work day.
7

Detrick and his mother testified under oath that

Detrick has pain in his left leg on a daily basis and

that he lies down twice a day for about one hour because

of the pain. His frequent knee infections sometimes

require hospitalizations for months at a time, as was the

case most recently in 1994. He has been diagnosed with

osteoarthritis, and physicians have prescribed medication

for both pain and to relieve his knee infections. The

record is replete with evidence that Detrick has

complained of pain to his physicians ever since a

cancerous tumor was discovered and removed from his left

knee. (See Jt. App. at 282-86, 303, 308, 313, 322, 326,

337, 339, 460, 474, and 837.) In 1993, an orthopedic

specialist examined Detrick and reported:

Mr. Detrick’s physical condition will continue

to deteriorate as life goes on. Specifically,

he will have an increasing problem with pain in

his left knee with resultant change in his gait

which will affect his entire back. He also has

an intolerance for anti-inflammatory medicines.

He is currently young and able to put up with

pain and is trying hard to work with his

disability . . . . He doesn’t have the stamina

that a normal person would have.

. . . .

[T]his young man has a very unfortunate medical

history with permanent, extensive damage to his

left leg . . . [which] is essentially

nonfunctional. This will have dire consequences

in the future, particularly with accelerated

arthritis in the left lower extremity. Also,

because his left leg is shorter than the

right[,] this will accelerate the degenerative

process of his back so he will develop back pain

that will tend to get worse with time.
8

(Jt. App. at 838.) Detrick’s physical limitations make

him unable to competitively perform the jobs to which the

ALJ determined Detrick was suited.

In summary, the record does not support the view that

Detrick has had earnings since January 1, 1986 sufficient

to disqualify him for SSI benefits; his intellectual 
9

capacity renders him unable to perform the duties of a

ticket seller, an addresser, or an information clerk.

Finally, his physical limitations make it impossible for

him to perform the work as an assembler or in most of the

other suggested jobs. We remand to the district court

with directions to remand to the Secretary to award SSI

benefits to Detrick from January 1, 1986 to the present,

excluding the period during which he received interim

benefits, in an amount to be determined by the Secretary

pursuant to the applicable regulations. 

A true copy.

Attest.

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