*3 that the reported -Howard health center. BYE, Circuit Judge. symptoms; antidepressants relieved to return to work requested a release she disability for Howard applied Victoria without limitations. supplemental secu- insurance benefits and the Social Secu- rity Ph.D., income benefits from Aquino, performed Dr. Juan (SSA) on her rity Administration based and administered evaluation psychological a hear- various medical conditions. After Intelligence Adult Scale— the Wechsler (ALJ) (WAIS-R). Judge Law ing, an Administrative Howard obtained Revised IQ was request, IQ she performance denied verbal score by the and & full scale disability Aquino under a defined 74. IQ Dr. Security “capáble Act. Howard sued determined that Howard Social court,2 simple proce- who instructions and district Commissioner despite to deficient atten- in favor "of the Commissioner. dures borderline decided IQ which We affirm the borderline appeals now us. She tion/conceiitration being pace in her somewhat may result of the district court. decision Wolle, Judge of Iowa. Judge for the Southern District E. Dis- trict 2. The Honorable Charles attendant, not specifically slow.” He test her housekeeper/cleaner, did room worker, to read. laundry packager, a hand jobs that those were both available nation- that she Howard claims is illiterate. At ally and Iowa. VE also testified hearing, testified that she reached she that, even with on wringing limitations out 7th, 9th, possibly grade, 6th or but items, rags grasping Howard could age pass left school at She did laundry still find work as a worker. exam, licensing it CNA but claims was license, has a read to her. She driver’s The ALJ concluded that Howard was exam; pass which had to a written not disabled as defined the Social Secu- there is no evidence as to whether the rity Act. *4 appealed the decision to exam to her or was read whether SSA, Appeals the Council of the which able to it on her own. intelli- read One determined that there was no basis for gence at placed grade test a 2nd level. granting Thus, review. the ALJ’s decision psychological No medical or evaluator has stands as the final decision the Commis- be found her to illiterate. the Security. sioner Social Howard then taking record indicates that she is classes sued the Commissioner district court. to learn to The concluded that read. ALJ judge rejected The district her specific education, grade she has a 9th which is contentions and the affirmed ALJ’s deci- defined as a “limited education.” 20 appeals. sion. She now §§ C.F.R. & 416.964. 404.1564 reports review, agency Based on from state On Howard makes four claims of (1) medical consultants who the reviewed rec- error: to require ALJ failed ord, the concluded that Howard has provide objective Commissioner to medical (RFC) functioning capacity residual that supports evidence perform an RFC to perform step other kinds of work at 5 of the disabil- (2)
light ity determination; work activities which do not re- the ALJ failed to quire and lifting carrying objects which findings take account of his own of fact in weigh than pounds occasionally more hypothetical posing to the vocational ex- pounds frequently, standing (3) and 10 or pert; the ALJ should have found How- walking more than hours without a be mentally ard to retarded thus dis- break, sitting more than 6 hours an (4) under regulations; abled given day. 8 hour The claimant is also limited Howard’s educational and physical level operate foot controls or disabilities, the ALJ should have found can only occasionally climb and wring guidelines that the support a determina- addition, out rags. In the claimant is tion that she is disabled.
