                        United States Court of Appeals

                           for the eighth circuit


                                 ___________

                                 No. 96-2529
                                 ___________


Belinda Flanery,                      *
                                      *
           Appellant,                 *
                                      *   Appeal from the United States
     v.                               *   District Court for the Eastern
                                      *   District of Arkansas.
Shirley S. Chater,                    *
Commissioner of the Social            *
Security Administration,              *
                                      *
           Appellee.                  *

                                 ___________

                   Submitted: January 13, 1997

                         Filed: April 25, 1997
                                 ___________

Before RICHARD S. ARNOLD, Chief Circuit Judge, BEAM, Circuit Judge, and
     ALSOP,1 District Judge.
                              ___________


BEAM, Circuit Judge.


     Belinda Flanery appeals the denial of Supplemental Security Income
(SSI) benefits.    Because we find the Commissioner’s decision is not
supported by substantial evidence in the record as a whole, we reverse and
remand for an award of benefits.




     1
      The Honorable Donald D. Alsop, United States District Judge
for the District of Minnesota, sitting by designation.
I.   BACKGROUND


       Flanery is a twenty-six-year-old woman with a seizure disorder and
borderline intellectual functioning.                   She suffers from both grand mal
            2                                3
seizures and psychomotor seizures.                She has a ninth-grade education and
has never been employed.            Flanery applied for SSI benefits in 1992,
alleging disability since 1983 due to epilepsy and mental problems.                   Her
application      was   denied    initially       and   on   reconsideration.   She   then
requested a hearing before an administrative law judge (ALJ).


       At the hearing, Flanery testified that on most days she has several
nervous spells or “fits.”        Whenever one of these “spells” occurs, her hands
draw up, her eyes roll, and she cannot comprehend what is happening around
her.       These episodes last for about a minute following which she has no
recollection of them and has to rest for half an hour.                         Her daily
activities, on good days, include preparing meals for her three children
and light housework.            She said these activities sometimes provoke a
“spell.”        She is so tired after housecleaning that she suffers severe
headaches and sometimes seizures.         As a result, she stated that she “lays
around” most of the time.         She is unable to drive.




       2
      A grand mal seizure is characterized by a loss of
consciousness with generalized tonic-clonic seizures. Dorland’s
Illustrated Medical Dictionary 567 (28th ed. 1994). A tonic-
clonic seizure is a spasm consisting of a convulsive twitching of
the muscles. Id. at 1719.
       3
      Psychomotor seizures are characterized by variable degrees
of impairment of consciousness and performance of a series of
coordinated acts which are out of place, bizarre, and serve no
useful purpose, for which the victim is amnesic. Dorland’s
Illustrated Medical Dictionary at 567.

                                             -2-
     Flanery’s husband also testified at the hearing.           He stated that he
witnessed eight “spells” in a one-hour period the previous day.                   His
description of the spells was similar to that of his wife.              He estimated
that the spells generally occur five or six times a day, more often when
she is active.     The record contains statements of other people who have
witnessed one or more of Flanery’s “seizures,” “convulsions,” “blackouts,”
or “spells.”     These witnesses described Flanery trembling, staring into
space, jerking her head, and being unable to remember the episode.                 In
addition, the record shows that Dr. Russell L. Dixon, a psychologist, also
witnessed Flanery having both a grand mal seizure and a shorter jacksonian
seizure,4 during which she stared ahead blankly, ground her teeth, rotated
her head and jerked slightly several times.


     The medical evidence shows that Flanery suffers from both grand mal
seizures and psychomotor or focal seizures.         She was first treated for a
seizure disorder when she was thirteen years old.        She was treated with an
anti-convulsant    medication   that   apparently   controlled     her    grand   mal
seizures.   In 1991, Flanery’s treating physician, Dr. Gary R. Goza, noted
that Flanery continued to suffer from “spells” involving a sudden loss of
memory   and   comprehension.    The   frequency    of   the   spells    varied--she
sometimes would not have any for a few days and sometimes had several in
a day.   Dr. Goza’s diagnosis was “seizure disorder, generalized




     4
      Jacksonian epilepsy is characterized by focal motor
seizures with unilateral clonic movements (alternate contraction
and relaxation of muscles) that start in one group of muscles and
spread systematically to adjacent groups. Dorland’s Illustrated
Medical Dictionary at 567. A focal motor seizure is a simple
partial seizure consisting of a spasm of a muscle group. Id. at
1503.

