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711 F.2d 96

Docket No. 82-2370.

Brenner v. Schweiker

Eighth Circuit Court of Appeals

Submitted May 18, 1983.

Decided July 5, 1983.

Eighth Circuit Court of Appeals · decided 1983-07-05

Cited by 9 later decisions — most recently July 1987

5 federal appellate ·

2 counsel of record

Relies on Brand v. Secretary of Department of Health Education and Welfare · Camp v. Schweiker · Bailey v. Califano

Good law ✅— No negative treatment on recordhow we know

Opinion by Theodore McMillian · Decided 1983-07-05

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¶1*97Evan L. Hultman, U.S. Atty., Robert L. Teig, Asst. U.S. Atty., N.D. Iowa, Cedar Rapids,'Iowa, for appellee; Paul P. Caciop-po, Regional Atty., Kenneth J. Cain, Atty., Dept, of Health and Human Services, Kansas City, Mo., of counsel.

¶2John Lansing Brown, Legal Services Corp. of Iowa, Dubuque, Iowa, for appellant.

¶3Before BRIGHT and McMILLIAN, Circuit Judges, and NICHOL,* Senior District Judge.

¶5McMILLIAN,

¶6Circuit Judge.

¶7Bertha Brenner appeals from a judgment entered in the District Court for the Northern District of Iowa affirming a denial of supplemental security income (SSI) disability benefits by the Secretary of Health and Human Services (Secretary). For the reasons discussed below, we reverse and remand this case.

¶8On June 9,1980, appellant applied for SSI benefits alleging a disability due to mental retardation. After her claim was denied initially and on reconsideration, appellant appeared before an administrative law judge (ALJ); appellant was represented by a paralegal from a legal services organization. The ALJ denied benefits. The Appeals Council affirmed.

¶9At the time of the December 19, 1980, administrative hearing, appellant was forty-one years old. She testified that although she had a seventh grade special education, she had difficulty with reading, writing and mathematics. Appellant further testified to severely restricted daily activities. She has always lived with family members and can only perform household tasks, such as cooking or grocery shopping, with the assistance of others. Appellant has no relevant work experience. In addition, appellant testified that she was nervous and uncomfortable around people.

¶10At the request of the Secretary, a clinical psychologist, Gretchen Lee, evaluated appellant. Based on the results of a Weschler Adult Intelligence Scale (WAIS) examination, Ms. Lee reported that appellant had “borderline intellectual functioning”; appellant had a verbal scale IQ of 65, a performance scale IQ of 91, and a full scale IQ of 75. Ms. Lee believed that appellant’s “greatest deficit” was her lack of an attention span and lack of motivation. Ms. Lee concluded that appellant would not “tolerate employment other than in a sheltered workshop setting whereby goals are short term with a great deal of opportunity for social interaction.” Ms. Lee noted appellant “enjoyed social interaction” and “loved to talk.”

¶11At the request of appellant’s representative, psychologist Beverly Adams also evaluated appellant. Ms. Adams administered a battery of intelligence and psychological *98tests. Ms. Adams agreed with Ms. Lee’s assessment of appellant’s intelligence but disagreed as to appellant’s tolerance for social interaction. According to Ms. Adams, personality testing revealed that appellant was withdrawn, had “difficulty understanding and meeting expectations of social interaction,” and consequently maintained an “isolationist lifestyle.” Ms. Adams agreed with Ms. Lee’s conclusion that appellant would not tolerate employment other than in a sheltered workshop. Ms. Adams, however, believed that “[u]ntil such time as [appellant] becomes comfortable in social settings, the interaction necessary in such a workshop setting would act as a deterrent to participation.”

¶12After the hearing, the ALJ submitted a written hypothetical question to a vocational expert concerning the availability of competitive jobs in the national economy for appellant. The question assumed that appellant had borderline intelligence, limited educational skills, no past work experience, and “difficulty with social interaction.” Somewhat inconsistently, the question also assumed that appellant could “communicate and cooperate with others and exercise independent judgment.” The expert responded that a number of unskilled jobs, such as an office helper or cafeteria attendant, would be available. Appellant’s representative also submitted a hypothetical question to the expert. The representative’s question, however, deleted the AU’s reference to appellant’s alleged ability to work with others and exercise judgment and included a reference to her “isolationist lifestyle.” The expert then responded that no jobs would be available.

¶13The ALJ denied benefits, finding that appellant had the ability to perform substantial gainful activity, as evidenced by the vocational expert’s response to the AU’s hypothetical question. The ALJ noted “that is not to say that claimant ever will perform any of those jobs.”

¶14This court must affirm the findings of the Secretary if they are supported by substantial evidence. Brand v. Secretary of Department of Health, Education and Welfare, 623 F.2d 523, 527 (8th Cir. 1980). In this case, there is a total lack of evidence to support the finding that appellant is capable of substantial gainful activity. To the contrary, the evidence overwhelmingly supports the conclusion that appellant is disabled.

¶15The evidence from the psychologists is that appellant, under the most tolerant of conditions, could perhaps perform some sort of activity in a sheltered workshop. In Bailey v. Califano, 614 F.2d 146 (8th Cir. 1980), this court rejected speculation as to a claimant’s ability to engage in workshop activity as evidence of an ability to perform substantial gainful activity. We noted that the “regulations do provide that in certain circumstances, work in a sheltered workshop may provide evidence of skills and abilities that demonstrate an ability to engage in substantial gainful activity.”1Id. at 149 (emphasis in original). However, Ms. Bailey had “never worked in such a workshop and there [was] no evidence to indicate that such a workshop [was] available to her and that, if one were, her earnings in such a workshop would be attributable to her productive capabilities as distinguished from subsidies relating to her needs.”2Id.Such is also the case here.

¶16*99In addition, we reject the Secretary’s reliance on the vocational expert’s response to the ALJ’s hypothetical question as substantial evidence that appellant had the ability to perform a variety of unskilled jobs in a competitive work setting. A hypothetical question to a vocational expert must accurately set forth a claimant’s impairments and resulting functional limitations so that the expert can realistically assess the availability of jobs. Camp v. Schweiker, 643 F.2d 1325, 1332-33 (8th Cir.1981). Here, there is no record support for the ALJ’s assumption that appellant could cooperate and communicate with others and exercise independent judgment in a competitive work setting. Appellant’s testimony of her daily activities, which the ALJ expressly found credible, supports Ms. Adams’ conclusion that appellant was withdrawn and isolated from others. Even assuming record support (which we find lacking) for Ms. Lee’s comment that appellant “enjoyed social interaction” and “loved to talk,” that comment is hardly evidence of appellant’s ability to interact with others in a competitive work setting.

¶17Accordingly, the judgment is reversed and the case is remanded to the district court with directions to remand the claim to the Secretary to award appellant SSI benefits.3

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