Sorenson v. Bowen

• Decision Date: 01 November 1989
• Docket Number: No. 89-4002,89-4002
• Citation: 888 F.2d 706
• Parties: , Unempl.Ins.Rep. CCH 15013A Boyd L. SORENSON, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 706

888 F.2d 706

27 Soc.Sec.Rep.Ser. 369, Unempl.Ins.Rep. CCH 15013A

Boyd L. SORENSON, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant-Appellee.

No. 89-4002.

United States Court of Appeals Tenth Circuit.

Nov. 1, 1989.

Clella Lawrence, Provo, Utah (Michael E. Bulson, Ogden, Utah, with her on the brief), of Utah Legal Services, Inc., for plaintiff-appellant.

Deana Rosemarie Ertl-Lombardi, Asst. Regional Counsel, Dept. of Health and Human Services, Denver, Colo. (Dee V. Benson, U.S. Atty., Richard D. Parry, Asst. U.S. Atty., Salt Lake City, Utah, [Ronald S. Luedemann, Chief Counsel, Thomas A. Nelson, Jr., Deputy Chief Counsel, Dept. of Health and Human Services, Denver, Colo., of counsel] with her on the brief) for defendant-appellee.

Before LOGAN, SETH and MOORE, Circuit Judges.

PER CURIAM.

This matter comes to us on appeal from the district court, which affirmed denial of Boyd L. Sorenson's application for social security benefits. Sorenson v. Bowen, 709 F.Supp. 1045 (D.Utah 1988). The issue on appeal is whether the appeals council's decision was supported by substantial evidence. We conclude that it was not and reverse with instructions to award benefits to Sorenson as of the date of the commencement of his disability.

At the time Sorenson applied for benefits, he was forty-three years old and had worked for nearly twenty years as a drywall finisher. He had a documented medical history of gradually more debilitating asthma, interstitial fibrosis, chronic obstructive pulmonary disease, and emphysema. Starting November 1, 1984, he was unable to continue work as a drywaller because of the severity of his respiratory problems. He is also completely illiterate and is mildly retarded.

Sorenson applied for social security disability income benefits in January, 1985, under Title II, the disability insurance provisions of the Social Security Act, 42 U.S.C. Secs. 401-33 (1982 & Supp. IV 1986), and Title XVI, the supplemental security income program, 42 U.S.C. Secs. 1381-83c (1982 & Supp. IV 1986). His application was denied, as was his request for reconsideration. After obtaining legal assistance, he requested and received a hearing before an administrative law judge (ALJ), held May 15, 1986. To support his application, he submitted the opinion of his treating physician that he is completely disabled. The treating physician stated that Sorenson has severe exertional impairments, created by his respiratory problems, as well as nonexertional impairments. He stated that Sorenson is incapable of working around dust, fumes, smoke, and variations in temperature. He also noted Sorenson's level of intellectual functioning, another nonexertional impairment. Sorenson's treating physician's opinion was supported by ten years of observation as Sorenson's personal physician, as well as blood gas studies and exertional (pulmonary function) studies which showed a one-minute forced expiratory value (FEV or FEV,.) of 1.95 liters before use of his bronchodilator (53% of normal capacity), and 2.21 liters after its use (61% of normal). A second pulmonary function test conducted a month later yielded an FEV of 1.279 (34% of normal) and a maximum voluntary ventilation in liters per minute (MVV) of 37 before bronchodilator use, and an FEV of 1.961 (53% of normal), with an MVV of 57 after such use. ¹ The therapists conducting these tests noted that Sorenson had made a good effort, and that the tests revealed severe obstructive air flow limitations. Sorenson also submitted x-rays taken in January, 1985, which showed mild obstructive pulmonary disease. Sorenson testified in person at the hearing, corroborating his treating physician's opinion.

In response to this evidence, the ALJ concluded that Sorenson was in the category of a "younger man," was restricted to sedentary work, ² and was severely impaired, but that, because he had not dropped out of school until tenth grade, he was functionally literate. The ALJ then relied on the medical-vocational guidelines (grids). ³ Applying 20 C.F.R., pt. 404, subpt. P, app. 2, table 1, rule 201.19 (1988), the ALJ arrived at the conclusion that Sorenson is not disabled and therefore is not entitled to benefits. In summary, the ALJ found that Sorenson is severely restricted physically and assumed Sorenson to be literate. Under the regulations, with this combination, Sorenson could retrain to work in a sedentary job.