only capable of performing simple, rou- tine, repetitive work. II testimony ALJ then heard from a vocational We review expert, who decisions testified that How- Com ard using missioner not be able to the same standard resume as the Bowen, as a posed CNA. When district court. v. hypothetical Cruse 867 F.2d (8th Cir.1989). question person By statute, as to whether a RFC, above-quoted education, age, findings of “[t]he the Commissioner of So work experience work, fact, Security could find the voca- supported cial as to if by (VE) tional expert opined per- evidence, that such a substantial be shall conclusive.” son could perform the work dining 405(g). have U.S.C. We stated that Shalala, 777, 779 v. 51 F.3d 5. Anderson de- the Commissioner’s uphold will [w]e Cir.1995). (8th In Anderson we noted by they supported are terminations record as de- responsibility evidence was the ALJ’s [i]t substantial is relevant all evidence RFC based on Substantial termine Anderson’s whole. evidence, mind would medical including a reasonable which relevant evidence records, physi- the Com- treating observations of adequate as accept assessing others, own and Anderson’s cians missioner’s conclusion. evidence, we must of her limitations. 20 C.F.R. substantiality description 404.1545-46, §§ from the We must detracts 416.945-46. consider evidence well evi- presents decision as whether the record determine Commissioner’s may RFC supports it. We medical evidence of Anderson’s dence merely hearing. be- the time of the Frankl v. Sha- the Commissioner reverse Cir.1995). (8th lala, sup- evidence exists cause substantial 47 F.3d 937-38 evidence, outcome. If no the ALJ’s a different there is such porting supported “cannot be said decision Apfel, Black Id. evidence.” substantial Cir.1998) (internal and citations quotations *5 however, evidence, The need medical omitted). require Secretary pro- the to does not heavily findings to the We defer already duce additional evidence not “If, after re conclusions of SSA. is permit- “[A]n within the record. view, to two find draw incon possible it we obtaining ted to issue decision without from the evidence one positions sistent long additional medical evidence so represents the Commis positions of those record provides evidence in the other we must affirm the denial findings, sioner’s decision.” sufficient basis for the ALJ’s Chater, v. 82 Mapes F.3d of benefits.” (8th Shalala, 186, v. 22 F.3d 189 Naber Cir.1996) (8th 259, v. (citing 262 Siemers Cir.1994). (8th Cir.1995)). 299, Shalala, 47 F.3d med- already sufficient Id. Since there was to ical evidence the record Ill decision, the Commissioner ALJ’s 5-step se- The SSA has established evi- required produce additional medical process for determin- evaluation quential step dence at §§ 404.1520 & disability. 20 C.F.R. ing IV is on the step burden 416.920. determine, by ap- either
Commissioner ALJ’s that Howard next contends guide- set vocational plying a standard function- of borderline intellectual findings by taking testimony from voca- lines or his ing dysthymia, determination expei’t, jobs there are available tional that deficiencies experienced that Howard often economy the claimant national concentration, were pace, or persistence Id. Howard contends perform. could vocational adequately presented hold ALJ failed to the Commissioner hypothetical. expert ALJ’s objective medi- providing the burden of expert assume the vocational ALJ asked supports per- an RFC to cal evidence perform- be that Howard would of work. other kinds form routine, How- tasks. ing simple, repetitive error. is reversible ard contends that this re This has considered and court must hypothetical question “A argument that additional jected Howard’s impair a claimant’s step precisely at describe produced must be medical evidence may expert repetitive, ments the vocational routine simple; adequately so tasks jobs accurately assess whether exist for captures Howard’s deficiencies concen- Chater, v. tration, the claimant.” Newton 92 F.3d persistence pace. or See Brachtel Cir.1996). Testimony (8th Cir.1997) 694-95 Apfel, v. F.3d prop based expert from a vocational on (holding hypothetical including sub erly-phrased hypothetical constitutes “ability only simple repetitive to do routine Chater, stantial evidence. Roe 92 F.3d work, which require does not close atten- (8th Cir.1996). The converse is sufficiently tion to detail” describes defi- Newton, true. See at 695. also concentration, persistence ciencies of or hypothetical ques “[w]hile pace.) im tion must set forth all the claimant’s V omitted], it
