### The Honorable Donald D. Alsop, United States District Judge 1 

### for the District of Minnesota, sitting by designation. United States Court of Appeals for the eighth circuit

___________ No. 96-2529

___________ Belinda Flanery, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Shirley S. Chater, * Commissioner of the Social * Security Administration, * * Appellee. *

___________ Submitted: January 13, 1997 Filed: April 25, 1997

___________ Bef ore RICHARD S. ARNOLD, Chief Circuit Judge, BEAM, Circuit Judge, an d ALSOP, District Judge.

1

___________ BEAM, Circuit Judge.

Be linda Flanery appeals the denial of Supplemental Security Incom e (SSI) benefits. Because we find the Commissioner’s decision is no t supported by substantial evidence in the record as a whole, we reverse and remand for an award of benefits.

### A grand mal seizure is characterized by a loss of 2 

### consciousness with generalized tonic-clonic seizures. Dorland’s Illustrated Medical Dictionary 567 (28th ed. 1994). A tonicclonic seizure is a spasm consisting of a convulsive twitching of the muscles. Id. at 1719. Psychomotor seizures are characterized by variable degrees 3 

### of impairment of consciousness and performance of a series of coordinated acts which are out of place, bizarre, and serve no useful purpose, for which the victim is amnesic. Dorland’s Illustrated Medical Dictionary at 567.
-2- I. BACKGROUND

Flaneryis a twenty-six-year-old woman with a seizure disorder an d border line intellectual functioning. She suffers from both grand ma l seizures and psychomotor seizures. She has a ninth-grade education and

2 3 has never been employed. Flanery applied for SSI benefits in 1992 , alleging disability since 1983 due to epilepsy and mental problems. Her applic ation was denied initially and on reconsideration. She the n requested a hearing before an administrative law judge (ALJ).

At the he aring, Flanery testified that on most days she has several
nervous spells or “fits.” Whenever one of these “spells” occurs, her hand s draw up, her eyes roll, and she cannot comprehen d what is happening around her. T hese episodes last for about a minute following which she has n o recollection of them and has to rest for half an hour. Her dail y activities, on good days, include preparing meals for her three children and light housework. She said these activities sometimes provoke a “spell.” She is so tired after housecleaning that she suffers sever e headaches and sometim es seizures. As a result, she stated that she “lays around” most of the time. She is unable to drive.

### Jacksonian epilepsy is characterized by focal motor 4 

### seizures with unilateral clonic movements (alternate contraction and relaxation of muscles) that start in one group of muscles and spread systematically to adjacent groups. Dorland’s Illustrated Medical Dictionaryat 567. A focal motor seizure is a simple partial seizure consisting of a spasm of a muscle group. Id. at 1503.
-3- Flanery’s husband also testified at the hearing. He stated that he witn essed eight “spells” in a one-hour period the previous day. Hi s description of the spells was similar to that of his wife. He estimated that the spells generally occur five or six times a day, more often when she is ac tive. The record contains statements of other people who hav e witnessed one or more of Flanery’s “seizures,” “ convulsions,” “blackouts,”
or “sp ells.” These witnesses described Flanery trembling, staring int o space, jerking her head, and being unable to remember the episode. I n addition, the record shows that Dr. Russell L. D ixon, a psychologist, also witnessed Flanery having both a grand mal seizur e and a shorter jacksonian seizure, during which she stared ah ead blankly, ground her teeth, rotated

4 her head and jerked slightly several times.

The medic al evidence shows that Flanery suffers from both grand mal seizures and psychomotor or focal seizures. She was first treated for a seizure disorder when she was thirteen years old . She was treated with an anti-convulsant medication that apparently controlled her grand ma l seizures. In 1991, F lanery’s treating physician, Dr. Gary R. Goza, noted that Flanery continue d to suffer from “spells” involving a sudden loss of memory and comprehension. The frequency of the spells varied--sh e sometimes would not have any for a few days and sometimes had several in a day. Dr. Goza’s diagnosis was “seizure disorder, generalized

