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Higgins v. Commissioner, Social Security Administration

United States Court of Appeals, Eighth Circuit

August 1, 2018

John A. Higgins Plaintiff- Appellant
v.
Commissioner, Social Security Administration Defendant-Appellee

          Submitted: April 10, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

          SMITH, CHIEF JUDGE.

         This 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's[1]decision upholding the denial of benefits.

         I. Background

         John 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.

         After 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.[2] The ALJ received this new evidence into the record.

         The ALJ 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.

         Proceeding 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.

         Higgins 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.

         II. Discussion

         The 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) (citations omitted).

         Higgins 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 ...


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