                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 15 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GEORGE N. WILES,

                Plaintiff-Appellant,

    v.                                                    No. 98-7009
                                                    (D.C. No. 92-CV-531-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      George N. Wiles appeals from the district court’s affirmance of the

Commissioner’s decision denying Mr. Wiles’ claim for supplemental security

income benefits for the period from April 1, 1990 to July 4, 1992. We review the

Commissioner’s decision to determine whether his factual findings are supported

by substantial evidence and whether he correctly applied the relevant legal

standards. See Castellano v. Secretary of Health & Human Servs.   , 26 F.3d 1027,

1028 (10th Cir. 1994). Because we conclude that the Commissioner’s

determination that Mr. Wiles could perform the full range of medium work is not

supported by substantial evidence, we reverse.

      Mr. Wiles filed his application for benefits in September 1990 alleging

disability since April 1, 1990, due to respiratory problems including shortness

of breath (dyspnea), aching joints and weakness. The application was denied

administratively in November 1991, and he brought this action in the district

court. The district court vacated the Commissioner’s decision because of the

unavailability of the hearing transcript, and the case was remanded for a new

hearing, which was held in March 1993. Following the hearing, the

administrative law judge issued another decision denying benefits. The ALJ

found that Mr. Wiles was severely impaired by pulmonary tuberculosis with mild

decrease in respiratory function and by complaint of lower back pain, and that he

was unable to return to his former work as a farm laborer, which was performed

                                        -2-
at the heavy exertional level. The case thus reached the fifth step of the process

for determining disability.   See 20 C.F.R. § 416.920. The ALJ found that

Mr. Wiles retained the capacity to perform the full range of medium work.

Applying the Medical-Vocational Guidelines, 20 C.F.R., Pt. 404, Subpt. P, App. 2

(the “grids”), the ALJ found that Rule 203.11 dictated a finding of not disabled.

        In November 1994, the Appeals Council granted review in part. It found

that because Mr. Wiles turned sixty years old on July 5, 1992, he was disabled

as of that date pursuant to Rule 203.01. It adopted the ALJ’s determination that

Mr. Wiles was not disabled prior to that date. Mr. Wiles then returned to the

district court (though for unknown reasons, not until January 1997) challenging

the Commissioner’s denial of benefits for the period from April 1, 1990 to July 4,

1992.

        As the parties agree, the issue on this appeal is whether Mr. Wiles retained

the residual functional capacity to do the full range of medium work during the

period in question, thus permitting the Commissioner to rely on Rule 203.11 of

the grids to find him not disabled.   1
                                          As the parties also generally agree, this issue

turns largely on the interpretation of the report prepared by the consultative


1
       Because Mr. Wiles was of advanced age, had limited education, and
previously performed only unskilled work, he would be presumptively disabled
under the grids if he could perform only light or sedentary work. See
Rules 201.01 (sedentary), 202.01 (light).

                                              -3-
examining physician, Dr. Gordon Strom, regarding Mr. Wiles’ respiratory

problems. We thus discuss his report in some detail.

      In his October 1, 1991 report, Dr. Strom stated that Mr. Wiles’ major

complaints were shortness of breath, low back pain and dizziness. Dr. Strom

noted that available records revealed a diagnosis of atypical tuberculosis, but

that sputum cultures did not identify tuberculosis organisms. On examination,

he found symmetrical expansion of the chest with decreased movement of the

diaphragm, hyperresonance (above normal resonance due to overinflation of the

lungs), and fine crackling rales throughout the lung field. His impressions

regarding Mr. Wiles’ respiratory system were “[r]estrictive lung disease with

fibronodular appearance on chest x-ray, consistent with atypical tuberculosis but

not diagnostic of atypical tuberculosis” and “[c]hronic smoker.” Appellant’s App.

Vol. II at 122. His recommendations were as follows:

      Mr. George N. Wiles appears to be a debilitated, cachetic
      individual [2] who has findings consistent with disseminated
      tuberculosis. Of note, the records do not support a diagnosis of
      tuberculosis and in fact his cultures are negative. It’s unclear
      whether the patient had positive cultures in the past or what other
      diagnostic studies were performed to identify the diagnosis of


2
      Mr. Wiles is six feet, five inches tall, and at the time of the exam, weighed
143 pounds. He stated that his normal weight was 149, but since the onset of the
tuberculosis, his weight had dropped to as low as 135 pounds. “Cachetic”
describes someone suffering general weight loss and wasting during the course of
a chronic disease.

