Garrison v. Heckler, 84-1811

• Decision Date: 22 May 1985
• Docket Number: No. 84-1811,84-1811
• Parties: , Unempl.Ins.Rep. CCH 16,170 Willie GARRISON, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 710

765 F.2d 710

10 Soc.Sec.Rep.Ser. 132, Unempl.Ins.Rep. CCH 16,170

Willie GARRISON, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 84-1811.

United States Court of Appeals Seventh Circuit.

Submitted May 22, 1985. ^*

Decided June 25, 1985.

Arthur Stefans, Stefans, Stefans & Stefans, Chicago, Ill., Neal J. Barkan, Barkan & Barkan Co., L.P.A., Columbus, Ohio, for plaintiff-appellant.

Steven Plotkin, Office of Reg. Atty., Health & Human Services, Eileen M. Marutzky, Asst. U.S. Atty., Chicago, Ill., for defendant-appellee.

Before WOOD, COFFEY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Stephens v. Heckler, --- F.2d ---- No. 84-1994 (7th Cir. June 21, 1985), holds that when physicians who have examined a claimant for disability benefits disagree about the severity of the claimant's impairment, the administrative agency rationally may give greater weight to the opinion of a consulting physician because the consulting physician may bring to the case something the treating physician lacks. In Stephens the consulting physicians were specialists able to assess the claimant's case in light of their greater knowledge about similar cases and so assist the agency in evaluating the relative seriousness of the impairment. In this case the consulting physicians did not examine the claimant but reviewed reports assessing the claimant's impairment.

I

From 1951 until August 1979 Willie Garrison worked as a laborer and "street mechanic" for People's Gas Co. in Chicago. He and other workers drove to a site where there was work to be done. Once there, Garrison moved pipes and other heavy materials that weighed up to 100 pounds. He quit because of increasing difficulty in breathing. Medical tests show that he has asthma and bronchitis, for which many drugs have been prescribed. Garrison also is obese and has diabetes, hypertension, and mild arthritis. Because the agency found that none of these substantially contributes to his difficulties in working, we concentrate on the breathing disorder.

Garrison testified that he experiences pain in bending (a claim the agency explicitly found not credible) and that because of his breathing impairment he has difficulty standing and walking. He stated that he runs out of breath if he walks a block and must rest 15-20 minutes before walking back. In response to a question, Garrison stated that he could lift 25-50 pounds "but I wouldn't be able to do it for any amount of time, to keep it up."

The record before the administrative law judge (ALJ) contains the reports of at least five medical professionals. Howard J. Zeitz, Garrison's treating physician, reported that Garrison suffers daily asthma attacks lasting from a few minutes to a few hours and is therefore disabled. Dr. Zeitz's diagnosis does not spell out the actual limitations on Garrison's exertion. Dr. Richard A. Herbert conducted a pulmonary function test (discussed below) showing Garrison's substantially diminished lung capacity. Herbert, too, concluded that Garrison is disabled; he, too, offered no specific statement of what Garrison can and cannot do. Milia Bacalla, a consultant internist, administered further pulmonary studies and conducted a full physical examination. His report states that Garrison is able-bodied except for the diminished ventilatory capacity, which "would impose marked restrictions" on Garrison's activity. Dr. Bacalla does not detail the nature of those restrictions. Two more physicians filled out "Physical Capacities Evaluations"--forms supplied by the agency designed to elicit information about the effects of a claimant's impairments on his ability to do work. These physicians reviewed only the documents supplied by the other physicians. Each concluded that Garrison frequently can bend, stoop, and operate foot controls; frequently can climb; but should avoid dust and variations of temperatures. Each opined that Garrison can do "medium" work.

Doubtless the most important reports for these physicians were six pulmonary function studies administered between 1979 and 1982. These studies show that Garrison, after inhaling a drug that opens breathing passages, can inhale and exhale in one breath between 58% and 94% of the air that a normal person of his sex, age, height, and weight can inhale and exhale. (The ranges are the highest and lowest for the six studies.) He can breathe in and out of his lungs in one minute between 55% and 57% of the normal amount of air. He can exhale in one second between 32% and 48% of the normal amount. A regulation specifies that a person with Garrison's diminished ability to exhale in one second who also has a very low ventilatory capacity over the course of a minute is automatically deemed disabled. 20 C.F.R. Sec. 404.1525 & Appendix

I Sec. 3.02. But Garrison's breathing capacity over the course of a minute substantially exceeds the disabling amount, so the regulations call for a more discriminating assessment of his abilities.