                                       -3-
seizures appear to be well-controlled,” although at that time he questioned
whether Flanery might still be having partial seizures.5
        An EEG later in 1991 showed abnormal brain function.         Dr. Goza noted
a pattern of brain activity which is “sometimes seen in patients with
generalized seizure disorders.”           In a September 1992 letter to the state
disability office, Dr. Goza stated that Flanery suffers from “episodes of
transient inability to respond, partial complex seizures, and occasional
grand mal seizures.”          In a February 1993 letter, Dr. Goza stated that
Flanery suffers from partial complex seizures that last about fifteen
seconds and occur several times a week.          In December 1993, Dr. Goza’s notes
again indicate that Flanery “otherwise continues to have episodes almost
every day where she feels her eyes are fluttering and she is unable to
respond appropriately for a short time but doesn’t lose consciousness.”


        A neurologist, Dr. Peggy J. Brown, examined Flanery in 1994.                 Dr.
Brown       reported   that   Flanery’s   “seizure   disorder   sounds   like   it    is
consistent with complex partial seizures with secondary generalization.”
Dr. Brown also noted that the results of Flanery’s August 1994 EEG were
consistent with complex partial epilepsy and noted that Flanery’s seizures
were “not completely




        5
      There are two types of partial seizures: 1) a complex
partial seizure is associated with a disease of the temporal lobe
and characterized by varying degrees of impairment of
consciousness; the patient performs automatisms and is later
amnesic for them; 2) a simple partial seizure is the most
localized type of partial seizure; symptoms are varied and
include motor symptoms as in a focal motor seizure. Dorland’s
Illustrated Medical Dictionary at 1503.

                                           -4-
controlled on Tegretol or Dilantin.”6      In December 1994, Dr. Brown again
characterized Flanery’s seizures as “poorly controlled.”


     A vocational expert testified at the hearing.      He was asked whether
there were jobs in the national economy that a person of Flanery’s age and
work experience, with seizures controlled by medication, could perform if
she were limited to “unskilled work which consists of nothing more than
simple repetitive tasks done under simple direct concrete supervision” with
interpersonal contact limited to “no more complex than that necessary to
carry out the simple and direct concrete instructions” and where the work
“can be performed without working at heights, around dangerous machinery,
which does not require driving of a vehicle nor the carrying of a firearm.”
He responded that such jobs, for example those of house cleaners or child
care workers, exist in the national economy.      The vocational expert was
then asked, by Flanery’s counsel, whether jobs existed for a person of
Flanery’s age and experience who had infrequent grand mal seizures and four
to five petit mal seizures7 a day that required her to rest for up to
thirty minutes after each seizure.   The vocational expert stated that there
were no such jobs in the national economy.
     The ALJ found that although Flanery suffers from a severe seizure
disorder and borderline intellectual functioning, she does not have a
disorder that meets or equals the listing of




     6
      Tegretol and Dilantin are anti-convulsant and anti-
epileptic medications. Physician’s Desk Reference 603 & 1837
(49th ed. 1995).
     7
      A petit mal seizure, also known as an absence seizure,
consists of a momentary break in consciousness of thought or
activity, often accompanied by automatisms or clonic movements,
especially of the eyelids. Dorland’s Illustrated Medical
Dictionary at 1502.

                                     -5-
presumptively disabling impairments.            In making that finding, he noted that
“the medical record shows that the claimant’s seizure disorder is under
good control with Dilantin” and that “the medical findings that are present
are not consistent with the disabling level of seizures alleged by the
claimant.”    He discounted Flanery’s testimony regarding daily seizures as
inconsistent     with    her     daily    activities    and    found   her    “subjective
allegations are not borne out by the overall record and are found not to
be fully credible.”          The ALJ also discounted Flanery’s husband’s account
of   the   seizures     as   based   on   an    uncritical    acceptance     of   Flanery’s
complaints and motivated by a desire to help her obtain benefits.                   The ALJ
thus found that Flanery has the residual functional capacity to perform a
wide range of medium work, such as that of a child care worker or a house
cleaner.     The Appeals Council affirmed the decision, as did the district
court.


      On appeal, Flanery contends that the ALJ’s decision is not supported
by substantial evidence.         She argues that her impairment meets or equals
the presumptively disabling condition listed in Section 11.03 of the
Appendix 1 to Subpart P of 20 C.F.R. Part 404 (“the Listings”) which
describes disability by reason of epilepsy with minor motor seizures.8




      8
      Flanery also suffers from epilepsy with grand mal seizures
as described in Section 11.02 of the Listings. However, the
record supports the ALJ’s finding that Flanery’s grand mal
seizures are controlled by medication and Flanery does not
dispute that finding. Accordingly, her impairment does not meet
or equal the disability listed in Section 11.02.

