1The Honorable Jerry Cavaneau, United States Magistrate Judge for the Eastern

District of Arkansas, to whom the case was submitted by consent of the parties under

28 U.S.C. § 636(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2139

___________

Roger Pierce, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Kenneth S. Apfel, Commissioner, *

Social Security Administration, *

*

Appellee. *

___________

Submitted: December 16, 1998

Filed: April 20, 1999

___________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Roger Pierce appeals from the district court’s1 judgment affirming the denial

of his application for social security disability benefits under Title II of the Social

Security Act, 42 U.S.C. § 401 etseq. For reversal, Pierce argues that the hypothetical
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question posed to the vocational expert failed to accurately describe his mental

impairments. We affirm.

I.

Pierce, who was born on September 16, 1942, was 49 years of age when he

applied for benefits. He has a seventh-grade education. His past relevant work

history includes work as a farmer and as a packer of shock absorbers. Pierce filed an

application for disability insurance benefits on May 13, 1991, alleging a disability

onset date of July 15, 1989. He claimed that he was disabled because of stress,

anxiety, a nervous stomach, bodily aches, depression, and a right ankle metal plate

and screw.

The Social Security Administration denied Pierce’s application originally and

again on reconsideration. Pierce appealed, and the district court reversed and

remanded his case for further administrative proceedings. A supplemental hearing

was held before an Administrative Law Judge (ALJ) on October 2, 1995, and on May

30, 1996, Pierce’s application was again denied.

The ALJ evaluated Pierce’s claim according to the five-step analysis prescribed

by the Social Security Regulations. See 20 C.F.R. § 404.1520(a)-(f); see also Bowen

v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process). The ALJ

concluded that Pierce’s impairments did not meet or equal an impairment listed in

Appendix 1, Subpart P, Regulations No. 4. The ALJ also found that Pierce could not

return to his past relevant work as a farmer or packer. After considering the response

of a vocational expert to a hypothetical question, the ALJ found that Pierce was not

disabled.

The Appeals Council denied Pierce’s request for further review, and the ALJ’s

decision thereby became the final decision of the Commissioner. Pierce subsequently
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appealed to the district court pursuant to 42 U.S.C. § 405(g). The district court

granted the Commissioner’s motion for summary judgment, finding that substantial

evidence supported the Commissioner’s decision to deny Pierce disability benefits.

II.

Our role on review is to determine whether the Commissioner’s findings are

supported by substantial evidence in the record as a whole. See Clark v. Apfel, 141

F.3d 1253, 1255 (8th Cir. 1998). Substantial evidence is relevant evidence which a

reasonable mind would accept as adequate to support the Commissioner’s conclusion.

See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). In determining whether the

existing evidence is substantial, “we must consider evidence that detracts from the

[Commissioner’s] decision as well as evidence that supports it.” Id. We may not

reverse the Commissioner’s decision merely because substantial evidence exists in

the record that would have supported a contrary outcome. See Smith v. Shalala, 987

F.2d 1371, 1374 (8th Cir. 1993).

The ALJ found that Pierce retained the ability to occasionally lift and carry up

to 25 pounds; stand and walk for four hours in an eight-hour work period, one

without interruption; and sit for six hours in an eight-hour work period, two without

interruption. Further, the ALJ concluded that Pierce could on occasion climb,

balance, stoop, crouch, kneel, crawl, reach, handle, feel, and that he could push or

pull with slight impairment. The ALJ also found that Pierce had no impairment

involving his ability to see, hear, or speak. See Admin. Tr. at 278. In evaluating

Pierce’s mental impairments, the ALJ concluded:

He is likewise evaluated with good ability to follow work rules; relate

to co-workers; deal with the public; use judgement; interact with

supervisors; function independently; maintain attention/concentration;

understand, remember, [and] carry out complex job instructions;

maintain personal appearance; behave [in an] emotionally stable
2The Medical Assessment of Ability to do Work-Related Activities (Mental)

provides the following definitions:

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manner; relate predictably in social situations; and good ability to

demonstrate reliability.

Finally, the claimant is assessed with a fair ability to deal with stresses

and a very good ability to understand, remember, carry out simple job

instructions and understand, remember, and carry out detailed but not

complex job instructions.

Admin. Tr. at 278. 

The ALJ posed a hypothetical question to a vocational expert that recounted

the foregoing findings regarding residual functional capacity. The vocational expert

testified that a person with the described physical and mental limitations could

perfom a variety of sedentary jobs, such as manufacturing, of which 20,000 were

available.

“Testimony from a VE based on a properly-phrased hypothetical question

constitutes substantial evidence.” Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996).