pairments, [citation need not specific diagnostic symptomatic use requests Howard also this court to descriptive terms where other terms can cognizance regulations take SSA’s define adequately impair the claimant’s P, § 20 C.F.R. Subpt. App. Roe, at 676. ments.” 12.05, Mental entitled Retardation and Autism. The psychological consultant hypothetical The ALJ’s assumed found Howard’s borderline intellectual simple, Howard was able do rou functioning to be some evidence of mental tine, All work. versions of the repetitive IQ retardation. Her was determined to be capacity, hypothetical assumed mental 71. Howard claims she should allowed and no additional were out brought details the benefit of the mental retardation cate direct cross examination. We find *6 gorization. describing capable doing her as of simple adequately work accounts for the regulations, Pursuant if a SSA claim- finding of borderline intellectual function is impairment(s) ant found to “have an ing. dysthymia The of diagnosis was requirement which meets the duration properly hypothetical excluded in Appendix equal from is listed 1 or is to a it being successfully because was treated impairment(s), listed [SSA] will find [the by antidepressants and Howard made no claimant] disabled without considering complaints further it. age, education, about [the and work claimant’s] 404.1520(d). § experience.” 20 C.F.R. agency psychological The State consul- §1 Appendix 12.05 lists the criteria which tant having described Howard as often establish mental or retardation autism. concentration, deficiencies of persistence capabilities Howard claims mental pace. or portion This of the consultant’s equal should considered the of those opinion is described “the medical severi- as 12.05C, in described section valid “[a] ver- ty condition, of capaci- a functional bal, performance, IQ or full scale of 60 ty Decision, p. evaluation.” ALJ’s The through 70 physical and a mental other assessment, capacity functional prepared impairment imposing additional and signif- by day, the same doctor de- on same icant work-related limitation or function.” scribes Howard being “able to sustain P, § 20 C.F.R. Subpt. App. sufficient concentration and attention to § 12.05C. perform at least simple, repetitive, and cognitive activity routine without severe have IQ We held that where a claimant’s of restriction function.” Id. at 8-9. Based within range given score does not fall record, 12.05C, hypothetical the ALJ’s con- in slightly range, but is above that cerning is capable doing someone who of the ALJ’s determination that the claimant functioning, a im- nonexertional supported is tellectual mentally retarded Chater, Lucy v. F.3d pairment. v. Sulli- See evidence. Cockerham substantial Cir.1997) (“We Cir.1990). (8th previous- have van, that borderline intellectual Thus, reject argument. ly concluded we must Howard’s functioning, supported by the record as if here, significant VI nonexertional it is is a impairment”). Finally, that the ALJ Howard contends argues the ALJ considered incorrectly the medical- determined that wrong guidelines because he looked to finding supported a guidelines vocational capable those of “grid” applicable 5, making in step At of “not disabled.” “light work.” Howard con- performing disability, as to an ALJ final determination “light can do the conclusion that she tests “grids” set looks to Tables first work,” only can and claims that she do Subpart P. Howev- in Appendix forth “sedentary guidelines indicate work.” er, pursuant regulations, to the capa- finding of not disabled for someone an impairment an individual has where work,” “light who ble resulting impairments or combination closely approaching age, advanced who strength limitations and nonex- both education, previous limited and whose limitations, the rules this sub- ertional § 20 C.F.R. work unskilled. determining first part are considered P, 2, § 202.10. Subpt. App. may be finding disabled whether of disabled for guidelines support strength limita- on the possible based performing only “sed- someone rule(s) and, not, reflect- tions alone work,” who all the other entary but shares ing the maximum residual individual’s above. 20 C.F.R. characteristics education, strength age, capabilities, P, 2, (cid:127)§ Essentially, Subpt. App. 201.09. provide a experience framework determination Howard contests ALJ’s much indi- for consideration of how “light can do work.” is further dimin- capability vidual’s work types jobs ished in terms of find substantial evidence We *7 by contraindicated the nonex- would be the support as a whole ALJ’s record limitations. ertional “light Howard of conclusion that P, 2, 404, medical information estab App. § work.” The Subpt. 