                                               -6-
II.   DISCUSSION


        Our task on appeal is to determine whether the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995).        In our review of the
record, we thus consider evidence that detracts from the decision as well
as evidence that supports it.        Id.   Substantial evidence is less than a
preponderance, but enough that a reasonable mind might find it adequate to
support the conclusion.       Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.
1993).


        Under the Commissioner’s regulations, the disability determination
involves step-by-step analysis of any current work activity, the severity
of the claimant’s impairments, the claimant’s residual functional capacity
and age, education and work experience.       20 C.F.R. § 404.1520(a); Braswell
v. Heckler, 733 F.2d 531, 532 (8th Cir. 1984).           If the claimant suffers
from an impairment that is listed in the Listings or is equal to such a
listed impairment, the claimant will be determined disabled without
considering age, education, or work experience.         Braswell, 733 F.2d at 533.



        To be considered presumptively disabled under Section 11.03 of the
Listings, a claimant must have seizures that are documented by an EEG and
by detailed description of a typical seizure pattern with all associated
phenomena.    20 C.F.R. Pt. 404, App. 1, Subpt. P § 11.03 (1996).            These
seizures must occur more frequently than once a week in spite of at least
three    months   of   prescribed   treatment.    Id.     The   seizures   must   be
accompanied by an alteration




                                        -7-
of   awareness          or   loss   of     consciousness     and    transient      postictal9
manifestations of unconventional behavior or significant interference with
activity during the day.            Id.


         Flanery’s condition meets all of these requirements.                    Her seizures
are documented by abnormal EEG results.               Flanery and her husband testified
that her seizures occur more often than once a week.                            The Flanerys
testified        that    the    seizures      involve    alteration     of     awareness    and
significantly interfere with daily activities.                This testimony is further
supported by the statements of other seizure witnesses and by the report
of   a       doctor   who    witnessed    a   seizure.     None    of   that    testimony    is
contradicted in the record.


         Furthermore, the medical evidence uniformly demonstrates that Flanery
has seizures that are consistent with partial complex epilepsy.                       The ALJ
placed inordinate emphasis on an isolated statement by Dr. Goza in 1991
that Flanery’s seizures were controlled by medication.                       Read in context,
that statement refers only to her grand mal seizures and not to her
“spells” or petit mal seizures.               The statement is immediately followed by
a sentence regarding the continued occurrence of the “spells.”                       Although
initially hesitant to label the spells as seizures, Dr. Goza later
diagnosed the episodes as partial complex seizures following Flanery’s
abnormal EEG.


         In addition, the ALJ improperly discounted medical diagnoses as
having been based only on Flanery’s own recitation of events.                     A patient’s
report of complaints, or history, is an essential diagnostic tool.                         See,
e.g., Brand v. Secretary of the Dep’t of




         9
      Postictal means occurring after a seizure or sudden attack.
 Dorland’s Illustrated Medical Dictionary at 1340.

                                                -8-
Health, Educ. and Welfare, 623 F.2d 523, 526 (8th Cir. 1980) (“[a]ny
medical diagnosis must necessarily rely upon the patient’s history and
subjective complaints”).   There is nothing in this record to suggest that
Flanery’s medical professionals should have doubted Flanery’s word.    Her
claimed symptoms are consistent with objective tests (the EEG), the nature
of her disorder, and eyewitness testimony.


     Moreover, we find that Flanery’s account of her daily activities is
not inconsistent with a disabling seizure disorder. She testified that,
although she can sometimes care for her own needs and those of her three
children, her days are often interrupted by seizures and by her need to
rest afterward.   These episodes may not be totally disruptive in a home
environment, but could hardly be accommodated in the workplace.   In short,
the record overwhelmingly supports a finding of disability.10
     Because we find Flanery disabled on this record, we must consider the
remedy.   We find that the record supports an award of benefits.    Even if
Flanery’s condition did not meet the Listings, the evidence shows that
there would be no jobs in the national economy that Flanery could perform.
If the record contains substantial evidence supporting a finding of
disability, a




     10
      We note that this action could also be reversed on the
ground that the hypothetical posed to the vocational expert did
not contain all of Flanery’s impairments that are supported by
the record. See, e.g., Stout v. Shalala, 988 F.2d 853, 855 (8th
Cir. 1993) (the ALJ’s hypothetical must include those impairments
that are substantially supported by the record). Flanery’s
partial complex seizures are supported by the record and she was
entitled to have the vocational expert consider them along with
her other impairments. In light of our disposition, and because
Flanery’s counsel elicited evidence of the effect of the partial
complex seizures on her employment prospects, we need not further
discuss the issue.