A proper hypothetical question presents to the vocational expert a set of limitations

that mirror those of the claimant. See id. at 676. “Questions posed to a vocational

expert should precisely set out the claimant’s particular physical and mental

impairments.” Totz v. Sullivan, 961 F.2d 727, 730 (8th Cir. 1992). Pierce contends

that the hypothetical question posed to the vocational expert failed to state precisely

the extent of his mental limitations. He asserts that the mental limitations outlined

in the hypothetical question are inconsistent with the findings of Dr. Tom Heisler, the

Commissioner’s consulting psychologist, who noted on a medical assessment

checklist that Pierce retained only a fair ability to function independently, to maintain

attention and concentration, and to demonstrate reliability.2 Pierce argues that the
Good - Ability to function in this area is limited but satisfactory.

Fair - Ability to function in this area is seriously limited, but not precluded.

See Admin. Tr. at 250.

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ALJ is bound by Dr. Heisler’s findings. In Bentley v. Shalala, 52 F.3d 784, 786-87

(8th Cir. 1995), however, we stated that the government does not have to “live with”

an expert’s conclusions simply because the government hired the expert to evaluate

the claimant. The ALJ may reject the conclusions of any medical expert, whether

hired by the claimant or the government, if they are inconsistent with the record as

a whole. See id. at 787. 

We believe that the record as a whole supports the ALJ’s findings regarding

Pierce’s mental limitations. Pierce’s own testimony indicates that he considers

himself to be independent and reliable. He testified that so long as he is not suffering

from a headache, he is able to maintain attention and concentration. In response to

a question whether he could stay at home alone for one or two weeks, Pierce

responded, “there wouldn’t have to be nobody to tell me what to do and what not to

do.” Pierce also testified that if told to be somewhere at a certain time, he would be

there if he could find someone to drive him. In a word, Pierce’s responses are

indicative of a person who, if put to the test of performing responsibly in the

workaday world, would be able to function at a capacity consistent with that

attributed to him by the ALJ. Accordingly, we conclude that the hypothetical

question posed by the ALJ accurately set forth Pierce’s mental limitations and

abilities and that the vocational expert’s testimony in response to the question

constituted evidence sufficient to support the ALJ’s finding that Pierce is not

disabled.

The judgment is affirmed.

HEANEY, Circuit Judge, dissenting.
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There is little or no evidence in the administrative record to support the ALJ's

decision that there is gainful work in the manufacturing sector that Roger Pierce can

perform “in the sometimes competitive and stressful conditions in which real people

work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982)

(en banc). To the contrary, substantial evidence in the record as a whole leads to only

one conclusion: that Pierce is totally disabled within the meaning of the Social

Security Act. Accordingly, I respectfully dissent.

Most of the relevant facts are undisputed: Pierce is a 56-year-old male with a

seventh-grade education. For several years he successfully operated a 700-acre farm.

In 1986 he lost the farm in a foreclosure proceeding. He then worked for a short

period of time as a packer in a manufacturing plant.

Beginning in 1980, Pierce was treated for a variety of health problems

involving headaches, dizziness, and stomach problems, including duodenal and peptic

ulcers and irritable bowels. Between July 1982 and January 31, 1984, Pierce was

hospitalized three times for these medical conditions. He was also treated as an

outpatient on several occasions from 1980 through 1987 for the same conditions. He

finally quit his job as a packer in July 1987, stating that he was unable to continue to

work because of the medical conditions for which he had received and continued to

receive treatment. On December 11, 1987, he fell off the back of his pickup truck and

fractured his right ankle. Four days later the fracture was repaired and a metal plate

was installed. 

Unfortunately, at least thirty-eight pages of the administrative record relating

to Pierce's inpatient and outpatient treatment and medications prescribed are largely

unreadable. I have complained about this problem on several occasions in the past

and again complain. Unreadable records are of no value to the ALJ, the

Commissioner, the district court, or this court. It is the responsibility of the

Commissioner to make sure that a complete, readable, medical record is available to
3The ALJ conceded that Pierce had only a fair ability to deal with work stress

and included this factor in the hypothetical given to the vocational expert. 

4Pierce does not challenge on this appeal his:

residual functional capacity to lift and carry up to 25 pounds,

occasionally; stand and walk for 4 hours in an eight hour work period,

1 without interruption; and sit for a total of 6 hours within an eight hour

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all parties. Nonetheless, I have done the best I can, and this court must decide the

case on the basis of the records that can be read. Insofar as they are decipherable,

they demonstrate clearly that Pierce has had serious medical conditions since 1980,

that he has sought and received treatment for these conditions, that his treating

doctors have prescribed medication for the conditions, and that he has taken the

medication regularly. Suffice it to say that Pierce worked for several years with the

medical conditions, but they finally became so severe that he no longer was able to

work.

