                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2737
                        ___________________________

                                   John A. Higgins

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                  Commissioner, Social Security Administration

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

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

                             Submitted: April 10, 2018
                               Filed: August 1, 2018
                                   ____________

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’s1
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


      1
       The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
      2
       Bariatrics is the “branch of medicine concerned with the prevention and
control of obesity and allied diseases.” Stedman’s Medical Dictionary 203 (28th ed.
2006). As it was later described to the vocational expert in this case, Higgins’s chair
must be able to withstand his 425 pounds for six hours a day.

                                         -2-
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.

                                         -3-
                                   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
chair is a common accommodation in the workplace, the ALJ properly relied on this
testimony. Thus, the Commissioner continues, substantial evidence supports the
ALJ’s decision.

      Both parties cite to a decision of ours from more than 20 years ago. See Eback
v. Chater, 94 F.3d 410, 412 (8th Cir. 1996). The claimant there needed to use a
nebulizer at least four times a day. Id. at 411. The VE opined that providing special
times for nebulizer use “would be a reasonable accommodation that an employer
could or should make, particularly considering the ADA.” Id. at 412 (citation
omitted). In other words, the VE assumed that employers would allow breaks for
nebulizer use not because he knew that it was a common accommodation, but because
in the VE’s view, it would be reasonable for an employer to do so. See id. We

                                          -4-
reversed the denial of benefits.3 The VE had “never testified that the cited jobs
routinely offer employees breaks during an eight-hour work period as would be
necessary for [the claimant’s] condition.” Id. Otherwise stated, the VE did not testify
that, as the workplace actually existed at the time, providing such an
accommodation—ADA mandated or not—was prevalent.

       Not long after Eback, we again reversed a case for similar reasons. In
Whitehurse v. Apfel, the claimant had to elevate her foot two to three times daily for
a total of two hours a day. 158 F.3d 987, 987 (8th Cir. 1998). The ALJ held that the
claimant was not disabled, finding there was no reason “she could not elevate her foot
during work breaks and after work in the evening.” Id. at 987–88. We explained that
“[t]he ALJ failed to develop testimony that sedentary work is available that would


      3
       A statement by the Associate Commissioner of Social Security partly guided
our decision to reverse. That statement was:

      [The inquiry into other available jobs] is based on the functional
      demands and duties of jobs as ordinarily required by employers
      throughout the national economy, and not on what may be isolated
      variations in job demands (regardless of whether such variations are due
      to compliance with anti-discrimination statutes or other factors).
      Whether or how an employer might be willing (or required) to alter job
      duties to suit the limitations of a specific individual would not be
      relevant because our assessment must be based on broad vocational
      patterns . . . rather than on any individual employer’s practices. To
      support a . . . finding that an individual can perform “other work,” the
      evidence . . . would have to show that a job, which is within the
      individual’s capacity because of employer modifications, is
      representative of a significant number of other such jobs in the national
      economy.

Id. (alteration and ellipses in original). We emphasize that Eback’s quote of the
Associate Commissioner’s statement is guidance, but not controlling law.

                                         -5-
provide [the claimant] with work breaks,” and we remanded the case. Id. at 988
(emphasis added).

       The Fifth Circuit has affirmed the denial of benefits where the VE testified that
jobs that provide or would provide a needed accommodation do—in fact—exist. In
Jones v. Apfel, the claimant argued that the VE “improperly based his opinion on the
[ADA].” 174 F.3d 692, 693 (5th Cir. 1999). The Fifth Circuit stated that “a vocational
expert should not base his determination of the availability of jobs on the assumption
that the ADA requires an employer to accommodate an individual’s disability.” Id.
(citing Eback, 94 F.3d at 412). But the VE in Jones had “opined that specific jobs
existed that [the claimant] could perform and that would accommodate [his] need to
alternate between sitting and standing.” Id. (emphasis added). When the VE testified
that most employers of an assembly line job will accommodate sitting and standing
at will, this “suggest[ed] . . . that allowing for an employee to alter between sitting
and standing is a prevalent accommodation in the workplace.” Id. at 694 (citing
Eback, 94 F.3d at 412).

       These cases merely demonstrate that ALJs may properly rely on VE testimony
that a certain needed modification is part of the functional workplace. It makes no
difference that a particular workplace modification, such as a bariatric chair, might
be called an “accommodation” or even a “reasonable accommodation.” See 42 U.S.C.
§ 12111(9) (defining “reasonable accommodation” for ADA purposes). The use of
the phrase is immaterial. It also makes no difference that a particular modification or
accommodation is offered because the ADA requires employers to do so. What
matters is the functional workplace as it actually exists. If a particular modification
or “accommodation” has become prevalent and is commonly offered—whether
considered required by the ADA or not—an ALJ may, of course, consider this
evidence in making its determination.




                                          -6-
       Here, the VE testified based on her expertise that bariatric chairs are, in fact,
commonly provided to individuals in the workplace. See Admin. Rec. at 274 (“In my
experience [the use of a bariatric chair] is a common accommodation for an employer
to make for an employee.”). In other words, the VE provided evidence that offering
this particular accommodation is prevalent. As always, an ALJ may rely on VE
testimony about common workplace practices based upon the expert’s knowledge and
experience. See Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir. 2014) (citation omitted).
Thus an ALJ may properly rely on expert testimony about modifications that exist,
or are commonly provided, in the workplace. See id.; see also Whitehurse, 158 F.3d
at 988 (remanding to develop testimony as to whether “sedentary work is available
that would provide [the claimant] with work breaks”).4

       The VE also identified jobs that an individual who, like Higgins, needs a
bariatric chair, can perform. This VE testimony sufficiently indicates that the “cited
jobs routinely offer [the accommodation] as would be necessary for [the claimant’s]
condition.” Compare Eback, 94 F.3d at 412.

                                 III. Conclusion
      Substantial evidence supports the ALJ’s finding that jobs exist in the national
economy that Higgins can adjust to, and that finding did not result from an error of
law. See Byes, 687 F.3d at 915. We therefore affirm.
                      ______________________________


      4
        This is true even though the VE here answered affirmatively when asked if the
provision of a bariatric chair would be an “accommodation” as defined by the ADA.
Again, the word “accommodation” itself is not problematic. An item, such as a
bariatric chair, can be “a modification or adjustment of a work environment” while
at the same time be commonly provided to employees in the workplace. See Admin.
Rec. at 270 (citing 42 U.S.C. § 12111). The VE testified the bariatric chair is
commonly provided in the workplace, and the ALJ properly considered this
testimony.

                                          -7-