                                         -4-
       atypical tuberculosis. There is limited data on which to evaluate the
       patient. I do not have lung functions or an x-ray which would be
       extremely helpful in assessing his functional capabilities. Mr. Wiles
       does appear somewhat weak, however he has adequate muscle
       strength and does have adequate joint function. It’s possible that he
       is limited by dyspnea. He was not significantly dyspneic at rest but
       an exercise study was not requested. My recommendations are that
       the patient be assessed with lung function testing, an adequate x-ray
       study be performed, and possibly consideration for an exercise study
       to determine whether Mr. Wiles is functionally limited. He has an
       extremely limited education, can barely read and write, and I suspect
       [is] more limited on educational grounds than physical grounds.

Id.

       Dr. Strom also prepared a Medical Assessment of Ability To Do

Work-Related Activities (Physical). On this form, he indicated that Mr. Wiles’

abilities to lift, carry and sit were not affected by his impairment. Although

Dr. Strom indicated that Mr. Wiles’ abilities to stand and walk were also not

affected by his impairment, Dr. Strom further explained that “[h]e is limited by

dyspnea. At his own pace, he can walk.”       Id. at 127. Dr. Strom indicated that he

could balance, stoop, crouch, and kneel frequently, but could climb and crawl

only occasionally because “[patient] is short of breath.”    Id. Similarly, Dr. Strom

found his abilities to reach, handle, feel, see, hear and speak unaffected by his

impairment, but found his ability to push/pull “limited by dyspnea.”     Id. Finally,

Dr. Strom noted that dyspnea caused environmental restrictions on Mr. Wiles’

exposure to chemicals, dust, noise, fumes, and humidity.



                                            -5-
       On the same day as Dr. Strom’s examination, Mr. Wiles was subjected to

pulmonary function studies, although for unexplained reasons, the results of these

studies were not made available to Dr. Strom. These studies showed that his total

vital capacity and FEV   1   values fell below predicted levels, but the “computerized

interpretation” was that “spirometry is within normal limits.”     Id. at 132.   3
                                                                                     These

studies were apparently performed at rest; there is no indication they were done

after exercise.

       In assessing this information, the ALJ stated:

       Dr. Strom specifically noted that claimant did not exhibit any
       dyspnea (shortness of breath) upon examination, although he
       complained of shortness of breath and perhaps was “limited by
       dyspnea.” Dr. Strom recommended further evaluation to determine
       whether claimant was functionally limited. Further evaluation was
       obtained in the form of October 10, 1991 pulmonary function studies.
       Before bronchodilators claimant had a FEV value of 85% of the
       predicted, FEV1 of 89% of the predicted, and a MVV of 75% of the
       predicted. Although these pulmonary function studies did show some
       decreased function, nevertheless, they were termed as within normal
       limits. Although at the time he offered his report on October 1,
       1991, Dr. Strom did not have the results of these pulmonary function
       studies, he did complete a “Medical Assessment of Ability to do
       Work-Related Activities (Physical)”. Therein, he gave his opinion
       that claimant was not limited with respect to lifting and carrying. He
       noted that claimant was limited with respect to his ability to walk due
       to dyspnea, but this conclusion appears to have been based strictly on


3
       This report also stated that “[t]his computer generated report suggests
possible medical significance of data reported to it. This report is not to be used
in the clinical management of the patient until confirmed by: Dr. _______.”
Appellant’s App. Vol. II at 132. The blank was not filled in, and there is no
indication that a doctor ever confirmed or reviewed the results of the report.

                                            -6-
       claimant’s subjective complaints, in view of the fact that Dr. Strom
       had previously noted in his narrative report that claimant was not
       short of breath on examination, but should be further evaluated to
       determine whether he was functionally limited. Nevertheless, Dr.
       Strom, at this time, noted that although claimant stated he was
       limited due to shortness of breath, nevertheless he further stated that
       he was able to walk alright at his own pace.

Id. at 19-20.

       Because this case reached step five of the process for determining

disability, the Commissioner had the burden of proving that Mr. Wiles could

perform work existing in the national economy.       See Daniels v. Apfel , 154 F.3d

1129, 1132 (10th Cir. 1998). To rely on the grids to find Mr. Wiles not disabled,

the Commissioner had to prove, inter alia, that he could fully perform the

exertional requirements the particular grid or rule demands,    see id. , which in this

case was the ability to perform medium work,      see Rule 203.11. Medium work

requires lifting fifty pounds at a time, with frequent lifting of objects weighing up

to twenty-five pounds, and standing or walking for approximately six hours in an

eight-hour day.   See S.S.R. 83-10, 1983 WL 31251, at *6. Moreover, the

Commissioner had the burden of showing that Mr. Wiles could perform medium

work on a sustained or regular and continuing basis, meaning the equivalent of

eight hours a day for five days a week.    See S.S.R. 96-8P, 1996 WL 374184,

at *2; Byron v. Heckler , 742 F.2d 1232, 1235 (10th Cir. 1984).




