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Garrison v. Heckler

*fn*: June 25, 1985.

WILLIE GARRISON, PLAINTIFF-APPELLANT,
v.
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 83 C 2929 -- William T. Hart, District Judge.

Author: Easterbrook

Before: WOOD, COFFEY, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Stephens v. Heckler, 766 F.2d 284 (7th Cir. 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 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. 404.1525 & Appendix I ยง 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, 76 L. Ed. 2d 66, 103 S. Ct. 1952 (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 no 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.*fn1 The district court accepted the magistrate's recommendation and granted summary judgment to the Secretary.*fn2

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 sic hours in an eight-hour day, lift 50 pounds maximum with frequent lifting and/or carrying of object weighing up to 25 pounds." Dictionary of Occupational Titles (3d ed.); see also 20 C.F.R. 404.1567(c). "Frequently" in turn means ten time 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 Physical 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. ...


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