                                    -9-
reviewing court may reverse and remand to the district court for entry of
an order granting benefits to the claimant.      Andler v. Chater, 100 F.3d
1389, 1394 (8th Cir. 1996).       Under the circumstances, we find further
hearings would merely delay benefits; accordingly, an order granting
benefits is appropriate.    Id.


III.   CONCLUSION


       For the reasons stated above, we reverse and instruct the district
court to remand to the Commissioner for an award of benefits.


ALSOP, District Judge, dissenting.
       Because I do not agree with the majority that the substantial
evidence in the record shows that Flanery meets all of the requirements
under Section 11.03 of the Listings, I respectfully dissent. As the
majority notes, Listing 11.03 lays down the requirements for Epilepsy-Minor
Motor seizures. It provides:


       Epilepsy-Minor motor seizures (petit mal, psychomotor, or
       focal), documented by EEG and by detailed description of a
       typical seizure pattern, including all associated phenomena;
       occurring more frequently than once weekly in spite of at least
       3 months of prescribed treatment. With alteration of awareness
       or loss of consciousness and transient postictal manifestations
       of unconventional behavior or significant interference with
       activity during the day.


As the majority points out there is evidence of seizures documented by
abnormal EEG results, however,    the substantial evidence on the record does
not show that Flanery has experienced these seizures with the frequency
required in the listing. The majority found that




                                     -10-
the testimony of Flanery and her husband showed that she had seizures
occurring more than once weekly. The ALJ discredited the testimony of
Flanery’s husband finding it was based upon an uncritical acceptance of
Flanery’s complaints and motivated in part by the desire to see her obtain
benefits.   Tr. 22. He discounted Flanery’s subjective complaints, finding
they were inconsistent with the medical findings and Flanery’s functional
limitations. Id. Questions of credibility are for the trier of fact and the
Court usually defers to such a finding if the ALJ explicitly discredits a
claimant’s testimony and gives good reason for doing so. See Dixon v.
Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).   Here the ALJ did both.


     The majority found the testimony of Flanery and her husband was
supported by statements from other witnesses and a doctor who witnessed a
seizure.    While these statements show that Flanery experienced seizures,
none show that the seizures occurred more frequently than one weekly.


     I cannot agree with the majority that the medical evidence shows that
Flanery meets the 11.03 Listing. The majority relies upon a statement made
by Dr. Goza in 1991 to establish that Flanery has partial seizures. I
disagree that Dr. Goza’s 1991 statement supports such a finding. Even if
his statement that Flanery’s “seizures appear to be well controlled”, Tr.
180, is understood as the majority proposes to refer only to Flanery’s
grand mal seizures, the statement does not indicate that Flanery was
experiencing uncontrolled frequent petit mal seizures. Dr. Goza indicated
that he had “some question whether she still may be having partial
seizures”. Id.    A statement Dr. Goza made in 1993 reiterated his doubts
about whether Flanery was experiencing partial seizures. Tr. 246. In that
statement he observed that it




                                   -11-
was difficult to be certain whether episodes Flanery claimed to be having
almost daily, in which “her eyes are fluttering and she is unable to
respond appropriately for a short time but doesn’t lose consciousness,” are
partial seizures. Id.


        The only other medical evidence offered to show that Flanery meets
the 11.03 Listing is a statement made in August 1994 by a neurologist, Dr.
Brown, who after talking with Flanery and reviewing her history stated that
her seizures had been poorly controlled on the drug she was taking. Tr.
252.    The ALJ found that the neurologist’s statement was based upon
Flanery’s subjective complaints and discredited it. As the ALJ had found
the testimony of frequent uncontrolled seizures from Flanery and her
husband was not credible, the ALJ could properly conclude in the absence
of medical evidence that a report based upon such testimony was unreliable.


        The evidence of Flanery’s daily activities also shows she does not
meet the listing requirement. The record shows that she takes care of a
house    and three children, and does the cooking, laundry, and other
household chores. She has no restrictions on daily activities from her
physician, other than her use of an automobile, heavy machinery, and
firearms.


        The substantial evidence in the record does not show that Flanery
meets the listing requirements of 11.03 and therefore I would affirm the
district    court’s   affirmance   of   the    denial   of   SSI   benefits   by   the
Commissioner based upon substantial evidence in the record as a whole.




                                        -12-
A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                            -13-
