Dollar v. Bowen, 85-1528

• Decision Date: 16 June 1987
• Docket Number: No. 85-1528,85-1528
• Citation: 821 F.2d 530
• Parties: , Unempl.Ins.Rep. CCH 17,397 Arthur V. DOLLAR, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of the United States Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 530

821 F.2d 530

18 Soc.Sec.Rep.Ser. 117, Unempl.Ins.Rep. CCH 17,397

Arthur V. DOLLAR, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of the United States

Department of Health and Human Services, Defendant-Appellee.

No. 85-1528.

United States Court of Appeals, Tenth Circuit.

June 16, 1987.

Eric G. Melders, Oklahoma City, Okl., for plaintiff-appellant.

Thomas Stanton, Asst. Regional Atty., Dallas, Tex. (Edwin L. Meese, U.S. Atty. Gen., Roger Hilfiger, U.S. Atty. for the E.D. of Oklahoma and Gayla Fuller, Regional Atty., Dallas, Tex., with him on the brief), for defendant-appellee.

Before McKAY and ANDERSON, Circuit Judges, and JOHNSON ^*, District Judge.

PER CURIAM.

The case of plaintiff Arthur V. Dollar has followed a rather complicated procedural history. For purposes of this appeal, it is sufficient to state that Mr. Dollar applied for disability benefits pursuant to the Social Security Act, 42 U.S.C. Secs. 301-1397f (1982 & Supp. III 1985), on November 18, 1981, alleging that he became disabled on or about February 27, 1980. The administrative hearing from which the present appeal is taken was ultimately held on January 11, 1984, and the Administrative Law Judge [ALJ] rendered a recommended decision on February 13, 1984, denying Mr. Dollar's disability claim pursuant to 20 C.F.R. Secs. 404.1501-.1598 and apps. 1-2 (1981) (the regulations in effect at the time this claim was filed). The ALJ's recommended decision was subsequently adopted, after slight modifications, by the Appeals Council of the Social Security Administration, Department of Health and Human Services. The matter is now before this court following Mr. Dollar's unsuccessful appeal to the United States District Court for the Eastern District of Oklahoma.

I.

Mr. Dollar is a male Caucasian who was forty-five years of age at the time of his administrative hearing. He contends that he became unable to continue work as a welder on February 27, 1980, due both to the effects of pain in his back, shoulders, and knees and to problems caused by lung disease. Mr. Dollar's "long history" of lung and back trouble stem from chronic obstructive lung disease of the left lung and degenerative disc disease of the lower back, complicated by osteoarthritic changes. Report of Robert E. Engles, M.D., F.A.C.S., record, vol. 2, at 215. There is no dispute that the results of Mr. Dollar's pulmonary tests approximate, but do not actually meet, the threshold for impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1, that were applicable as of the date of the ALJ's recommended decision. If the prerequisites for one of the listed impairments had been met, a designation of disability would have been automatic pursuant to 20 C.F.R. Sec. 404.1520(d).

Mr. Dollar also has an intellectual deficiency. The Secretary's examiners reported that, although Mr. Dollar has an eighth grade education, he is functionally illiterate. His full scale IQ of 86 is within the dull-normal range of intellectual ability. See Psychological Evaluation, record, vol. 2, at 106-07; Report of John R. Adair, M.D., id. at 158-59. Mr. Dollar testified that, although he could sign his name, he could not read or write.

In his recommended decision, the ALJ summarized the reports of five physicians who had examined Mr. Dollar. Id. at 9-10. The physical examination by William C. Moore, M.D., revealed that Mr. Dollar had limited movement in the lumbar spine, that it was "more painful for Mr. Dollar to stand on the heels than on the toes," id. at 177, and that it was "more painful to flex than to extend the back." Id. Dr. Moore's X-ray examination confirmed scoliosis with convexity to the right and a narrowing of intervertebral spaces at the L-5 and S-1 levels. Dr. Moore opined that Mr. Dollar had sustained a ruptured intervertebral disc and was thirty percent permanently disabled as a result of his back problems alone. See id. at 177-78.

Griffith C. Miller, M.D., examined Mr. Dollar in connection with his application for worker's compensation benefits. He opined that Mr. Dollar was totally and permanently disabled as a result of his back and lung injuries. See id. at 175. Mr. Dollar's regular physician, Dr. Robert E. Engles, voiced the identical view. Id. at 215.

