Duncan v. Secretary of Health and Human Services, 85-5757

Decision Date23 September 1986
Docket NumberNo. 85-5757,85-5757
Citation801 F.2d 847
Parties, Unempl.Ins.Rep. CCH 16,991 Ivan DUNCAN, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

John W. Gill, U.S. Atty., J. Michael Haynes, Asst. U.S. Atty., Knoxville, Tenn., for defendant-appellee.

Dorothy B. Stulberg, Mostoller and Stulberg, Oak Ridge, Tenn., for plaintiff-appellant.

Before KEITH and MERRITT, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Ivan Duncan appeals from the judgment of the district court which denied his motion for summary judgment, affirmed the determination by the Secretary of Health and Human Services (Secretary) that he is not entitled to disability insurance benefits, and dismissed his action brought under 42 U.S.C. Sec. 405(g). Because the record contains substantial evidence to support the findings of the administrative law judge (ALJ), we affirm.

I.

Duncan filed an application for disability insurance benefits on November 2, 1983, alleging that he became disabled in October, 1978 due to "back, neck, and head injury." 1 His application was denied initially and upon reconsideration. Duncan then requested a hearing to review the determination of his claim. His request was granted and on May 5, 1984, a hearing was held before an ALJ.

Duncan appeared at the hearing without counsel, although he acknowledged that he had been notified that he could have brought an attorney with him. Duncan was 55 years old at the time of the hearing, having been born on June 28, 1929. He is married, has a twelfth-grade education, and has past work experience as a coal mine worker and heavy equipment operator. Duncan last worked in October, 1978, when he was injured while working in a coal mine. Duncan had suffered a previous injury on May 28, 1978, after which he returned to work. Then, in October, a large rock landed on the left side of his head and shoulders.

Duncan testified at the hearing that his physicians were treating him for a degenerative disc and arthritis in his neck and back and that they told him not to do strenuous work. He also stated that he was unable to do anything except watch television and read books and was unable to walk very well. Duncan further stated that he had a hearing problem and had surgery to replace his eardrum.

Duncan's wife also testified at the hearing. She stated that in her opinion, Duncan was disabled. She also commented on Duncan's difficulty with walking and described him as being in constant pain.

The following evidence was included in the medical record. Progress notes compiled by Duncan's treating physician, Dr. George Stevens, indicate that Duncan began to experience pain in his right shoulder and neck due to the May 28, 1978, job-related injury. Dr. Stevens examined Duncan on June 9, 1978, and noted that Duncan claimed to experience pain with all neck motion, which was limited to fifty percent of the normal range of motion. Dr. Stevens' impression at that time was "spondylosis C5 to C7 with acute strain of the neck and shoulder." Dr. Stevens saw Duncan again on June 26, 1978. Duncan related that he had returned to work because he felt better, but after several days of work in the coal mines the pain returned. Dr. Stevens advised Duncan to consider a different job.

Dr. Stevens next saw Duncan on June 25, 1979, to evaluate the effect on Duncan, if any, of the October, 1978 work accident. Duncan again related that he was in constant pain. Dr. Stevens observed that Duncan's neck motion was jerky but otherwise Duncan had full range of motion. There was no presence of paraspinous muscle spasms. Dr. Stevens concluded that Duncan suffered from a "degenerative spinal condition."

Dr. Stevens again examined Duncan on March 4, 1981, in a hospital emergency room where Duncan complained of acute arthritic pain. Dr. Stevens recommended bedrest and on March 19, 1981, he observed that Duncan was much improved. Dr. Stevens noted that Duncan's gait was better and that he could stand erect. On May 22, 1981, Duncan returned to Dr. Stevens complaining about his neck, shoulder, left elbow, lateral epicondyle and back. Dr. Stevens, however, had little to offer Duncan.

On June 5, 1981, Dr. Stevens completed a physical capacities evaluation of Duncan. He found that Duncan could lift ten pounds often and twenty pounds occasionally, could walk five hours, stand four hours, and sit three hours per day, and had unimpaired use of his extremities. Dr. Stevens last examined Duncan on November 1, 1983, when Duncan again complained of neck and low back pain. Dr. Stevens noted no change in Duncan's condition.