When this matter was first before an ALJ, he held that notwithstanding the fact

that Pierce had dysthymia, he could return to his past relevant work as a farmer. The

district court reversed and remanded with directions to the ALJ to consider all of

Pierce's credible complaints that affected his ability to perform his past relevant work.

On remand, a new ALJ concluded in May 1996 that Pierce could not return to his past

relevant work, but held that there were significant numbers of jobs existing in the

economy that Pierce could perform consistent with his residual functional capacity,

age, education, and work experience, including 20,000 regional manufacturing jobs.

The Commissioner approved the ALJ's decision, and the district court affirmed.

On appeal, Pierce contends that the ALJ's decision is not supported by

substantial evidence. Pierce argues that his ability to do light or sedentary work in

the manufacturing industry is seriously limited by his only fair ability3

 to function

independently, maintain attention and concentration, and demonstrate reliability.4
work period, 2 without interruption; and ability to alternately stand and

sit. He has an environmental limitation from working from heights.

[H]e can occasionally climb, balance, stoop, crouch, kneel, and crawl.

The claimant is also able to reach, handle, feel, push/pull with a slight

impairment with no impairment involving his ability to see, hear, and

speak. 

(Admin. R. at 278.) 

The record indicates that Pierce may, in fact, have difficulty in standing,

walking, and sitting without interruption for the time periods stated, but the issue is

not raised by Pierce and thus will not be considered on appeal.

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The ALJ who initially heard the matter referred Pierce to Dr. Tom Heisler for

a psychological examination. Dr. Heisler diagnosed Pierce as having "dysthymia

[and] personality disorder NOS (with dependent and hypochondriacal features)." He

reported that Pierce had a "very good" or "good" ability to follow work rules; relate

to co-workers; deal with the public; use judgment; interact with supervisors;

understand, remember, and carry out complex job instructions; understand, remember

and carry out detailed, but not complex, job instructions; understand, remember and

carry out simple job instructions; maintain personal appearance; behave in an

emotionally stable manner; and relate predictably in social situations. Dr. Heisler

reported, however, that Pierce had only a fair ability to deal with work stresses,

function independently, maintain attention/concentration, and demonstrate reliability,

with fair being defined as the "ability to function in this area is seriously limited, but

not precluded." Finally, Dr. Heisler stated that there was no exaggeration or

malingering evidenced. The first ALJ noted Dr. Heisler's report in his decision but

did not call a vocational expert to determine whether light or sedentary jobs that

Pierce could perform existed in the national economy in light of Pierce's only fair

abilities in the stated areas.
5The vocational expert did not list the occupational titles for the jobs he

claimed were available based on this hypothetical. However, it appears from page

166 of volume 1 of the administrative record that he was referring to title numbers

727.684-026 and 727.687-046 in the Dictionary of Occupational Titles. Both of these

jobs are in the light category. The first, "plate assembler, small battery," requires a

reasoning level of 3, which is defined as:

Apply commonsense understanding to carry out instructions furnished

in written, oral, or diagrammatic form. Deal with problems involving

several concrete variables in or from standardized situations.

This job also requires a mathematical development of level 2, defined as:

Add, subtract, multiply and divide all units of measure. Perform the four

operations with like common and decimal fractions. Compute ratio,

rate, and percent. Draw and interpret bar graphs. Perform arithmetic

operations involving all American monetary units.

And finally requires language development at level 2, defined as:

Reading:

Passive vocabulary of 5,000-6,000 words. Read at rate of 190-

215 words per minute. Read adventure stores and comic books,

looking up unfamiliar words in dictionary for meaning, spelling,

and pronunciation. Read instructions for assembling model cars

and airplanes.

Writing:

Write compound and complex sentences using cursive style,

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On remand, the second ALJ called a vocational expert and posed a hypothetical

question regarding Pierce's ability to lift, carry, sit, stand, push and pull. Based on

this hypothetical, the vocational expert opined that there were jobs in the

manufacturing industry, e.g., making microwave ovens, making cosmetics and

cosmetic supplies, and assembling and manufacturing personal computers, that Pierce

would be able to perform.5 The ALJ then asked an additional question based on Dr.
proper end punctuation, and employing adjectives and adverbs.

Speaking:

Speak clearly and distinctly with appropriate pauses and

emphasis, correct pronunciation, variations in word order, using

present, perfect, and future tenses.

Id. at 1011.