Raymond J. Dougherty, M.D., a board certified specialist in pulmonary diseases who examined Mr. Dollar in connection with a worker's compensation claim, testified that Mr. Dollar had: (1) marked chronic obstructive pulmonary disease; (2) chronic bronchitis; and (3) thickening of the pleura in the left lower lung zone with loss of volume of the left hemothorax and bilateral lower lung zone infiltrates, cause undetermined. He concluded, "There is a 70% impairment to the whole man." Id. at 199. He further explained that Mr. Dollar was in fact 100% disabled as a result of his lung problems, but that the worker's compensation guidelines only allowed a disability of 70% for a lung condition. Id. at 195-96.

In marked contrast to these four reports, John R. Adair, M.D., a physician retained by the Secretary, concluded that Mr. Dollar suffered only from a mild restrictive and obstructive pulmonary ventilatory defect and from muscular imbalance of the back. Id. at 159. The ALJ evidently relied heavily upon the report and testimony of Dr. Adair in finding that Mr. Dollar had "mild" lung and back disease, ¹ finding 3, id. at 11, and in concluding that Mr. Dollar was not suffering from a disability.

II.

We must decide whether the district court's holding--that the Secretary's decision that Mr. Dollar was not disabled and not entitled to disability benefits--was supported by substantial evidence in the record. The "substantial evidence" standard, codified at 42 U.S.C. Sec. 405(g), has been defined as " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' It must be 'more than a mere scintilla.' " Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir.1983) (per curiam) (citations omitted). Although a reviewing court cannot weigh the evidence and may not substitute its discretion for that of the agency, it nevertheless has the duty to meticulously examine the record and make its determination on the record as a whole. Id. In applying the substantial evidence standard, the Tenth Circuit has recognized:

The claimant bears the burden of proving a disability within the meaning of the Social Security Act. 42 U.S.C. Sec. 423(d)(5). Once the claimant makes a prima facie showing of disability that prevents his engaging in his prior work activity, however, the burden of going forward shifts to the Secretary, who must show that the claimant retains the capacity to perform an alternative work activity and that this specific type of job exists in the national economy. Id. Sec. 423(d)(2)(A).

Channel v. Heckler, 747 F.2d 577, 579 (10th Cir.1984) (per curiam) (citations omitted).

The ALJ's finding that Mr. Dollar was unable to perform his past relevant work as a welder, finding 6, record, vol. 2, at 12, indicates that Mr. Dollar met his initial burden of proof. Consequently, the evidentiary burden shifted to the Secretary to show (1) that Mr. Dollar retained the capacity to perform an alternative work activity, and (2) that this specific type of job existed in the national economy. See Channel, 747 F.2d at 579. We need only reach the former issue in disposing of this case.

III.

Residual functional capacity is defined as "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirement of jobs." 20 C.F.R. pt. 404, subpt. P, app. 2, Sec. 200.00(c) (emphasis added). The ALJ found that Mr. Dollar had an RFC to "perform the full range of light work." Finding 7, record, vol. 2, at 12.

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [he] must have the ability to do substantially all of these activities.

20 C.F.R. Sec. 404.1567(b) (emphasis added).

The record fails to provide substantial evidence that Mr. Dollar was able to perform all the activities described in the regulation, particularly that he was able to do "a good deal of walking or standing." The ALJ obviously relied heavily on the testimony of Dr. Adair, the physician retained by the Secretary, who concluded that Mr. Dollar "has a problem more with illiteracy than anything else. His physical capacity, I believe, exceeds what he has reported by quite a bit." Record, vol. 2, at 159. In evaluating sufficiency of the evidence, however, we must avoid relying upon Dr. Adair's testimony to the exclusion of the reports of the other examining physicians.

"[B]ecause of the helter-skelter nature of the records in these cases, ... (courts must) not adopt the facile way of disposing of an injured applicant's case by reference to, and reliance upon, the statements of one or two physicians, as against the considered statements of many physicians and surgeons who have had more opportunity of examining and treating the applicant, more occasions of making medical reports upon him, and more expertness in diagnosis...."

Broadbent, 698 F.2d at 414 (quoting Davidson v. Gardner, 370 F.2d 803, 823 (6th Cir.1966)); cf. Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir.1987) (reports of government's consulting physicians who never examined claimant "have less credence than contrary views of treating physicians") (citations omitted); Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.1985) (evidence insubstantial if overwhelmed by evidence of treating physician).

Dr. Engles, Mr. Dollar's regular physician, reported that "at the present time [Mr....