DeLorme v. Sullivan, 89-35661

• Decision Date: 13 July 1990
• Docket Number: No. 89-35661,89-35661
• Parties: , Unempl.Ins.Rep. CCH 15871A Ronald L. DeLORME, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 841

924 F.2d 841

32 Soc.Sec.Rep.Ser. 285, Unempl.Ins.Rep. CCH 15871A

Ronald L. DeLORME, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 89-35661.

United States Court of Appeals Ninth Circuit.

Submitted July 13, 1990 ^*.

Decided Jan. 23, 1991.

Teresa L. Sturm, Hopkins, French, Crockett, Springer & Hoopes, Idaho Falls, Idaho, for plaintiff-appellant.

Richard H. Wetmore, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the District of Idaho.

Before FLETCHER, FERGUSON and FERNANDEZ, Circuit Judges.

FERGUSON, Circuit Judge:

Ronald DeLorme injured his back repeatedly during and after his employment as an interstate bus driver. He appeals from the district court's grant of summary judgment in favor of the Secretary, Department of Health and Human Services ("the Secretary") rejecting his application for disability benefits. We reverse and remand.

I. FACTS

DeLorme was a bus driver employed by Greyhound when he sustained his first back injury while changing a tire in 1977. He wanted to resume work as a driver, and returned to work although his orthopedist warned that the physical strain at the job might create further problems. In fact, he suffered repeated back problems. After a hospitalization in October 1977, he was diagnosed as having a ruptured intervertebral disc. He was off work for two years but returned in 1980. In August 1980 he was riding as a passenger in the rear seat of a Greyhound bus which was struck from behind by a truck. His back was reinjured, and he was diagnosed as having degenerative disc disease and lumbrosacral strain.

Medical examinations since 1980 have consistently reported degenerative disc disease with some narrowing of disc space. Almost all examinations have also reported some weakness of dorsiflexion of the right foot. DeLorme was hospitalized repeatedly for pain and back problems. ¹ In March 1985, Dr. Vinson, his treating physician, noted a 50-pound lifting limitation and said DeLorme still could not sit any length of time. In April and May 1985 an orthopedic surgeon found a 50% narrowing of the disc space and moderate limitation of motion in the lumbar spine. Although surgery was considered at one time, his doctors found it was not indicated ² and treated him with physical therapy, muscle relaxants, and pain medication; exercise and retraining, rather than surgery, were emphasized in 1985. In July 1985 records show that DeLorme reinjured his back, was given a cane, and continued physical therapy.

DeLorme had also been treated for depression during this period. The first comprehensive evaluation of his mental state which appears in the record took place in 1986. ³ This psychological assessment by Dr. Groberg found severe depression based on his inability to work. His psychological test scores indicated a "profound and suicidal depression." He was limited in daily activities in both occupational and social spheres, and could not relate to others other than as an invalid who had lost his capacity to be a productive citizen. The psychologist concluded DeLorme suffered from: "a long term functional nonpsychotic [disorder] manifested by persistent depressive affect with suicidal preoccupation, sleep and eating disturbance and weight loss. Because of this persistent [disorder], he is unable to work or to function effectively in interpersonal relationships."

However, the only accounts of his depression from before 1986 appear in the records of the physicians who treated him for his back problems. Dr. Vinson noted depression as early as 1977 and noted that DeLorme was hospitalized in February 1981 because of depression with "dissociative state." He was discharged to continue with both physical therapy and psychiatric counseling. DeLorme appears to have continued in psychotherapy until November 1981. ⁴ Depression was repeatedly noted by his physicians; ⁵ however, there are no psychiatric or psychological evaluations in the record until the exam in 1986.

DeLorme attended vocational training in traffic and transportation management from 1982-1983. In 1985 he began training in business machine repair. At the hearing, he described commuting 50 miles each way to school, sharing driving so that he did not drive the entire distance. The school had installed a turntable at his workstation so that he could turn machines which would be too heavy for him to lift independently. Because he could not perform necessary lifting, he did not expect to be able to work in this field. He began the training through a vocational rehabilitation program because he believed it was a career he could undertake; however, he continued because it helped his mental disposition.