The second occupation referred to by the vocational expert is a "cell tuber,

hand (elec. equip.)." This job requires a reasoning level of 1:

Apply commonsense understanding to carry out simple one- or two-step

instructions. Deal with standardized situations with occasional or no

variables in or from these situations encountered on the job.

It also requires a mathematical development level of 1:

Add and subtract two digit numbers. Multiply and divide 10's and 100's

by 2, 3, 4, 5. Perform the four basic arithmetic operations with coins as

part of a dollar. Perform operations with units such as cup, pint, and

quart; inch, foot, and yard; and ounce and pound.

Finally, it requires a language development level of 1:

Reading:

Recognize meaning of 2,500 (two- or three-syllable) words. Read

at rate of 95-120 words per minute. Compare similarities and

differences between words and between series of numbers.

Writing:

Print simple sentences containing subject, verb, and object, and

series of numbers, names, and addresses.

Speaking:

Speak simple sentences, using normal word order, and present

and past tenses.

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Id.

Because no issue is raised by Pierce as to his ability to meet the reasoning,

mathematical, and language skills, I assume for the purposes of this dissent that he

can meet them, leaving only the issue of his ability to function independently,

maintain attention and concentration, and demonstrate reliability.

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Heisler's 1992 report:

Q [A]ssume that the hypothetical individual has good ability to

follow work rules, has good ability to relate to co-workers, has good

ability to deal with the public, good ability to use judgement [sic], good

ability to interact with supervisors, and fair ability to deal with work

stresses, fair ability to function independently, fair ability to maintain

attention and concentration, good ability to understand, remember, and

carry out detail, but no complex – correction – has good ability to

understand, remember and carry out complex job instructions, has very

good ability to understand, remember and carry out details, but not

complex instructions. Has very good ability to understand, remember

and carry out simple job instructions, has good ability to maintain

personal appearance, has good ability to behave in an emotionally stable

manner, he has good ability to relate particularly in social situations, and

fair ability to demonstrate reliability. Would that alter or change – well,

would there be any jobs in the regional or national economy, which that

individual could perform?

(Admin. R. at 331.)

The vocational expert responded in substance that a "fair ability to deal with

work stresses, function independently, maintain attention and concentration, and

demonstrate reliability" would preclude the work in the manufacturing industry

previously described and that "there would be no jobs in the regional or national

economy that person could do." Id. (emphasis added).
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Based on Dr. Heisler's evaluations and the vocational expert's opinion, the ALJ

had no alternative but to award disability benefits to Pierce. He chose, however, to

reject Dr. Heisler's opinion that Pierce had only a fair ability to function

independently, to maintain attention and concentration, and to demonstrate reliability

and to substitute his own opinion that Pierce had a good ability as to each factor. The

only support for this decision is found in a single sentence of the ALJ's opinion: "The

extensive nature of the claimant's daily activities reflect no deficiencies of

concentration, persistence, or pace." (Admin. R. at 273.) The most charitable thing

that one can say about the ALJ's conclusion is that it has absolutely no support in the

record.

Dr. Heisler was fully aware of Pierce's daily activities. He neither overstated

nor understated them. The ALJ was required to give credence to the doctor's findings.

The Commissioner cites Bentley v. Shalala, 52 F.3d 784, 786-87 (8th Cir. 1995), for

the proposition that an ALJ may reject the conclusion of any medical expert if the

conclusions are inconsistent with the medical record as a whole. I have no quarrel

with the case or the proposition. The fact is, however, that in Bentley there was

conflicting medical testimony. In this case, there is no conflict in medical testimony,

thus, no ability of the ALJ to choose between the opinions of doctors. The ALJ

simply substituted his opinion for that of Dr. Heisler and other doctors.

It is a total exaggeration to state that Pierce's daily activities are extensive or

that they demonstrate an ability to perform light or sedentary work. This court's en

banc decision in McCoy, by which we are all bound, makes clear that the test is the

ability to perform day in and day out in the sometimes competitive and stressful

conditions in which real people work. See 683 F.2d at 1147; see also Baumgarten v.

Chater, 75 F.3d 366, 369 (8th Cir. 1996) ("We have repeatedly held . . . that 'the ability

to do activities such as light housework and visiting with friends provides little or no

support for the finding that a claimant can perform full-time competitive work.' To

establish disability, [a claimant] need not prove that her pain precludes all productive
6Propulsid, used to treat stomach problems such as ulcers and poor digestion;

Pepcid, inhibits acid production in stomach; Zestoretic, used to treat high blood

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activity and confines her to life in front of the television.") (quoting Hogg v. Shalala,

45 F.3d 276, 278 (8th Cir. 1995) (citations omitted)); Thomas v. Sullivan, 876 F.2d

666, 669, 670 (8th Cir. 1989) ("First, we note that a claimant need not prove she is

bedridden or completely helpless to be found disabled. Second, we remind the

Secretary that to find a claimant has the residual functional capacity to perform a

certain type of work, the claimant must have the ability to perform the requisite acts

day in and day out, in the sometimes competitive and stressful conditions in which

real people work in the real world.") (citations omitted). 