### There are two types of partial seizures: 1) a complex 5 

### partial seizure is associated with a disease of the temporal lobe and characterized by varying degrees of impairment of consciousness; the patient performs automatisms and is later amnesic for them; 2) a simple partial seizure is the most localized type of partial seizure; symptoms are varied and include motor symptoms as in a focal motor seizure. Dorland’s Illustrated Medical Dictionary at 1503.
-4- seizures appear to be well-controlled,” although at that time he questione d whether Flanery might still be having partial seizures. 5 An EEG later in 1991 showed abnormal brain function. Dr. Goza noted
a pattern of brain activity which is “sometimes seen in patients wit h generalized seizure disorders.” In a September 1992 letter to the state disability office, Dr . Goza stated that Flanery suffers from “episodes of transient inability to respond, partial complex seizures, and occasional gra nd mal seizures.” In a February 1993 letter, Dr. Goza stated tha t Flaner ysuffers from partial complex seizures that last about fiftee n seconds and occur several times a week. In December 1993, Dr. Goza’s note s again indicate that Flanery “otherwise continues to have episodes almost every da y where she feels her eyes are fluttering and she is unable t o respond appropriately for a short time but doesn’t lose consciousness.”

A neurologist, Dr. Peggy J. Brown, examined Flanery in 1994. Dr

. Brown reported that Flanery’s “seizure disorder sounds like it i s consistent with complex partial seizures with secondary generalization.” Dr. Brown also noted that the results of Flanery’s August 1994 EEG wer e consistent with complex partial epilepsy and not ed that Flanery’s seizures were “not completely

### Tegretol and Dilantin are anti-convulsant and anti- 6 

### epileptic medications. Physician’s Desk Reference 603 & 1837 (49th ed. 1995). A petit mal seizure, also known as an absence seizure, 7 

### consists of a momentary break in consciousness of thought or activity, often accompanied by automatisms or clonic movements, especially of the eyelids. Dorland’s Illustrated Medical Dictionary at 1502.
-5- contro lled on Tegretol or Dilantin.” In December 1994, Dr. Brown agai n 6 characterized Flanery’s seizures as “poorly controlled.”

A vocatio nal expert testified at the hearing. He was asked whether there were jobs in the national economy that a p erson of Flanery’s age and work experience, with seizures controlled by medication, could perform if she were limited to “unskilled work which consists of nothing more tha n simple repetitive tasks done under simple direct concrete supervision” wit h interpersonal contact limited to “no more complex than that necessary to carry out the simple and direct concrete instructions” and where the work “can be performed wit hout working at heights, around dangerous machinery, which does not require driving of a vehicle nor the carrying of a firearm. ” He responded that suc h jobs, for example those of house cleaners or child
care workers, exist in the national economy. The vocational expert wa s then asked, by Flanery’s counsel, whether jobs existed for a person o f Flanery’s age and experience who had infrequent grand mal seizures and fou r to five petit mal seizures a day that required her to rest for up t o 7 thirty minutes after each seizure. The vocational expert stated that ther e were no such jobs in the national economy. The A LJ found that although Flanery suffers from a severe seizur e disord er and borderline intellectual functioning, she does not have a disorder that meets or equals the listing of

### Flanery also suffers from epilepsy with grand mal seizures 8 

### as described in Section 11.02 of the Listings. However, the record supports the ALJ’s finding that Flanery’s grand mal seizures are controlled by medication and Flanery does not dispute that finding. Accordingly, her impairment does not meet or equal the disability listed in Section 11.02.
-6- presumptively disabling impairments. In making that finding, he noted tha t “th e medical record shows that the claimant’s seizure disorder is unde r good control with Dilantin” and that “the medical findings that are presen t
are n ot consistent with the disabling level of seizures alleged by th e claimant.” He discou nted Flanery’s testimony regarding daily seizures as incons istent with her daily activities and found her “subjectiv e allegations are not borne out by the overall record and are found not to be fully credible.” The ALJ also discounted Flanery’s husband’s account of th e seizures as based on an uncritical acceptance of Flanery’ s complaints and motivated by a desire to help her obtain benefits. The ALJ thus found that Flane ry has the residual functional capacity to perform a wide range of medium work, such as that of a child care worker or a house cleaner. The Appeals Council affirmed the decision, as did the district court.
On appeal, Flanery contends that the ALJ’s decision is not supported bysubstantial evidence. She argues that her impairment meets or equals the pr esumptively disabling condition listed in Section 11.03 of th e Append ix 1 to Subpart P of 20 C.F.R. Part 404 (“the Listings”) whic h describes disability by reason of epilepsy with minor motor seizures. 8

### -7-

II. DISCUSSION

Our task on appeal is to determine whether the Commissioner’ s decision is supported by substantial evidence in the record as a whole

. Siemers v. Shalala , 47 F.3d 299, 301 (8th Cir. 1995). In our review of th e record, we thus consi der evidence that detracts from the decision as well
as evid ence that supports it. Id. Substantial evidence is less than a preponderance, but enough that a reasonable mindmight find it adequate to sup port the conclusion. Oberst v. Shalala , 2 F.3d 249, 250 (8th Cir

. 1993).