DeLorme first applied for benefits in 1982; that application was denied. His insured status expired September 30, 1984. His second application, in October 1984, was denied later that month. DeLorme did not appeal either of these denials; however, the Secretary has since withdrawn the defense of administrative res judicata. ⁶ The current application was filed in August 1985 and denied in September 1985.

In July 1986, a hearing was held before an administrative law judge on DeLorme's application for benefits. DeLorme submitted medical records from physicians who had treated him or examined him in regard to his back injury and subsequent pain, and the psychiatric assessment performed in 1986. He testified regarding his medical history and his present limitations. He testified that he had a twenty-five-pound weight restriction on lifting, and that he could sit in one position no more than thirty to forty-five minutes. On further questioning, he said he was capable of alternately sitting and standing for up to approximately one hour. ⁷ DeLorme also testified that he had used a cane since 1983, and that he wore a lumbar brace prescribed by several doctors, including Dr. Friedman, whom he had seen at the time he was injured. He also mentioned some loss of dexterity in his fingers, which had been found in testing in 1982. However, no such tests are in the record, and the only reference to such problems in the records came when he told one doctor that he had formerly had some numbness in his fingers which had since improved.

A vocational expert testified regarding DeLorme's capacity to work. The ALJ posed the following hypothetical for the vocational expert:

Considering the Exhibits and the testimony and considering that Mr. DeLorme can lift no more than 25 pounds--can sit at one time no longer than 45 minutes, can walk no longer than 45 minutes and cannot walk on rock or extruded ground and must use at least for an extensive walking a prosthesis or a walking stick. Also considering a background of high school plus two years of college in traffic management and one year in business systems repair. And considering the medical disability.... Would there be any positions in the economy that would be available in work that he could do?

The vocational expert said he had "found one sedentary job in a related area that I could consider," and described the position of "taxicab starter" (dispatcher). There were less than five such positions in the metropolitan area and four to five thousand such positions in the national economy. The taxicab starter position was sedentary and met the specified limitations on lifting. On further questioning by DeLorme's attorney, however, the expert said it would be "very difficult" for DeLorme to work at this position. His references to the hypothetical demonstrated some uncertainty regarding DeLorme's limitations; ⁸ however, he emphasized the limitations imposed by the need to alternately sit and stand.

When asked about additional positions which might be possible for DeLorme, the vocational expert stated that the position of cashier was sedentary in nature, but that he was unsure of its suitability because DeLorme required "a lot of leeway ... to stand up from the job and walk around.... [T]here are many cashier positions where they are not allowed that freedom--to stand and sit. That would limit it." Although there were many cashier jobs in the national economy, there were only three to four hundred such positions in the area of Idaho where DeLorme lived, a number which would be additionally limited by DeLorme's restrictions on standing and sitting to "a much smaller [number] ... really not very many, in my opinion." Further questions by DeLorme's attorney focused on difficulties with manual dexterity, which had not been part of the ALJ's hypothetical. The vocational expert testified that this would also make it extremely difficult for DeLorme to perform a cashier's work.

The ALJ found that DeLorme was not disabled. He summarized part of DeLorme's testimony regarding his training program incorrectly, stating that claimant "anticipates completing course work in the near future in electronics and expects to find employment, although he has difficulty because of his limitations." The ALJ noted DeLorme's testimony indicated he could not lift objects heavier than 20 pounds or stand longer than an hour; however, because of DeLorme's ability to continue the business machine training program, the ALJ concluded he could perform a wide range of sedentary work. ⁹ He found DeLorme's impairments were not equal to any listed in the Listing of Impairments; that the objective findings ¹⁰ did not "contra-indicate alternate sitting and standing, with lifting and carrying of objects no heavier than 10 pounds"; and that DeLorme had the residual functional capacity (RFC) to perform the physical exertion and nonexertional requirements of work except for "those set forth above." ¹¹ Based on DeLorme's exertional capacity for sedentary work, the Medical-Vocational guidelines would direct a conclusion of "not disabled." Although DeLorme had additional nonexertional...