John A. Higgins Plaintiff- Appellant
Commissioner, Social Security Administration Defendant-Appellee
Submitted: April 10, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
social security case turns on whether the administrative law
judge (ALJ) properly relied on expert testimony about an
accommodation commonly found in the workplace. Concluding the
reliance was proper, we affirm the district
court'sdecision upholding the denial of benefits.
Higgins suffers from bipolar disorder, sleep apnea, and Type
II diabetes. His conditions are exacerbated by obesity.
Higgins applied for a period of disability and disability
insurance benefits, as well as supplemental security income,
alleging that he became unable to work in 2011. Higgins has
two master's degrees and almost enough credits for a
third. He has previously worked as a part-time professor for
an online university. He lives by himself. He can perform
basic life activities, such as drive, shop, prepare meals,
clean his apartment, watch television, go for occasional
walks, talk with friends, and go to weekly prayer meetings.
his claim was denied, Higgins obtained review before an ALJ
at a hearing. A few months later, but before the ALJ issued a
decision, Higgins's physician prescribed him a bariatric
chair. The ALJ received this new evidence into
directed interrogatories to a vocational expert (VE)
regarding the additional evidence. Specifically, the ALJ
asked the VE to assume a hypothetical individual like
Higgins, with certain limitations, including that "while
seated, the individual would require a bariatric chair
sufficient to withstand 6 hours per day of the claimant's
425 pounds." Admin. Rec. at 269. He also asked the VE
whether there are available occupations for individuals with
these limitations. The VE responded affirmatively,
identifying three sedentary occupations and the approximate
number of such jobs available nationally and regionally.
Finally, the ALJ asked whether a bariatric chair is an
accommodation, defining it, as Higgins requested, as
"the acquisition of new equipment not normally found in
the workplace, or the modification of equipment or devices
normally found in the workplace, or more generally the
modification or adjustment of a work environment to enable
the individual to function in the job." Id. at
270 (citing 42 U.S.C. § 12111). The VE answered:
"This would be an accommodation wherein the employer
would need to acquire the bariatric chair. In my experience
this is a common accommodation for an employer to make for an
employee." Id. at 274.
through the five-step sequential evaluation process, the ALJ
denied Higgins benefits. See 20 C.F.R. §
416.920(a)(4). He found that Higgins had not engaged in
substantial gainful activity since the onset date, and he
found that Higgins has severe impairments but that those
impairments do not meet or equal the severity of a listed
impairment. The ALJ also formulated Higgins's residual
functional capacity (RFC) to include the need for a bariatric
chair, although noting that need was "somewhat
dubious." Admin. Rec. at 13. Higgins could not perform
any of his past relevant work, but the ALJ found that Higgins
was not disabled because, under step five of the evaluation
process, Higgins could perform jobs existing in the economy.
The ALJ explained that "even if the claimant required a
bariatric chair, the vocational expert indicated this is a
common accommodation in the workplace and, even with this
added to the claimant's residual functional capacity, she
was able to provide a significant number of jobs in the
regional and national economies." Id. at 13.
sought but was denied review by the Appeals Council, making
the ALJ's decision final and subject to judicial review.
See Thomas v. Berryhill, 881 F.3d 672, 674 (8th Cir.
2018) (citing Combs v. Berryhill, 878 F.3d 642, 645
(8th Cir. 2017)). The district court affirmed the denial of
benefits. Higgins appeals.
parties agree that the issue before us is whether the Social
Security Commissioner carried her burden of proving the
existence of other jobs in the economy that Higgins can
perform. This turns, they also agree, on whether the ALJ
properly relied on the VE's testimony about the
availability of the identified jobs. Although we review the
district court's decision de novo, we "reverse the
findings of the Commissioner only if they are not supported
by substantial evidence or result from an error of law."
Byes v. Astrue, 687 F.3d 913, 915 (8th Cir. 2012)
contends that the ALJ's decision rested on an assumption
derived from the VE's interrogatory answer that employers
in the identified occupations would comply with the Americans
with Disabilities Act (ADA). Higgins argues that the
ALJ's reliance on the VE's opinion necessarily
assumed ADA compliance by potential employers. Higgins
contends this was error and requires reversal and remand. The
Commissioner, on the other hand, points out that the
ALJ's interrogatory to the VE included the need for a
bariatric chair. Because the VE answered that significant
jobs exist that the individual could perform, and she opined
that a bariatric ...