The physicians who filled out the Physical Capacities Evaluations attempted to provide that assessment. Although they, like the other physicians, provided conclusions rather than reasons, they alone among the physicians tried to specify the effects of Garrison's impairment on his ability to do particular tasks.

The ALJ reviewed all of this evidence and found that as of February 1981 Garrison could do no more than sedentary work. Because Garrison was 53 at the time and has only a fifth-grade education, the regulation directed the ALJ to find Garrison disabled. (The regulations, called the Grid, translate a claimant's particular age, skills, and education into a finding of disabled or not disabled. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).) Garrison asked the Appeals Council to find that his disability commenced before February 1981. Doubtless much to his surprise, the Appeals Council instead found that he is not disabled at all. The Council reviewed the evidence anew and concluded that "pulmonary function studies of a record show a mild degree of abnormality which would preclude heavy work but not medium work." (If Garrison can do "medium" or even "light" work, the Grid prescribes a finding of not disabled.) Garrison sought judicial review of the decision. A magistrate recommended that the district court find the decision of the Appeals Council supported by substantial evidence. ¹ The district court accepted the magistrate's recommendation and granted summary judgment to the Secretary. ²

II

The critical step in the agency's decision is the finding that Garrison can do "medium" work. Medium work "presupposes an ability to stand and walk at least six hours in an eight-hour day, lift 50 pounds maximum with frequent lifting and/or carrying of objects weighing up to 25 pounds." Dictionary of Occupational Titles (3d ed.); see also 20 C.F.R. Sec. 404.1567(c). "Frequently" in turn means ten times in an eight-hour day.

Garrison conceded that he can lift 25 pounds, although he said that he cannot do this continuously. The only basis in the record for finding that Garrison can do it ten times in eight hours is the Physicial Capacities Evaluations. The ultimate conclusions of the physicians who filled out these forms conflict with the conclusions of Garrison's treating physician. He therefore invokes Allen v. Weinberger, 552 F.2d 781 (7th Cir.1977), and Whitney v. Schweiker, 695 F.2d 784 (7th Cir.1982). In each case this court held that the agency must credit the report of the treating physician in the event of a conflict.

The Supreme Court held in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), that a report of a consulting physician may be substantial evidence for a finding of no disability, despite the contrary views of the treating physician. Allen held that a consulting physician's "speculative statement" (552 F.2d at 786) that a claimant could "possibly" do light work is not substantial evidence when the record contains a treating physician's credible report of total disability based on medically-determinable impairments. In Allen the treating physician had performed orthopedic surgery on the claimant and was well versed in the case; the consulting physician was not. Whitney held that a bare statement of a consulting specialist is not substantial evidence when the specialist does not examine the patient.

Allen and Whitney stand in some tension with Perales. We hesitate to extend them. At all events, neither case holds that consulting physicians' reports are not "substantial evidence" when the consulting physician brings to the case something of value to the administrative decision, such as greater expertise with an ailment, greater impartiality, or a greater range of experience that facilitates a comparison of one case against a standard or rule of decision. People often seek out specialists because of the knowledge they can bring to bear; Stephens holds that the agency rationally may do what patients do for themselves. We adhere to the rule of Allen and Whitney that a consulting physician cannot supply substantial evidence just by contradicting reports about the underlying facts or offering unfounded speculation. See also Martin v. Secretary of HEW, 492 F.2d 905 (4th Cir.1974). But when the consulting physician adds new information or perspectives, that may be substantial evidence. See Diaz v. Secretary of HEW, 613 F.2d 1194 (1st Cir.1980).

The question in Garrison's case is not whether he has a breathing disorder; he does. It is not whether this is severe; it is. It is not whether the impairment prevents him from doing his old job; it does. This is about as far as the reports of Garrison's treating physician go on the facts. The treating physician's further assertion that Garrison is disabled from any employment is not a medical statement at all. See 20 C.F.R. Sec. 404.1527 (physician's conclusion...