20 C.F.R. 2.00(e)(2). case, surgeries, leg her that on § In Howard’s the ALJ lishes both hand, and that she her were successful that “the medical-vocational on determined 404, to work without limitations. Subpt. in was released guidelines set out 20 C.F.R. subjective her P, 2, ALJ that App. specifically Rules 202.10 determined credible, 202.17, testimony of was not due provide finding pain for a framework in the record as whole.3 By Decision 15. inconsistencies of not disabled.” ALJ’s 799, Gray 803 including qualification Apfel, that v. in the RFC the See Cir.1999) consider when (citing factors to only capable of sim- Howard is tasks, subjective com routine, analyzing a claimant’s repetitive the ALJ ple, ALJ’s conclu- pain affirming in- of plaints her borderline properly accounted for instance, describing daily She her activities. testimony and in For Howard’s is incon- ele- her doctor told her to after her also testified that about whether she worked sistent however, feet; medical records aspects her vate her the of onset date and about other having of a doctor told history. Additionally, contain no mention she is inconsis- CNA, describing job to do so. in her duties as a her tent Gray’s were not sup- sion that limitations cational abilities.” C.F.R. whole). 404.1564(b). § ported by the record as a Even Howard received low so, the has taken account of school, some failing grades it appears that physical problems, placed and therefore an reading especially difficult subject her standing, walking, limitations on and for Finally, her. Howard was enrolled lifting Finally, the abilities. ALJ account- reading classes at time she sought subjective pain ed for the from her carpal disability benefits. syndrome by that stating
tunnel she could opposite On the side of the balance are only occasionally wring rags. out several suggest facts that that Howard can passed read. She a driver’s also that test which
Howard contends she is accurate, ostensibly requires illiterate. If this is an guide applicant com plete support finding a written exam. Howard lines would did not disabled testify “grid” “light even on driver’s exam was work.” 20 read her, P, suggests § § and no Subpt. App. C.F.R. evidence 201.09. above, passed reading As even if Howard the exam without noted an individual has a questions addition, on her combination both own. exertional and nonex limitations, finding ertional ALJ found that left Howard school disabled after the 9th may “grids” grade. Although 9th using graders be reached if some may illiterate, functionally individual’s exertional limitations alone dic the more § tate common finding. persons such a 20 C.F.R. inference is that 2.00(e)(2). P, Thus, years § nine Subpt. App. public possess education some Howard could show that she is in read. fact C.F.R. Cf. 404.1564(b)(1) illiterate, (noting “[g]enerally, she would be entitled finding person an solely disabled illiterate had based exertional little or no schooling.”). formal Cunningham limitations. See Apfel, contests the (8th Cir.2000) (“Consid n. ALJ’s completed that she the 9th grade, Cunningham’s but her contrary eration of evidence to the nonexertional (and extraordinarily pain only limitations weak fortify perhaps such inter inconsistent) disabled.”). nally apparently conclusion she is and was dis Moreover, counted the ALJ. although rejected The ALJ Howard’s claim of Aquino Dr. found that Howard had bor illiteracy. Although the ALJ commented derline functioning, intellectual he made no no real “there is evidence the file to mention was illiterate. ALJ’s De statement,” Decision ALJ’s cision 12. the record contains of both evidence litera- *8 cy illiteracy. and testified Howard ultimately concluded that required she assistance on her nursing Howard could literacy read. Because the exam, crucial, and that the question test was read to her. the ALJ should have The record also at shows that least one developed stronger point. record intelligence placed test at only Howard v. Apfel, See Wilcutts 1137- level, second-grade Cir.1998) a level at which a per- (noting that the ALJ has son well, be expected not to read duty fully fairly develop to and at all. Although the ALJ found that How- listing record and which tests could be ard completed grade, the 9th agency’s literacy). administered determine own regulations recognize however, analysis, “the nu- the final the ALJ’s fail- merical grade you level that completed develop in ure to proof more robust of litera- (or school may represent your actual cy illiteracy) edu- is not fatal to the Com- function- range of intellectual borderline The administrative missioner’s decision. knowledge, of atten- ing. fund General to How- pointing evidence contains record tion/concentration, perception, visual read, and, given our defer- ability to ard’s so- ability following planning/sequential review, Mapes, see ential standard abilities, cues, visual-spatial psy- and cial suffi- deem the evidence F.3d at we chomotor attention were speed/sustained conclusion ALJ’s cient calculations, all Mental borderline. literate. There- functionally Howard is ab- reasoning, and common sense fore, benefit from we find that cannot thinking defi- were P, stract/associative 404, Subpt. App. § 20 C.F.R. cient. Rather, de- § we affirm ALJ’s 201.09. 308.) Subpt. (Admin. findings C.F.R. Tr. included
termination at His P, App. supports § 201.10 following: “not disabled.” borderline to Attention/concentration
