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 

___________

Before RICHARD S. ARNOLD, Chief Circuit Judge, BEAM, Circuit Judge, and

ALSOP, District Judge. 1

___________

BEAM, Circuit Judge.

Belinda Flanery appeals the denial of Supplemental Security Income

(SSI) benefits. Because we find the Commissioner’s decision is not

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. 

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I. BACKGROUND

Flanery is a twenty-six-year-old woman with a seizure disorder and

borderline intellectual functioning. She suffers from both grand mal

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

application was denied initially and on reconsideration. She then

requested a hearing before an administrative law judge (ALJ). 

At the hearing, Flanery testified that on most days she has several

nervous spells or “fits.” Whenever one of these “spells” occurs, her hands

draw up, her eyes roll, and she cannot comprehend what is happening around

her. These episodes last for about a minute following which she has no

recollection of them and has to rest for half an hour. Her daily

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 severe

headaches and sometimes 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 Dictionary at 567. A focal motor seizure is a simple

partial seizure consisting of a spasm of a muscle group. Id. at

1503.

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Flanery’s husband also testified at the hearing. He stated that he

witnessed eight “spells” in a one-hour period the previous day. His

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 active. The record contains statements of other people who have

witnessed one or more of Flanery’s “seizures,” “convulsions,” “blackouts,”

or “spells.” These witnesses described Flanery trembling, staring into

space, jerking her head, and being unable to remember the episode. In

addition, the record shows that Dr. Russell L. Dixon, a psychologist, also

witnessed Flanery having both a grand mal seizure and a shorter jacksonian

seizure, during which she stared ahead blankly, ground her teeth, rotated 4

her head and jerked slightly several times. 

The medical 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 mal

seizures. In 1991, Flanery’s treating physician, Dr. Gary R. Goza, noted

that Flanery continued to suffer from “spells” involving a sudden loss of

memory and comprehension. The frequency of the spells varied--she

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. 

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seizures appear to be well-controlled,” although at that time he questioned

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 with

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

grand mal seizures.” In a February 1993 letter, Dr. Goza stated that

Flanery suffers from partial complex seizures that last about fifteen

seconds and occur several times a week. In December 1993, Dr. Goza’s notes

again indicate that Flanery “otherwise continues to have episodes almost

every day where she feels her eyes are fluttering and she is unable to

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 is

consistent with complex partial seizures with secondary generalization.”

Dr. Brown also noted that the results of Flanery’s August 1994 EEG were

consistent with complex partial epilepsy and noted 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.

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controlled on Tegretol or Dilantin.” In December 1994, Dr. Brown again

6

characterized Flanery’s seizures as “poorly controlled.” 

A vocational expert testified at the hearing. He was asked whether

there were jobs in the national economy that a person 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 than

simple repetitive tasks done under simple direct concrete supervision” with

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 without working at heights, around dangerous machinery,

which does not require driving of a vehicle nor the carrying of a firearm.”

He responded that such jobs, for example those of house cleaners or child

care workers, exist in the national economy. The vocational expert was

then asked, by Flanery’s counsel, whether jobs existed for a person of

Flanery’s age and experience who had infrequent grand mal seizures and four

to five petit mal seizures a day that required her to rest for up to

7

thirty minutes after each seizure. The vocational expert stated that there

were no such jobs in the national economy. 

The ALJ found that although Flanery suffers from a severe seizure

disorder 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.

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presumptively disabling impairments. In making that finding, he noted that

“the medical record shows that the claimant’s seizure disorder is under

good control with Dilantin” and that “the medical findings that are present

are not consistent with the disabling level of seizures alleged by the

claimant.” He discounted Flanery’s testimony regarding daily seizures as

inconsistent with her daily activities and found her “subjective

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 the 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 Flanery 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

by substantial evidence. She argues that her impairment meets or equals

the presumptively disabling condition listed in Section 11.03 of the

Appendix 1 to Subpart P of 20 C.F.R. Part 404 (“the Listings”) which

describes disability by reason of epilepsy with minor motor seizures.8
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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 the

record, we thus consider evidence that detracts from the decision as well

as evidence that supports it. Id. Substantial evidence is less than a

preponderance, but enough that a reasonable mind might find it adequate to

support the conclusion. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.

1993).

Under the Commissioner’s regulations, the disability determination

involves step-by-step analysis of any current work activity, the severity

of the claimant’s impairments, the claimant’s residual functional capacity

and age, education and work experience. 20 C.F.R. § 404.1520(a); Braswell

v. Heckler, 733 F.2d 531, 532 (8th Cir. 1984). If the claimant suffers

from an impairment that is listed in the Listings or is equal to such a

listed impairment, the claimant will be determined disabled without

considering age, education, or work experience. Braswell, 733 F.2d at 533.

To be considered presumptively disabled under Section 11.03 of the

Listings, a claimant must have seizures that are documented by an EEG and

by detailed description of a typical seizure pattern with all associated

phenomena. 20 C.F.R. Pt. 404, App. 1, Subpt. P § 11.03 (1996). These

seizures must occur more frequently than once a week in spite of at least

three months of prescribed treatment. Id. The seizures must be

accompanied by an alteration
Postictal means occurring after a seizure or sudden attack. 9

Dorland’s Illustrated Medical Dictionary at 1340.

