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, sought

review of a final decision of the Social Security Administration denying his applications

for social security disability benefits. The United States District Court for the Eastern

District of Arkansas granted summary judgment in favor of the Commissioner and

Smith appeals. Because Smith is entitled to benefits from December 15, 1992 to at

least November 15, 1994, we reverse and remand to the district court with directions
2

to remand to the Commissioner for a determination of whether Smith is entitled to

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 fall of 1990, but continued to work until he underwent surgery on December 15,

1992 to correct a herniated nucleus pulposus at L4-5 and L5-S1. Smith returned to

work on February 13, 1993, but had to quit after about nine weeks because of back

pain. Thereafter, he underwent additional back surgeries on January 18, 1994 and

July 25, 1994. His treating surgeon anticipated that he should be able to return to work

on November 15, 1994. The administrative law judge (ALJ) determined that Smith was

not entitled to disability benefits for the 1992-1994 period because he had returned to

work for the nine-week period previously identified. The Commissioner and the 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 an

unsuccessful work attempt and . . . earnings from that work will not show that [claimant

is] able to do substantial gainful activity.” In Andler v. Chater, 100 F.3d 1389, 1392

(8th Cir. 1996), we held that a “work effort that lasts less than three months can be

considered an unsuccessful work attempt when a claimant is unable to perform work

for more than 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 seems very clear that Smith was not able to continue his work because

of his back condition. This is demonstrated not only by his own testimony, but by the
We have repeatedly held that “[t]he opinion of a treating physician is entitled 1

to great weight ‘unless it is unsupported 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.2d 674, 676

(8th Cir. 1991).

"Sedentary Work” is defined as: 2

Exerting up to 10 pounds of force occasionally (Occasionally: activity or

condition exists up to 1/3 of the time) and/or a negligible amount of force

3

medical evidence in the record and the fact that he required a second and third surgery

after 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 after

November 15, 1994 is more difficult and, in our view, can only be answered after the

record is completed. A few things are clear. Smith cannot return to his past heavy

work. Thus, the ALJ correctly determined that the burden rests on the Commissioner

to 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. 

Smith’s treating physician reported on August 1, 1994 that Smith should not

engage in any strenuous activities and should avoid any job that requires excessive

lifting, repetitive lifting, bending, or straining. Of course, a sedentary job by 1 2
frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the

time) to lift, carry, push, pull, or otherwise move objects, including the

human body. Sedentary work involves sitting most of the time, but may

involve walking or standing for brief periods of time. Jobs are sedentary

if walking and standing are required only occasionally and all other

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 Commissioner to establish that 3

Smith is able to do sedentary work. Thus, if the Commissioner believes that further

treatment would make it possible for Smith to do so, then the Commissioner should

4

definition 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, in

which he stated, “I do not feel it reasonable for this patient to try to engage in work

activities as he has had so many problems with his back over the past couple of years.”

Admin. Rec. at 202, 203. Finally, 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 and

extension views and one also would need to consider a bone scan and

MRI or CT of the lumbar spine with and without IV contrast. I feel that

this patient also would ultimately need a lumbar myelogram and

EMG/NCV of the lower extremities. 

Admin. Rec. at 207.

On remand, the treating surgeon should be given an opportunity to clarify and

expand on his reports and should be authorized by the Commissioner to undertake the

diagnostic procedures suggested in his January 30, 1996 report. Additionally, a 3
authorize the procedures to be undertaken. 20 C.F.R. § 404.1519m provides as

follows:

However, we will not order diagnostic tests or procedures that involve

significant risk to you, such as myelograms, arteriograms, or cardiac

catheterizations for the evaluation of disability under the Social Security

program. Also, a State agency medical consultant must approve the

ordering of any diagnostic test or procedure when there is a chance it may

involve significant risk.

Id. We note that one of the diagnostic tests suggested by the physician is a lumbar

myelogram. Smith would have to give his consent to this procedure before he can be

required to submit to it.

5

vocational expert should 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 this court, determine whether Smith, a relatively

young man, can perform sedentary work or the extent to which his disability for all

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.