deficient, relevant sub- as evidenced Given her bor- tests from the WAIS-R. VII IQ, pace will be somewhat slow. derline above, we affirm For the reasons stated may have difficulties Although she court. of the district the decision procedures, and simple with instructions difficulties these may proce- increase HEANEY, Judge, dissenting. Circuit ab- and instructions become more dures Howard, female, was Victoria a black However, by history, stract detailed. She has fif- on December born certainly is capable know that she we grandchildren. fifty-four teen children CNA cognitively duties. are prison. and a son Her husband to interact judgment Her at the children lived Five con- may be a source of appropriately hearing; teenagers were time of the two given history of assaultive be- cern All five have younger. three were haviors. hy- with attention diagnosed deficit been 309.) (Id. that Howard at The ALJ found disorder. peractivity impairments: following severe age at dropped out of school bypass surgery, Howard post aorta femoral “status thumbs, pregnancy. to her first She fourteen due of both degenerative joint disease education, has, most, release, but ninth-grade at tunnel border- post carpal status only second-grade level. tested at functioning, dysthy- line intellectual 19.) (Id. that she was unable Howard testified It is conceded mia.” history includes six past Her criminal to her read. is not able to return assaults, which occurred seven last assistant. as a nurses’ certified in the summer of 1996. why I reasons believe are several There but reverse we have no alternative Dr. Juan Aqui-
Howard was referred matter to the Commis- and remand this De- On psychological no for evaluation. sioner: 10,1996, he reported: cember *9 posed the ALJ hypotheticals 1. The administered the Wecsh-
The client was a expert not include the vocational did Intelligence ler Adult Scale-Re- [sic] as to statement IQ complete and accurate a verbal score vised. obtained She intel- and borderline dysthymia and a Howard’s performance IQ a score functioning, and the fact she would IQ on the WAIS-R. lectual full scale score of 74 of concentra- experience deficiencies abilities in the often place These scores her tion, pace resulting in persistence the in the United States. There would also complete timely failure to tasks in a man- in housekeeping be work aas cleaner. elsewhere, setting in ner a work nor DOT did code 323.687-014. There’s estimat- 2,000 200,000 any it her ed to in include reference to assaultive be Iowa and hypotheticals jobs read United are all by conduct. The as fol- States. These the way, light lows: unskilled. There would laundry. also be work DOT code Q ... the claimant [A]ssume 361.685-014. There’s estimated to be 700 maximum, up pounds able to lift to 20 45,000 in Iowa and in the United States. pounds frequently, that she able to jobs There would be as a hand packager. routine, repetitive do simple, work. The code is DOT 929.587-010. The ma- following That leg surgery she was are, jority jobs of these are in the medi- prevented any from doing prolonged um capacity. these —this walking. That more than means two give you number that I are those that hours on her feet without break. She light are found be in capacity. operation be 'to should also limited as 3,000 180,- There would be in Iowa and foot controls and also limited 000 In United States. climbing needed. amount of ....
(Admin. added).) Tr. at (emphasis 80-82 Q ... With these limitations would Howard testified she is unable to read. the claimant have been able to return to rejects testimony for the past job nursing assistant? reason she was able to take pass
No,A per- she not be able to a CNA examination and a written exami- past form her work. nation to obtain driver’s license. He rejects Q job ... Would given any have without supporting evidence any performed testimony as she it skills that she could was able to pass activity be used in other work under CNA examination it because was read question? hypothetical to her. As to the driver’s license examina- tion, obviously he is unfamiliar with the No, A those lower level skills do not practice Iowa which provides a computer transfer. testing at each station that reads the test Q taking And into consideration that out person requests loud to who it. If the claimant was still actually a—is fulfilling ALJ were his responsibility, younger individual who is functionally he questioned would have Howard as to illiterate,4 having a less than grade ninth how pass she was able to the driver’s education, training but and certi- license examination if she could not read fication as CNA utilized in assuming instead of telling she was not activity. her work there Would be un- truth her reading ability. about skilled perform? work she could Yes, A according hypotheti- to this 2. Even if one assumes that the hypo- cal perform she would be able to complete theticals were and that a func- aas room dining attendant. Food ser- tional illiterate can be found course, vice of light work, that would it clear that me, 311.69—excuse 311.677-018. There’s perform Howard is not able to the duties 1,200 90,000 estimated to be cleaner, Iowa and 323.687-014; of house laundry 4. A "functional literacy illiterate” is defined as "[o]ne II standard.” Webster’s New River- (1984). with some University education but Dictionary below minimum side