The undisputed evidence is that Pierce arises somewhere between 3:00 a.m.

and 7:00 a.m. He takes his medication and then walks around in the yard. He has

good days and bad days. He doesn't eat very much and occasionally makes a meal for

himself, vacuums, or washes a few dishes. He is home alone from 2:00 to 4:00. His

wife or daughter is with him the rest of the time. He gets four to five hours sleep each

night and does not feel rested when he arises in the morning. He has difficulty

walking and cannot walk very far. On a good day, he can stand on his feet for 20 to

30 minutes. He has trouble with his grip. He can take care of his personal needs. He

has chest pain. He has consistent headaches that last from three to four weeks, and

he takes medication for his headaches nearly everyday. When he has a headache, he

sits around or lays down. He can maintain attention and concentration only when he

does not have headaches. He has trouble breathing. He is frequently nauseated. He

experiences frequent dizzy spells generally lasting ten to fifteen minutes. He has

passed out on three occasions while having these dizzy spells, once when he was

operating his riding lawnmower which he uses to mow his one-acre lawn once a

week. This takes him all day. He sees his family doctor frequently. He does not go

to church or visit people. To entertain himself he walks around the yard or sits

around. He takes all his prescribed medication on a regular basis.6 If he were told to
pressure; Midrin, used to treat headaches/migraines; Amitriptyline, used for

depression, pain and to help sleep; and Xanax, used for anxiety.

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be someplace at a certain time, he would be there if he were not sick. Pierce has a

driver's license but stated in the first hearing that due to his dizzy spells, he did not

drive unless his wife or daughter were unable to and only when necessary. At the

second hearing he again stated that he did not drive much any more. 

This testimony is totally consistent with his medical history and with the

medication he takes. The ALJ made no finding that his testimony was not credible.

Given this extensive list of problems, it is inconceivable that Pierce could work each

day “in the sometimes competitive and stressful conditions in which people work in

the real world.” McCoy, 683 F.2d at 1147.

Counsel for the Commissioner cites five reasons, other than the one advanced

by the ALJ, for affirming the ALJ's decision. (Appellee's Br. at 15-17.) None of the

reasons were cited by the ALJ to support his decision and none were given by the

Appeals Council when it approved the ALJ's decision. Thus, I believe it is improper

for the Commissioner to advance them now for the first time as support for the ALJ's

decision. The ALJ may or may not have believed that the reasons had merit. We can

only assume the latter, as he chose to base his decision solely on the question of

whether Pierce's ability to function independently, to maintain attention and

concentration, or to demonstrate reliability was fair or good.

One of the reasons advanced by the Commissioner was that Pierce failed to

follow up with psychotherapy treatment. Not only was this issue not raised by the

ALJ, but it is one that is hotly disputed in the record, there being a good deal of

evidence that Pierce did follow through with Dr. Heisler's recommendation and that

at no time has he refused treatment. I would further note that if Pierce's treating

physicians recommend that he receive psychotherapy treatment and he fails to comply

with their recommendation, then the Commissioner may seek termination of benefits.
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There is only one issue in this case, namely, whether there is substantial

evidence in the record as a whole to support the ALJ's decision that Roger Pierce

had a good rather than a fair ability to function independently, to maintain attention

and concentration, and to demonstrate reliability. The answer must be no. Dr.

Heisler, a government consultant, indicated that Pierce's ability was only fair and

that opinion is consistently supported by Pierce's extensive medical history, his

limited activities, and his testimony, which is fully supported by the objective facts.

The ALJ has not shown any valid reason to reject Dr. Heisler's opinion. If the ALJ

had good reason to question that opinion, then he could have addressed additional

questions to the doctor or called him as a witness. Instead, he substituted his

judgment for that of the doctor without reason. The Commissioner does not

question the vocational expert's testimony that if Pierce's abilities in the questioned

areas were only fair, then there were no jobs in the regional or national economy that

Piece could hold.

Pierce filed for disability in May 1991, and there is no basis other than that

found by the ALJ to deny Pierce disability benefits from that date to the present.

Thus, Pierce should be awarded disability benefits from May 1991 to the present,

and I would remand to the district court with directions to it to remand to the

Commissioner with instructions to award benefits accordingly.

A true copy.

Attest.

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