Under the Commissioner’s regulations, the disability determinatio n involves step-by-step analysis of any current work activity, the severity of the claimant’s impairments, the claimant’s re sidual functional capacity and age, education and work experience. 20 C.F. R. § 404.1520(a); Braswell

v. Heck ler , 733 F.2d 531, 532 (8th Cir. 1984). If the claimant suffer s from an impairment that is listed in the Listings or is equal to such a liste d impairment, the claimant will be determined disabled withou t considering age, education, or work experience. Braswell , 733 F.2d at 533

.

To be considered presumptively disabled under Section 11.03 of th e Listings, a claimant must have seizures that are documented by an EEG and bydetailed description of a typical seizure pattern with all associated phen omena. 20 C.F.R. Pt. 404, App. 1, Subpt. P § 11.03 (1996). Thes e seizures must occur m ore frequently than once a week in spite of at least th ree months of prescribed treatment. Id. The seizures must b e accompanied by an alteration

### Postictal means occurring after a seizure or sudden attack. 9 

### Dorland’s Illustrated Medical Dictionary at 1340.
-8- of awar eness or loss of consciousness and transient postictal 9 manifestations of unconventional behavior or sig nificant interference with activity during the day. Id.

Flanery’s condition meets all of these requirements. Her seizure s are documented by abnormal EEG results. Flanery and her husband testified that her seizures occur more often than once a week. The Flanery s testified that the seizures involve alteration of awareness an d significantly interfe re with daily activities. This testimony is further supported by the statements of other seizure witnesses and by the report of a doct or who witnessed a seizure. None of that testimony i s contradicted in the record.
Furthermore, the medical evidence uniformly demonstrates that F lanery has seizures that are consistent with partial complex epilepsy. The ALJ placed inordinate emphasis on an isolated statement by Dr. Goza in 199 1 that Flanery’s seizures were controlled by medication. Read in context, that stat ement refers only to her grand mal seizures and not to he r “spells” or petit mal seizures. The statement is immediately followed by
a sentence regarding the continued occurrence of the “spells.” Although initiall yhesitant to label the spells as seizures, Dr. Goza late r diag nosed the episodes as partial complex seizures following Flanery’ s abnormal EEG.

In addition, the ALJ improperly discounted medical diagnoses a s having been based only on Flanery’s own recitati on of events. A patient’s report of complaints, or history, is an essential diagnostic tool. See , e.g. , Brand v. Secretary of the Dep’t of

### We note that this action could also be reversed on the 10 

### ground that the hypothetical posed to the vocational expert did not contain all of Flanery’s impairments that are supported by the record. See , e.g. , Stout v. Shalala , 988 F.2d 853, 855 (8th Cir. 1993) (the ALJ’s hypothetical must include those impairments that are substantially supported by the record). Flanery’s partial complex seizures are supported by the record and she was entitled to have the vocational expert consider them along with her other impairments. In light of our disposition, and because Flanery’s counsel elicited evidence of the effect of the partial complex seizures on her employment prospects, we need not further discuss the issue.
-9- Heal th, Educ. and Welfare , 623 F.2d 523, 526 (8th Cir. 1980) (“[a]n y medica l diagnosis must necessarily rely upon the patient’s history an d subjective complaints ”). There is nothing in this record to suggest that Flanery’s medical professionals should have doubted Flanery’s word. Her claimed symptoms are consistent with objective t ests (the EEG), the nature of her disorder, and eyewitness testimony.

Moreover, we find that Flanery’s account of her daily activities is not in consistent with a disabling seizure disorder. She testified that , although she can sometimes care for her own needs and those of her three children, her days are often interrupted by seizures and by her need t o rest afte rward. These episodes may not be totally disruptive in a hom e environment, but could hardly be accommodated inthe workplace. In short, the record overwhelmingly supports a finding of disability. 10 Because we find Flanery disabled on this record, we must consid er the remedy. We find that the record supports an award of benefits. Even if Flanery’s condition did not meet the Listings, the evidence shows tha t there would be no jobs in the national economy t hat Flanery could perform. If the record contains substantial evidence supporting a finding o f disability, a

### -10-

reviewing court may r everse and remand to the district court for entry of
an order granting benefits to the claimant. Andler v. Chater , 100 F.3 d 1389, 1394 (8th Cir. 1996). Under the circumstances, we find furthe r he arings would merely delay benefits; accordingly, an order grantin g benefits is appropriate. Id.

