Terry A. ZENKER, Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Appellee

872 F.2d 268, 1989 U.S. App. LEXIS 4975, 1989 WL 34569
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 14, 1989
Docket88-5204
StatusPublished
Cited by7 cases

This text of 872 F.2d 268 (Terry A. ZENKER, Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terry A. ZENKER, Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Appellee, 872 F.2d 268, 1989 U.S. App. LEXIS 4975, 1989 WL 34569 (8th Cir. 1989).

Opinions

BEAM, Circuit Judge.

Terry A. Zenker appeals from the district court’s order affirming the decision of the Secretary of Health and Human Services to deny his applications for disability insurance benefits and Supplemental Security Income (SSI) benefits under Titles II and XVI of the Social Security Act. The sole issue on appeal is whether there is substantial evidence in the record to support the finding of the Secretary that Zenker is not entitled to benefits under the Act. As we are convinced that substantial evidence does support this decision, we affirm.

I. BACKGROUND

Zenker filed his application for disability and SSI benefits on September 16, 1986, alleging disability as of June 1,1983, due to a learning impairment and a speech impediment. Zenker also suffers from chronic bronchitis, a seizure disorder, hypertension, alcoholism, and Klinefelter’s syndrome. The record indicates that Zenker, now 48 years old, is only 5'2" tall and weighs approximately 113 pounds.

It appears that Zenker attended school until age 17 or 18, having had to repeat the third and fourth grades once, and the fifth grade twice. He testified that he did not complete the eighth grade but the record is unclear as to whether Zenker spent eight actual years in school or if he entered eighth grade and failed to finish out that school year. Nevertheless, it is conceded by the Secretary that Zenker functions within the borderline mental range of ability-1

Zenker testified at the administrative hearing that in the past he worked as a cook in several restaurants but was unable to continue this work due to alcoholism and physical limitations brought on by hernias. He first received alcohol dependency treatment at a North Dakota State Hospital in 1982. Although Zenker can now be categorized as a recovering alcoholic, he has had at least two alcohol-related hospitalizations since that time. When hospitalized in July 1983, Zenker weighed only 87 pounds and suffered from malnutrition and tuberculosis. He also underwent hernia operations in 1982, 1983 and 1985.

In November 1982, Zenker began vocational training at Pride Industries, a rehabilitation center for developmentally disabled adults. He remained in Pride’s rehabilitation program until March 1984, at which time he was placed by Pride with the Bismarck Elks Lodge as a dishwasher. Still employed by the Lodge, Zenker works approximately twenty hours a week at [270]*270$3.35 an hour, washing pots and pans, scrubbing floors, wrapping baked potatoes, baking garlic bread and placing seafood on ice.

An AU held that Zenker’s borderline mental functioning constitutes a severe impairment, but not severe enough to constitute an impairment listed in Appendix 1 to Subpart P, Part 404. He also found that Zenker’s speech impediment and episodic alcoholism imposed no significant limitations on his work-related activities. The AU determined that Zenker was able to perform unskilled, simple, repetitive work at all exertional levels. Based on the fact that Zenker was able to work at the Elks Lodge for approximately twenty hours a week, the AU held that Zenker could work an eight-hour day, five days a week. Thus, although Zenker had not engaged in substantial gainful activity since 1983, the AU felt that Zenker’s work activity at the Elks Lodge indicated that he could do so in the future.

II. DISCUSSION

Zenker argues on appeal that substantial evidence does not exist to support the AU’s finding that Zenker could function as a dishwasher on a full-time basis. We disagree.

If a claimant is not presently engaged in substantial gainful activity but is not precluded from doing so by physical or mental impairments, the Secretary will find no disability. 20 C.F.R. § 404.1571. To determine whether a claimant can engage in substantial gainful activity, the Secretary will examine the claimant’s earnings, the nature of his or her work, how well the claimant performs, and the amount of time spent working. Burkhalter v. Schweiker, 711 F.2d 841, 844 (8th Cir.1983). Present levels of work activity may show that a claimant is able to do more work than he or she is actually doing. 20 C.F.R. § 404.1571.

The AU found, in the present case, that Zenker’s ability to spend 20 hours a week at the Elks Lodge washing dishes and his satisfactory performance at this job indicated that Zenker could engage in substantial gainful activity. Our role on appeal is to determine whether that decision is supported by substantial evidence on the record as a whole. Clarke v. Bowen, 843 F.2d 271, 272 (8th Cir.1988). The substantiality of evidence must take into account whatever in the record detracts from its weight. Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir.1987).

The record establishes that Zenker works three days a week for approximately six and one-half hours each day. Thus, he works approximately twenty hours a week. Zenker receives the minimum wage of $3.35 an hour. In 1983, Zenker earned $1,7433.00; in 1984, he earned $3,799.00; and in 1985 he earned $2,037.00. In the first four months of 1987, Zenker had earned only $595.00. As the AU notes, Zenker’s earnings have consistently averaged under $300.00 per month. See 20 C.F.R. § 404.1574(b)(2)(vi) (presumption that claimant has engaged in substantial gainful activity if earnings average more than $300 a month); and 20 C.F.R. § 404.1574(b)(3)(vi) (presumption that claimant has not engaged in substantial gainful activity if earnings averaged less than $190 a month). Thus, the AU correctly found that Zenker has not engaged in substantial gainful activity since 1983. The issue presented is whether Zenker’s current level of work activity indicates he could tolerate working enough hours as a dishwasher to average more than $300 a month.

Bernice Garen, Zenker’s supervisor at the Elks Lodge, reported that Zenker misses a lot of work due to illness, needs assistance with lifting 100-pound sacks of potatoes, and needs to be reminded not to smoke in the kitchen. Although she felt Zenker needs supervision, she felt he requires no more than any of the other Elks employees performing similar work. She noted that after a busy six-hour work shift, Zenker appears “very played out,” and for that reason, she does not believe he could work full time at his job.

Zenker’s wife testified that she also felt Zenker is unable to work full time at the Elks Lodge. She stated that after a busy [271]*271work shift Zenker’s arms and legs are weak and his neck is very tense. He comes home with headaches and, on occasion, stomach cramps. She related that Zenker often returns home angry because his coworkers treat him like a child when his speech defect makes it difficult for them to understand him.

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872 F.2d 268, 1989 U.S. App. LEXIS 4975, 1989 WL 34569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-a-zenker-appellant-v-otis-bowen-secretary-of-health-and-human-ca8-1989.