587 361.685-014; provides support little no worker, packager, and with friends hand 929.587-010, perform claimant can classified for the that a each of which were work,” in employed competitive (quoting Hogg A these light person work. full-time as (8th Cir.1995)). Shalala, expected carry to out detailed 45 278 positions is v. F.3d instructions; applied add and subtract correctly written This been standard numbers; and multiply divide two-digit by court other cases. numerous two, four, three, by and tens and hundreds Rainey Department v. Health & See of five; (8th such perform operations Servs., with units as F.3d 293 Human Cir. inch, foot, 1995) cup, quart; a and and pint, food, (holding visiting heating pound; read at the yard; and ounce and relatives, were “ac- watching and television minute; per words and rate of 95-120 are tivities we have held not substantial simple containing sentences sub- print ability evidence of the to do full-time verb, and a of num- ject, object and Bowen, series work.”); Kowril v. 912 F.2d bers, names, (8th and addresses. See Dictio- Cir.1990) “[disability (stating (4th Titles, nary Occupational It require incapacity. total re- does not of ed.1991). absolutely There no evidence is an individual unable to en- quires that any in the of these record she meets gainful activity.”); gage substantial is evidence to requirements. Nor there (8th Sullivan, 560, 565 Cline v. 939 F.2d could indicate that a functional illiterate Cir.1991) (holding “ability that claimant’s requirements. meet these merely perform to the limited service of coffee the excess pouring removing dining room position 3. The attend- an plates from table on occasional basis expert ant indicated vocational compel does a conclusion that claim- not perform could medium requires Howard full range ant is clearly strength, which the record indi- basis”); sedentary work on sustained possess. cates Howard does not (8th Sullivan, v. 876 F.2d Thomas that Howard The ALJ found Cir.1989) “ability that claimant’s (stating subjective respect not credible with assistance, attend light do housework pain complaints resulting functional church, phone or visit on the with friends daily limitations because activities indi- ability to do qualify does not as the sub- to work. cated she was able The testimo- activity”); gainful Easter v. Bow- stantial ny only light does indicates Cir.1989) en, (8th 1128, 1130 867 F.2d cleaning, dusting, such she watches tele- need not be (holding applicant that “[a]n vision, is to where she needs to driven perform completely bedridden or unable daughters, two her chil- go oldest to be dis- any household chores considered put away laundry, dren her fold and help abled”). her, chores, do and run cook outdoor (Admin. 25.) Tr. at errands. summary, clearly In there sub- certainly stantial evidence in the record activities do indicate These is capa- that Howard an to work “in the com- ALJ’s conclusion ability sometimes view, my light work. In record conditions which ble petitive stressful supports claim real real world.” rather Howard’s people Schweiker, very disability At the 1147 entitled to benefits. McCoy v. (8th Cir.1982) (en banc). least, Baumgarten entitled a remand and Howard is Chater, Cir.1996), evidentiary hearing at which an additional posed to proper hypothetical would be we that “the to do activi- reiterated doubt as light visiting expert, ties such as housework and vocational *11 would be It literacy eliminated. Howard’s wrong deny person benefits hearing more
short additional than eligibility.
likely establish her America,
UNITED STATES
Appellee, OLIVER, Jr., Appellant. W.
Gerald 00-3526.
No. Appeals,
United Court of States
Eighth Circuit. April 2001.
Submitted:
Filed: June 2001. Lee Teig, Berry,
Robert R. Sean U.S. Office, IA, Attorney’s Rapids, Cedar Jared Goldstein, Justice, A. Department U.S. Environment & Natural Resources Divi- sion, DC, Washington, for appellee. IA, Leon Spies, City, Fred Iowa appellant. LOKEN,
Before Judge, Circuit BOGUE,2 GOLDBERG1 and District Judges.3 PER CURIAM. Oliver, appeals
Gerald W. from Jr. pretrial denial of his motion to dismiss the 46(b), Goldberg, The Honorable Richard W. Sen- 3.Pursuant to 28 U.S.C. the Chief Judge ior for the United States Court of Inter- Judge judicial certified the existence of a Trade, sitting by designation. national emergency necessitating designation aof panel consisting of than fewer two members Bogue, 2. The Honorable Andrew W. Senior Appeals. the Court Judge United States District for the District of Dakota, sitting by designation. South