III. CONCLUSION

For the reasons stated above, we reverse and instruct the distric t court to remand to the Commissioner for an award of benefits.
ALSOP, District Judge, dissenting. Bec ause I do not agree with the majority that the substantia l evidence in the record shows that Flanery meets all of the requirement s under Section 11.03 of the Listings, I respectfully dissent. As th e majority notes, Listing 11.03 lays down the requirements for Epilepsy-Mino r Motor seizures. It provides:
Epi lepsy-Minor motor seizures (petit mal, psychomotor, o r foc al), documented by EEG and by detailed description of a typical seizure pattern, including all associated phenomena ; occurring more frequently than once weekly in spite of at least 3 months of prescribed t reatment. With alteration of awareness or loss of consciousness and transient postictal ma nifestations of unconventional behavior or significant interference wit h activity during the day.

As th e majority points out there is evidence of seizures documented b y abnormal EEG results, however, the substantial evidence on the record doe s not show that Flanery has experienced these seizures with the frequenc y required in the listing. The majority found that

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the testim ony of Flanery and her husband showed that she had seizure s occurri ng more than once weekly. The ALJ discredited the testimony o f Fla nery’s husband finding it was based upon an uncritical acceptance o f Flanery’s complaints and motivated in part by th e desire to see her obtain benefits. Tr. 22. He discounted Flanery’s subjective complaints, finding they were inconsisten t with the medical findings and Flanery’s functional limitations. Id. Questions of credibility are for the trier of fact and th e Court usually defers to such a finding if the ALJ explicitly discredits a claimant’s testimony and gives good reason for doing so. See Dixon v

. Sullivan , 905 F.2d 237, 238 (8th Cir. 1990). Here the ALJ did both.

The major ity found the testimony of Flanery and her husband wa s supported by statemen ts from other witnesses and a doctor who witnessed a seizure. While these statements show that Flanery experienced seizures, none show that the seizures occurred more frequently than one weekly.
I cannot agree with the majority that the medical evidence show s that Flanery meets the 11.03 Listing. The majority re lies upon a statement made by Dr. Goza in 1991 to establish that Flanery has partial seizures. I disagree that Dr. Goza’s 1991 statement supports such a finding. Even if his statement that Fl anery’s “seizures appear to be well controlled”, Tr. 180, is understood as the majority proposes to refer only to Flanery’ s gran d mal seizures, the statement does not indicate that Flanery wa s experiencing uncontro lled frequent petit mal seizures. Dr. Goza indicated tha t he had “some question whether she still may be having partia l seizures”

. Id. A statement Dr. Goza made in 1993 reiterated his doubt s about whether Flanery was experiencing partial seizures. Tr. 246. In that statement he observed that it

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was difficult to be c ertain whether episodes Flanery claimed to be having almost daily, in which “her eyes are fluttering and she is unable t o respond appropriately for a short time but doesn’t lose consciousness,” ar e partial seizures. Id.

The only other medical evidence offered to show that Flanery meet s the 11.03 Listing is a statement made in August 1994 by a neurologist, Dr. Brown, who after talking with Flanery and reviewing her history stated tha t her seizu res had been poorly controlled on the drug she was taking. Tr

. 252. The ALJ found that the neurologist’s statement was based upo n Flanery’s subjective complaints and discredited it. As the ALJ had found the te stimony of frequent uncontrolled seizures from Flanery and he r husband was not credible, the ALJ could properly conclude in the absence of medical evidence that a report based upon such testimony was unreliable

.

The evid ence of Flanery’s daily activities also shows she does no t meet the listing requirement. The record shows that she takes care of a house an d three children, and does the cooking, laundry, and othe r household chores. She has no restrictions on daily activities from he r phys ician, other than her use of an automobile, heavy machinery, an d firearms.

The s ubstantial evidence in the record does not show that Flaner y meets the listing requirements of 11.03 and therefore I would affirm the di strict court’s affirmance of the denial of SSI benefits by th e Commissioner based upon substantial evidence in the record as a whole.

### -13- A true copy.

Attest:

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