Joh n

J. Callahan was appointed to serve as Acting Commissioner of Socia l 1 Security effective March 1, 1997. Therefore, the court has subs tituted 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 Unite d States
v. * District Court for the
* Northern D istrict 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 bot h social security disability benefits and supplementa l

secu rity income (SSI). He alleged disability beginnin g inIn contrast, sub stantial evidence on the record as a whole does not support the 2 Secretary’s vie w that Detrick’s post-1986 earnings precluded him from receiving SSI benefits. He continued to live with his parents on their six-acre farm, an d they provided him with room and board, gave him spending money, and occasionally paid him fo r 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 reductio n in the level of benefits, i t 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 re cord does not reveal his net income from these sales. Thus, under 20 C.F.R. §

2 Nove mber 1985 due to inflammation and infection of th e left kn ee and recurrent episodes of a collapsed righ t lung. After long and tortuous administrative and cour t proce edings, Detrick was denied all but interi m disability benefits, which were paid pursuant to district court order from January 1993 through May 14, 1996.

In t his appeal from the most recent ruling of th e Secretary, Detrick raises a number of procedural issues, none of which have merit in our judgment. He also claims that su bstantial evidence on the record as a whole doe s not support the Secretary’s denial of either disabilit y or SSI.

Detrick must prove that he was eligible fo r disability

benefits before December 31, 1986 because his insured st atus expired on that date. In contrast, he is still elig ible for SSI benefits if he was disabled after that date. We hold that there is substantial evidence on the r ecord as a whole to support the finding of th e Admi nistrative Law Judge (ALJ) that Detrick was no t disabled d uring this period because of the extent of his earnings before December 31, 1 986. Therefore, we affirm 2416.75(c), the gross inc ome from these sales cannot be considered substantial income

and serve to disqualify Detrick from receiving SSI benefits.

3 the decisi on that Detrick is not eligible for disability benefits.4

Th e more difficult question is whether substantia l evid ence on the record as a whole supports the ALJ’ s decis ion that Detrick did not qualify for SSI afte r Decembe r 31, 1986. The ALJ found that although Detric k could no longer perform his work as a farm laborer, h e could do certain light work if he were not exposed t o dust, fumes, gas, or vapors and if he could k eep his left le g extended or place it on a stool. Based on th e te stimony of a vocational expert, the ALJ found tha t Detr ick could work as a ticket seller, cashier , information clerk, assembler, or addresser. Th e Secretary must prove by substantial evidence that Detrick

can perform any work on a sustained basis “in th e sometimes competitive and stressful conditions in whic h people wor k 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 h as sustained this burden.

In o ur view, the record does not support th e vocational expert’s opinion that Detrick has th e inte llectual capacity to perform most of the suggeste d jobs in a competitive market. The expert’s opinion wa s bas ed on the faulty assumption that Detrick had a twel fth-grade education. In fact, Detrick missed th e
seve nth and eighth grades because of his disabilities

. His teachers and his mother decided that it w ould be best for D etrick to move him to high school despite his lac k of academic readiness. Detrick testified withou t contrad iction that he can read a newspaper; he does no t read books; he can write, but not well; he does not d o his o wn taxes; and his mother helps him with his socia l security forms. It is a stretch of the imagination t oFor example, ticket sell ers, information clerks, and addressers must possess the 3 following language skills: Reading: Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rule s, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanica l drawing and layout work. Writing: Write reports and essays with proper for mat, punctuation, spelling, and grammar, using all parts of speech. Speaking: Spe ak before an audience with poise, voice control, an d confidence, using correct English and well-modulated voice.

U.S. Dep’t of Labor, Dictionary of Occupational Titles (“ DOT ”), vol. 11, app. C a t 1011 (4th ed. 1991); see also DOT § 211.467-030 (ticket seller); DOT § 237.367-022 (information clerk); DOT § 209.587-010 (addresser).

5 bel ieve that he could perform all the duties of th e listed jobs on a day-to-day basis with his limite d educational background. Without question, Detrick doe s not have the language development skills required t o perform three of the four suggested jobs. Although 36

some doctors and therapists have opined that if Detric k were given the necessary educational training he might be able to pe rform white-collar work, none has been offered

or pro vided. Thus, we cannot say there is substantia l evidence on the record as a whole that Detrick has th e intellectual capacity to perform substantiall y all of the listed work.

Although there is su pport in the record that Detrick has the intellectual capacity to work at least as a n
assem bler, his physical limitations would prevent hi m from performing that type of work and most of the othe r sugg ested jobs as well. In response to a carefully

crafted hy pothetical, 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 b e able to lie down for one hour during the work period

. Even if an employer would be willing to accommodat e Detri ck by permitting him to use a stool at work, tw o form idable conditions remain that limit his ability t o sust ain employment in a competitive setting: the pai n and sleeplessness that he endures and the requiremen t that he rest for one hour during the work day.7

Detrick and his mother testified under oath tha t Detrick has pain in his left leg on a daily basis an d that he li es down twice a day for about one hour because of the pain. His frequent knee infections sometime s require hospitalizations for months at a time , as was the

case most recently in 1994. He has been diagnosed wit h osteoarthritis, and physicians have prescribe d medication for both pain and to relieve his knee infections. Th e
reco rd is replete with evidence that Detrick ha s
com plained 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 orthopedi c specialist examined Detrick and reported:

Mr. Detrick’s physical condition will continu e to de teriorate 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 wit h pa in and is trying hard to work with hi s 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 essentiall y nonfunctional. This will have dire consequences in the future, particularly with accelerate d arthr itis in the left lower extremity. Also , becau se his left leg is shorter than th e right[,] this will accelerate the degenerativ e 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 tha t Detrick has had earnings since January 1, 198 6 sufficient to disqualify him for SSI benefits; his intellectual9

capaci ty renders him unable to perform the duties of a tick et seller, an addresser, or an information clerk

. Finally, h is 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 cour t with di rections to remand to the Secretary to award SS I benefits t o Detrick from January 1, 1986 to the present, excl uding the period during which he received interi m 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

.