                                            -7-
       By itself, Dr. Strom’s ambiguous opinion does not provide substantial

evidence that Mr. Wiles can perform the full range of medium work because

it fails to show that he could perform medium work on a sustained basis.

Mr. Wiles’ primary respiratory complaint was shortness of breath on exertion

which would seem to preclude working on a sustained basis. While Dr. Strom

noted he was “not significantly dyspneic at rest,” he did not examine Mr. Wiles

after exercise, and he questioned whether Mr. Wiles was “functionally limited,”

which in this situation means whether Mr. Wiles would be able to work on a

sustained basis.   4
                       On the medical assessment form, Dr. Strom repeatedly noted

that Mr. Wiles was limited in certain functions by dyspnea. Moreover, his

ambiguous statement that Mr. Wiles could walk as long as he did it “[a]t his own

pace” does not support the conclusion that he could perform the full range of

medium work. The ALJ disregarded this statement on the ground that it

apparently was based on Mr. Wiles’ subjective complaints. While that may be

true, it does not mean that Dr. Strom concluded that Mr. Wiles had an unrestricted

ability to walk.

       Further, we do not agree with the Commissioner that any concerns

Dr. Strom had regarding the degree of Mr. Wiles’ dyspnea on exertion were



4
      Mr. Wiles does not challenge the Commissioner’s finding that he could
perform the lifting and carrying requirements of medium work.

                                            -8-
resolved by the pulmonary function studies. To determine whether Mr. Wiles was

functionally limited, Dr. Strom recommended pulmonary function studies, x-rays,

and possibly exercise studies, but only the pulmonary function studies were

performed. Nothing in the record indicates that these studies, apparently taken

while Mr. Wiles was at rest, show that he is not dyspneic on exertion.

Additionally, the results of these studies--which generally fell below predicted

values even after bronchodilators--were never reviewed or interpreted by a

physician despite the statement that they were not to be used until confirmed by

a physician.   5




5
       We also note that Dr. Strom identified a number of environmental
restrictions on Mr. Wiles’ ability to work that would preclude reliance on the
grids. See Talbot v. Heckler , 814 F.2d 1456, 1460 (10th Cir. 1987). The Appeals
Council found that because Mr. Wiles smoked a pack of cigarettes a day, worked
part-time for several winters feeding cattle, and did not make any specific
complaints regarding exposure to environmental conditions, the restrictions were
not significant. There is no medical evidence, however, supporting the Appeals
Council’s conclusion.

       Mr. Wiles also contends that the Commissioner erred by rejecting the
opinion of his treating physician that he was totally disabled due to shortness of
breath on minimal exertion because he was unable to obtain medication for his
tuberculosis. While we agree with the Commissioner that this opinion is
unsupported by any clinical findings, we disagree that it is necessarily
inconsistent with Dr. Strom’s report. Because we conclude that the
Commissioner’s decision is otherwise not supported by substantial evidence, we
do not need to decide whether the Commissioner violated the treating physician
rule in rejecting this opinion.

                                         -9-
       Finally, we note that the Commissioner based his decision that Mr. Wiles

could perform medium work in part on his testimony that, for several winters, he

had worked four hours a day feeding cattle, which he did in exchange for his rent.

Mr. Wiles’ part-time work at an unknown pace on an intermittent basis does not

demonstrate that he could perform, on a sustained basis, the full range of medium

work eight hours a day for five days a week,      see Byron , 742 F.2d at 1235, nor

does it resolve Dr. Strom’s concerns.

       We therefore conclude that the Commissioner failed to meet his burden

of showing that Mr. Wiles could perform the full range of medium work. His

reliance on the grids for proving that Mr. Wiles could perform work in the

national economy was error. This case has dragged on for over eight years, and

at this point, the record would support a finding of disability at step five. “When

a decision of the [Commissioner] is reversed on appeal, it is within this court’s

discretion to remand either for further administrative proceedings or for an

immediate award of benefits.”     Ragland v. Shalala , 992 F.2d 1056, 1060

(10th Cir. 1993). Under the circumstances, we conclude an award of benefits

covering the period in question is appropriate.     See id. (remanding for award of

benefits “[i]n light of the [Commissioner’s] patent failure to satisfy [his] burden

of proof at step five, and the long delay that has already occurred as a result of

[his] erroneous disposition of the proceedings”).


                                           -10-
      The judgment of the district court is REVERSED, and the cause is

REMANDED with directions to remand, in turn, to the Commissioner for

an award of benefits.



                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




                                      -11-