Records from the University of Tennessee Hospital indicate that Duncan was hospitalized in February, 1979 for complaints of pain. X-rays taken at that time indicated degenerative joint disease but no acute bony abnormality. Dr. Fred Killeffer, who treated Duncan at the hospital, stated in his discharge summary that a myleogram showed no significant reason for Duncan's neck pain. Dr. Killeffer recommended continued use of a TNS unit, which was said to help Duncan's pain considerably. Dr. Killeffer diagnosed severe cervical strain and mild cervical spondylosis but he believed that Duncan's symptoms would subside in time.

Beginning on February 20, 1981, Duncan was treated by Dr. Anthony Garton for multiple ailments including earache, back pain, and gynecomastia secondary to chronic liver disease and alcohol abuse. On May 20, 1981, Dr. Garton evaluated Duncan's physical capacities. Dr. Garton found that Duncan could lift twenty pounds occasionally and ten pounds frequently. He further found that Duncan could bend and reach occasionally and that Duncan's use of his extremities was unrestricted. Duncan's capacity to walk or stand was found to be restricted, but his capacity to sit was unimpaired.

In an evaluation dated September 8, 1983, Dr. Garton stated that he believed Duncan suffered from some degree of chronic obstructive pulmonary disease which was not aided by Duncan's smoking habits. However, Duncan's lungs were clear with no rales, rhonci or wheezes. Dr. Garton also noted some degree of chronic liver disease as evidenced by an abnormal liver scan in 1981. Dr. Garton further stated that Duncan suffered from some degenerative joint disease and a chronic depressive disorder. Dr. Garton's examination of Duncan's extremities indicated full range of motion with no evidence of joint swelling. Dr. Garton found no motor or sensory loss and no neurological deficit. Dr. Garton concluded that any one of Duncan's disorders considered alone would not be disabling, but, when considered together, "might make a case for total disability." Dr. Garton further acknowledged, however, that "it would be difficult to prove by objective criteria."

On December 23, 1983, Duncan was examined by consulting physician Dr. Sarada Misra. Dr. Misra noted Duncan's medical history, including two prior lumbar laminectomies in 1963 and 1964, ulcer surgery resulting in removal of eighty percent of his stomach in 1963 and breast surgery in 1981. 2 Dr. Misra found that Duncan had stiffness, limited movement and muscle spasms in his back and neck, but had no neurological deficits. Spinal x-rays showed mild degenerative changes in Duncan's lumbar spine and cervical spine.

On January 17, 1984, Dr. W.G. Kennon assessed Duncan's residual functional capacity. Dr. Kennon found that Duncan could lift or carry a maximum of twenty pounds, could lift or carry ten pounds frequently, could stand or walk about six hours per day, and could push and pull in an unlimited capacity. Dr. Kennon further found that Duncan could frequently climb, kneel and crawl, could occasionally stoop, but could never crouch. Dr. Kennon had previously completed a physical capacities evaluation in 1981 in which he similarly observed Duncan's capacity to do light work.

On June 11, 1984, the ALJ rendered his decision. Based on the testimony and the medical evidence, the ALJ determined that Duncan had a severe impairment related to his back which prevented him from returning to either of his prior work activities, but did not meet the criteria of a listed impairment in Appendix 1, 20 C.F.R. Sec. 404, Subpart P. The ALJ further found that as of the time Duncan last met the insured status requirements, December 31, 1982, he had the capacity to perform light work. The ALJ further concluded that Duncan's subjective complaints were not supported by objective evidence in the record. Considering Duncan's work capacity, age, education and prior work experience, the ALJ determined that Rules 202.13 and 202.14 of the vocational guidelines, 20 C.F.R. Sec. 404, Subpart P, Appendix 2, both directed a conclusion that Duncan was not disabled as of December 31, 1982. Accordingly, the ALJ held that Duncan was not entitled to disability insurance benefits and denied his application.

Duncan requested review of the ALJ's decision and on August 28, 1984, the Appeals Council denied his request. Duncan's counsel subsequently submitted letters written by Drs. Garton and Stevens in an attempt to convince the Appeals Council to reconsider its decision. Dr. Stevens stated in his letter dated January 10, 1985, that he believed Duncan met the criteria set forth in listed impairment Sec. 1.05(C) of Appendix 1. He also stated that Duncan's conditions existed in 1982. Dr. Garton stated in his letter dated December 4, 1984, that Duncan suffered from a number of problems, including chronic low back pain, episodic light-headedness, chronic shortness of breath and severe dypsnea, which "essentially incapacitated him." On February 15, 1985, the Appeals Council decided there was no basis for vacating its prior decision and reiterated that the ALJ's decision stood as the final decision of the Secretary.

Duncan brought the present action for review on ...

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