The ALJ filed his conclusion on June 10, 1986. Less than thirty days later, on July 9, 1986, Sorenson requested appeals council review of the determination. Sorenson complained that the ALJ should have applied table 1, rule 201.17 of the grids because Sorenson is not only physically disabled, he is also illiterate. Sorenson contested the ALJ's conclusion that completion of ninth grade is proof of literacy. Sorenson submitted a psychological report which indicated that his intelligence quotient is seventy-three and his memory quotient is sixty-five, as well as an affidavit describing the policies and practices of automatic student promotion in the school district Sorenson attended. The psychologist who examined Sorenson confirmed that he is completely illiterate.

On September 5, 1986, eighty-five days after the ALJ decision was filed, the appeals council notified Sorenson that it would review the ALJ decision. In the notice, the appeals council conceded that Sorenson is illiterate, but also notified Sorenson of its intent to reverse the ALJ's finding that Sorenson is restricted to sedentary level work. The appeals council stated that its review of the evidence convinced it that Sorenson is capable of medium work. ⁴ The appeals council relied on residual functional capacity (RFC) ⁵ assessment forms by which two reviewing physicians interpreted Sorenson's respiratory test results, without the benefit of examining Sorenson. Both reviewing physicians checked the boxes on the form to indicate that Sorenson is capable of performing medium work. ⁶ Under table 3, rule 203.25 of the grids, although a younger individual is illiterate, if he or she is capable of medium work, that person is not considered disabled and is not eligible for benefits. Sorenson was given twenty days to supplement the record with additional evidence. His attorney responded by letter with a recapitulation of the evidence which had been submitted previously. On December 15, 1986, the appeals council issued its decision. As foreshadowed by its September letter, it found that Sorenson, although illiterate, was physically capable of medium work, and therefore denied him benefits. The appeals council relied on the two reviewing physicians' RFC forms and the post-bronchodilator test results. The appeals council expressed confidence in this evidence, stating that respiratory functioning was readily susceptible to mechanical application of test results to residual functional capacity. It challenged the credibility of the treating physician's opinion, as well as its underlying evidentiary support. It ignored Sorenson's testimony at the ALJ hearing, as well as the implication of the ALJ's acceptance of the credibility of that testimony.

Sorenson appealed the appeals council's decision to the district court, noting that the appeals council was time-barred from expanding the scope of review beyond the issue of Sorenson's literacy, and that the council improperly weighted the opinion of the reviewing physicians, who had never examined Sorenson, over that of the treating physician, even though Sorenson's treating physician's opinion was supported by clinical evidence and a decade of personal observation and examinations and was corroborated by Sorenson's testimony at the ALJ hearing.

The case was referred to a magistrate for a report and recommendation. The magistrate recommended reversal of the appeals council's decision denying benefits, based on Sorenson's argument that appeals council's review of Sorenson's residual functional capacity was time-barred.

However, on de novo review the district court affirmed the appeals council. The district court recognized that the ALJ would have found Sorenson disabled had it found him to be illiterate. Therefore, it reviewed the appeals council decision as a reversal of the ALJ decision, mandating heightened scrutiny under Fierro v. Bowen, 798 F.2d 1351 (10th Cir.1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 789 (1987). Sorenson, 709 F.Supp at 1049. Under this standard of review, the district court found that Sorenson's treating physician's testimony was overcome by the reviewing physicians' evaluations, under the reasoning of Garrison v. Heckler, 765 F.2d 710, 713-14, 715 (7th Cir.1985) (pulmonary function tests' results can be stated in precise terms and can be analyzed by physicians with experience in reading such results with more reliable conclusions than those of a general practitioner/treating physician). Sorenson, 709 F.Supp. at 1049-50. The Sorenson district court went on to criticize the opinion of Sorenson's treating physician as mere general observations supported by insufficient clinical evidence. Id. at 1050. Sorenson appealed to this court.

The Tenth Circuit has had many opportunities to review the basic structure of the social security administration's evaluation of an application for benefits. For example,

The Secretary uses a five-step process to evaluate disability claims for supplemental security income. 20 C.F.R. Sec. 416.920. If the Secretary finds that a person is disabled or not disabled at any point, the review ends. Briefly, the five steps are as follows: (1) A person who is working is not disabled. (2) A person who does not have an impairment or combination of impairments severe enough to limit the ability to do basic work activities is not disabled. (3) A person whose impairment meets or equals one of the impairments listed in the regulations is conclusively presumed to be disabled. (...