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of awareness or loss of consciousness and transient postictal9

manifestations of unconventional behavior or significant interference with

activity during the day. Id. 

Flanery’s condition meets all of these requirements. Her seizures

are documented by abnormal EEG results. Flanery and her husband testified

that her seizures occur more often than once a week. The Flanerys

testified that the seizures involve alteration of awareness and

significantly interfere with daily activities. This testimony is further

supported by the statements of other seizure witnesses and by the report

of a doctor who witnessed a seizure. None of that testimony is

contradicted in the record.

Furthermore, the medical evidence uniformly demonstrates that Flanery

has seizures that are consistent with partial complex epilepsy. The ALJ

placed inordinate emphasis on an isolated statement by Dr. Goza in 1991

that Flanery’s seizures were controlled by medication. Read in context,

that statement refers only to her grand mal seizures and not to her

“spells” or petit mal seizures. The statement is immediately followed by

a sentence regarding the continued occurrence of the “spells.” Although

initially hesitant to label the spells as seizures, Dr. Goza later

diagnosed the episodes as partial complex seizures following Flanery’s

abnormal EEG. 

In addition, the ALJ improperly discounted medical diagnoses as

having been based only on Flanery’s own recitation 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.

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Health, Educ. and Welfare, 623 F.2d 523, 526 (8th Cir. 1980) (“[a]ny

medical diagnosis must necessarily rely upon the patient’s history and

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 tests (the EEG), the nature

of her disorder, and eyewitness testimony.

 

Moreover, we find that Flanery’s account of her daily activities is

not inconsistent 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 to

rest afterward. These episodes may not be totally disruptive in a home

environment, but could hardly be accommodated in the workplace. In short,

the record overwhelmingly supports a finding of disability.10

Because we find Flanery disabled on this record, we must consider 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 that

there would be no jobs in the national economy that Flanery could perform.

If the record contains substantial evidence supporting a finding of

disability, a
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reviewing court may reverse and remand to the district court for entry of

an order granting benefits to the claimant. Andler v. Chater, 100 F.3d

1389, 1394 (8th Cir. 1996). Under the circumstances, we find further

hearings would merely delay benefits; accordingly, an order granting

benefits is appropriate. Id.

III. CONCLUSION

For the reasons stated above, we reverse and instruct the district

court to remand to the Commissioner for an award of benefits.

 

ALSOP, District Judge, dissenting.

Because I do not agree with the majority that the substantial

evidence in the record shows that Flanery meets all of the requirements

under Section 11.03 of the Listings, I respectfully dissent. As the

majority notes, Listing 11.03 lays down the requirements for Epilepsy-Minor

Motor seizures. It provides:

Epilepsy-Minor motor seizures (petit mal, psychomotor, or

focal), 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 treatment. With alteration of awareness

or loss of consciousness and transient postictal manifestations

of unconventional behavior or significant interference with

activity during the day.

As the majority points out there is evidence of seizures documented by

abnormal EEG results, however, the substantial evidence on the record does

not show that Flanery has experienced these seizures with the frequency

required in the listing. The majority found that
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the testimony of Flanery and her husband showed that she had seizures

occurring more than once weekly. The ALJ discredited the testimony of

Flanery’s husband finding it was based upon an uncritical acceptance of

Flanery’s complaints and motivated in part by the desire to see her obtain

benefits. Tr. 22. He discounted Flanery’s subjective complaints, finding

they were inconsistent with the medical findings and Flanery’s functional

limitations. Id. Questions of credibility are for the trier of fact and the

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 majority found the testimony of Flanery and her husband was

supported by statements 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 shows that

Flanery meets the 11.03 Listing. The majority relies 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 Flanery’s “seizures appear to be well controlled”, Tr.

180, is understood as the majority proposes to refer only to Flanery’s

grand mal seizures, the statement does not indicate that Flanery was

experiencing uncontrolled frequent petit mal seizures. Dr. Goza indicated

that he had “some question whether she still may be having partial

seizures”. Id. A statement Dr. Goza made in 1993 reiterated his doubts

about whether Flanery was experiencing partial seizures. Tr. 246. In that

statement he observed that it
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was difficult to be certain whether episodes Flanery claimed to be having

almost daily, in which “her eyes are fluttering and she is unable to

respond appropriately for a short time but doesn’t lose consciousness,” are

partial seizures. Id.

The only other medical evidence offered to show that Flanery meets

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 that

her seizures had been poorly controlled on the drug she was taking. Tr.

252. The ALJ found that the neurologist’s statement was based upon

Flanery’s subjective complaints and discredited it. As the ALJ had found

the testimony of frequent uncontrolled seizures from Flanery and her

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 evidence of Flanery’s daily activities also shows she does not

meet the listing requirement. The record shows that she takes care of a

house and three children, and does the cooking, laundry, and other

household chores. She has no restrictions on daily activities from her

physician, other than her use of an automobile, heavy machinery, and

firearms.

The substantial evidence in the record does not show that Flanery

meets the listing requirements of 11.03 and therefore I would affirm the

district court’s affirmance of the denial of SSI benefits by the

Commissioner based upon substantial evidence in the record as a whole. 
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A true copy.

Attest:

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