United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 98-1440
Nancy S. Whitehurse, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Kenneth S. Apfel, Commissioner of * Social Security, * * Appellee. *

Submitted: September 25, 1998 Filed: October 21, 1998
Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.
HEANEY, Circuit Judge. Nancy S. Whitehurse, a 36-year-old woman with an eleventh-grade educatio n and no r elevant work experience, appeals the district court’s grant of summar y judgme nt affirming the Commissioner’s decision to deny Whitehurse supplementa l security income benefits based on disability.
Whi tehurse’s claim is based on degenerative changes in her right ankle, which she c ontends makes it impossible for her to do any work, sedentary or otherwise. At“The opinion of a treating physician is entitled to great weight ‘unless it i s 1 unsupported by medically acceptable clinical or diagnostic data.’” Ghant v. Bowen , 930 F.3d 633, 639 (8th Cir. 1991) (quoting Kirby v. Sullivan , 923 F.2 d 1323, 1328 (8th Cir. 1991)). 2 her administrative hearing, Whitehurse testified that she must elevate her foot two or three times daily for a total of approximately two hours per da y. Whitehurse’s treating physician sta

ted in his interrogatory that her ankle swelling causes daily pain and that elevation is required every morning and afternoon to relieve the pain. The treatin g 1 physician, however, did not specify the leng th of time necessary for effective elevation of her foot nor d id he address whether, and to what extent, Whitehurse is disabled as
a resu lt of her limitations. The administrative law judge (ALJ) determined tha t Whitehurse was not disab led, finding that the evidence did not present any persuasive basis from which to conclude that she could not elevate her foot during work break s and after work in the evening.
The ALJ correctly conceded that the Commissioner bears the burden o f
es tablishing that Whitehurse can perform sedentary work despite her disability. Se e Douglas v. S chweiker , 734 F.2d 399, 400 (8th Cir. 1984). However, the ALJ’ s conclusion that Whitehurse is no t disabled is not supported by substantial evidence on the record. This is because the record is not sufficiently developed as to the issue of whether elevating Whitehurse’s foot during work breaks would be sufficient to alleviate her pa in and make it possible for her to do a full day’s work in the competitiv e economy. Se e McCoy v. Schweiker , 683 F.2d 1138, 1146-47 (8th Cir. 1982) (e n banc) (Commissioner must prove by subst antial evidence that Whitehurse can perform work in the sometimes competitive and stressful conditions in which pe ople work in the real world).

It see ms clear that employees do not generally get two hours of break tim e during the work day, and no federal or state law requires an employer to give3

em ployees any break time. See Eback v. Chater , 94 F.3d 410, 412 (8th Cir. 1996)

. The ALJ failed to develop testimony that sedentary work is available that woul d provide Whitehurse with work breaks, or that Whitehurse’ s pain could be alleviated by elevating the foot during the customary morning and a fternoon breaks that are given by most employers. Thus, it is essential to develop the record fully with respect to both of these issues.
The record in this case reveals another problem. Two physicians, Dr. Jon C

. Gehrke and Dr. Jeffrey O. Anglen, recommended that Whitehurse have a surgica l proc edure to stabilize the right ankle. The ALJ discusses this evidence only as proof that Whitehurse’s complaints of incapacitating pain are not credib le. Upon completion of the full record, however, the ALJ may find that this elevation is insufficient t o alleviate the pain. In such case, the ALJ will have to consider requiring Whitehurse to consent to the surgical procedure suggested by these two physicians. With regard to requiring the recommended surgical procedure, we note that Dr. Anglen described the risks of the surgery as “infection, n erve or blood vessel or tendon damage, nonunion, malunion, compartment syndrome, deep venous thrombosis an d others, ” as well as “some risk that this would exacerbate the degenerative changes in the rest of her foot.” (Ad min. R. at 140). In order to receive benefits, a claimant must follow the treatment prescribed by her physician if th is treatment can restore her ability to work. See 20 C.F.R. § 404.1530 (1998). The regulations list the followin g pertinent examples of an acceptable reason for failure to follow prescribed treatment: “The treatment because of its magnitude (e. g. open heart surgery), unusual nature (e.g. organ transplant), or other reason is very risky for you.” 20 C.F.R. §404.1530(c)(4 ) (1998). On remand, the ALJ will need to consider carefully whether Mrs. Whitehurse should be required to undergo the surgery in light of the risks des cribed by Dr. Anglen.4 Conclusion

For the reasons stated above, we remand this matter to the district court wit h dire ctions to remand to the Commissioner to take additional evidence as to whethe r Whitehurse would be able to work if permitted to elevate her foot during customar y shor t work breaks, or in the alternative, whether the surgery suggested by th e physicians would alleviate the necessity of elevating the foot during the day.

A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.