## United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 98-1277

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

Submitted: September 21, 1998 Filed: September 28, 1998
Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Kenneth A. Smith, a 40-year-old male with a tenth-grade education, sough t review of a final decision of the Social Security Administration denyi ng his applications for social security disabilit

y benefits. The United States District Court for the Eastern Distr ict of Arkansas granted summary judgment in favor of the Commissioner an d Smith appeals. Because Smith is entitled to benefits from December 15, 1992 to a t least November 15, 1994, we reverse and remand to the district court with directions2

to remand to the Commissioner for a determination of whether Smith is entitled t o disability benefits beyond November 15, 1994, and if so, for how long.

I. The Period December 15, 1992 to November 15, 1994
Everyone agrees that Smith worked as either a farm laborer or factory worker most of his life and that he can no longer perform this work. Smith injured his back in the fa ll of 1990, but continued to work until he underwent surgery on December 15 , 1992 to c orrect a herniated nucleus pulposus at L4-5 and L5-S1. Smith returned t o wor k on February 13, 1993, but had to quit after about nine weeks because of bac k pain. Thereafter, he underwent additional back surgeries on January 18, 1994 an d July 25, 1994. His treating surgeon anticipated that he shoul d be able to return to work on November 15, 1994. The administrative law judge (ALJ) determined that Sm ith was not entitled to d isability benefits for the 1992-1994 period because he had returned to work for the nine-week period previously identified. The Commissioner and t he district court ultimately approved the decision. We hold that it was error to do so.

20 C.F. R. § 404.1574(a)(1) provides that in determining whether an individual is able to engage in substantial gainful activity, the agency will generally consider work that a claimant is “forced to stop after a short time because of [an] impairment as a n unsuccessful work attempt and . . . earnings from that work will not show t hat [claimant is] able to do substantial gainful activity.” In Andler v. Chater , 100 F.3d 1389, 1392 (8th Ci r. 1996), we held that a “work effort that lasts less than three months can b e considered an unsuccessful work attempt when a claimant is unable to perform work for more th an a short time, and must quit due to an impairment.” See also King v

. Chater , 72 F.3d 85, 86 (8th Cir. 1995); Sample v. Shalala , 999 F.2d 1138, 1142 (7th Cir. 1993).
Here, it see ms very clear that Smith was not able to continue his work because of his back condition. Th is is demonstrated not only by his own testimony, but by theWe have repeatedly held that “[t]he opinion of a treating physician is entitled 1 to great weight ‘unless it is unsup ported by medically acceptable clinical or diagnostic data.’” Ghant v. Bowen , 930 F.2d 633, 639 (8th Cir. 1991) (quoting Kirby v. Sullivan , 923 F.2d 1323, 1328 (8th Cir. 1991)); see also Fleshman v. Sullivan , 933 F.2 d 674, 676 (8th Cir. 1991). "Sedentary Work” is defined as: 2 Exerting up to 10 pounds of force occa sionally (Occasionally: activity or condition exists up to 1/3 of the ti me) and/or a negligible amount of force
3 medical evidence in the record and the fact that he required a second and third surgery afte r his unsuccessful work attempt. Therefore, we conclude that Smith is entitled to disability benefits for the stated period.

II. The Period after November 15, 1994

The question of whether Smith is entitled to disability benefits afte r November 15, 1994 is more difficult and, in our view, can only be answered after the record is c ompleted. A few things are clear. Smith cannot return to his past heav y work. Thus, the A LJ correctly determined that the burden rests on the Commissioner t o determine whether there is sedentary work in the national economy that Smith can perform. See Douglas v. Schweiker , 734 F.2d 399, 400 (8th Cir. 1984); McCoy v

. Schweiker , 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc). As we have repeatedly stated, the Commissioner must prove by substantial evidence that Smith can perform any work on a sustained basis “in the sometimes competitive and stressful conditions in which people work in the real world.” McCoy , 683 F.2d at 1147. What is not so clear is whether Smith can, in fact, perform sedentary work on this basis.

Smi th’s treating physician reported on August 1, 1994 that Smith should no t engage in a ny strenuous activities and should avoid any job that requires excessiv e lifting, repetitive lifting, bending, or straining. Of course, a sedentary job by 1 2frequently (Frequently: a ctivity or condition exists from 1/3 to 2/3 of the

ti me) to lift, carry, push, pull, or otherwise move objects, including th e human bo dy. Sedentary work involves sitting most of the time, but may involve walking or stand

ing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all othe r sedentary criteria are met. 2 Dictionary of Occupational Titles 1013 (rev. 4th ed. 1991). In this case, as noted above, the burden is on the Commiss ioner to establish that 3 Smith is able to do sedentary work. Thus, if the Commissioner believes that furthe r trea tment would make it possible for Smith to do so, then the Commissioner shoul d
4 def inition does not require excessive lifting, but it may require repetitive lifting , bending, or straining.

Smith’ s treating physician provided another report on October 26, 1994, i n which he stat ed, “I do not feel it reasonable for this patient to try to engage in wor k activities as he has had so many problems with his back over the past couple of years.” Admin. Rec. at 202, 203. Fi nally, on January 30, 1996, the treating surgeon reported:

I talked at length with the patient and his wife and reviewed the various options. If you wish for me to try to help him get better, he would need a new work up which would include spine films with flexion an d extens ion views and one also would need to consider a bone scan an d MRI or CT of

the lumbar spine with and without IV contrast. I feel that this pa tient also would ultimately need a lumbar myelogram an d EMG/NCV of the lower extremities.
Admin. Rec. at 207.

On remand, the treating surgeon should be given an opportunity to clarify an d expand on his reports and sh ould be authorized by the Commissioner to undertake the diagnostic procedures suggested in his January 30, 1996 report. Additionally, a 3author ize the procedures to be undertaken. 20 C.F.R. § 404.1519m provides a s

follows: However, we will not order diagnostic tests or procedures that involv e signif icant risk to you, such as myelograms, arteriograms, or cardia c catheteriz ations for the evaluation of disability under the Social Security prog ram. Also, a State agency medical consultant must approve th e ordering of any diagnostic test or procedure when the re is a chance it may involve significant risk.
Id. We note t hat one of the diagnostic tests suggested by the physician is a lumba r myelogram. Smith would have to give his consent to this procedure before he can be required to submit to it.
5 vocational expert shoul d be called to give testimony as to whether there are sedentary jobs in the national economy that Smith can perform in light of the medical limitations more completely described by the treating surgeon. We also suggest that Smith agree to the procedures recommended by his surgeon. Only by having a completed record can the Commissioner, and ultimately thi s court, determine whether Smith, a relatively young man, can perform sedentary work or the extent to which his disability for al l work continued after November 15, 1994 and may be permanent.

III. Conclusion

For the foregoing reasons, we reverse the district court and remand for further action consistent with this opinion.
A true copy.

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