Harrell v. Bowen, 88-1377

• Decision Date: 16 November 1988
• Docket Number: No. 88-1377,88-1377
• Citation: 862 F.2d 471
• Parties: , Unempl.Ins.Rep. CCH 14473A Alvin R. HARRELL, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 471

862 F.2d 471

24 Soc.Sec.Rep.Ser. 32, Unempl.Ins.Rep. CCH 14473A

Alvin R. HARRELL, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant-Appellee.

No. 88-1377

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 16, 1988.

Mary Ellen Phelps, Austin, Tex., for plaintiff-appellant.

James W. Jennings, Jr., Asst. U.S. Atty., Mrs. Helen M. Eversberg, U.S. Atty., San Antonio, Tex., Joseph B. Liken, Asst. Reg. Counsel, U.S. Dept. of HHS, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, KING and SMITH, Circuit Judges.

PER CURIAM:

Plaintiff Alvin R. Harrell ("Harrell") appeals an order by the district court granting the Secretary of Health and Human Services' ("Secretary") motion for summary judgment and affirming the Secretary's denial of Harrell's claim for disability benefits and supplemental security income ("SSI"). We find that the Secretary's decision to deny benefits to Harrell is supported by substantial evidence and consequently, we affirm.

I.

At the time of the administrative hearing determining Harrell's eligibility for disability benefits, Harrell was forty-eight years old, stood five feet eight inches, weighed 160 pounds, and possessed a twelfth grade education with a high school degree. Harrell previously worked fourteen years as an inventory management specialist for the United States Air Force until 1974. In 1971, Harrell fell and hurt his back while he was stationed in Thailand. He was hospitalized for six weeks and then transferred back to the United States. He had two back surgeries in 1972, one in 1973 and several kidney surgeries after 1981. ¹ Harrell seeks disability due to his back injury and problems with kidney stones. Harrell previously received disability under Title II from April 1973 until February 1982. An administrative law judge ("ALJ") upheld the cessation of his disability on January 19, 1983, finding that Harrell was capable of light work activity. A federal district judge affirmed this decision on July 30, 1984 and this determination was not further appealed.

Harrell, represented by counsel, testified at the hearing that he is able to drive 30-40 minutes at a time without stopping. He washes dishes occasionally, does "a little bit" of housework, uses a riding lawn mower and walks about one half mile without difficulty. He visits friends and neighbors when they come by and attends church sporadically. Harrell stated that he has difficulty handling some personal needs and in sleeping. During the day his main activities are reading and watching television. He has received 100% disability payment from the Veterans Administration ("VA") since 1975. Harrell complained of pain in his back, kidneys, knees, face and testicles. He is currently using a TENS unit daily in lieu of pain medication. His wife essentially corroborated this testimony.

The medical records subsequent to January 19, 1983, are voluminous. ² February 12, 1983, Harrell was admitted to the VA Hospital in Big Spring, Texas, complaining of kidney stones and pain in his right flank and right testicle. An intravenous pyelogram (IVP) taken on February 11, 1983, produced normal results. The lumbar spine showed mild degenerative changes. The IVP showed stones in the kidneys but otherwise both kidneys were functioning well and draining to the bladder. There were no obstruction or filling defects. On February 13, 1983, Dr. Sand noted that the testicle and epididymis revealed no swelling or tenderness. Harrell was advised to go home on February 14, 1983. He refused to follow the instructions of bed rest, was abusive to the attending physician and left the hospital February 13, 1983, making further lab work impossible.

On May 20, 1983, Harrell entered a VA Hospital in Temple, Texas, complaining of right kidney problems and testicular pain. An IVP confirmed both right and left non-obstructing kidney stones. The right kidney stones were removed on June 1, 1983 and Harrell was discharged on June 8, 1983.

On August 4, 1983, Harrell saw Dr. Scott Coffield, a urologist. Dr. Coffield noted no evidence of urinary tract problems from laboratory testing. The examination revealed a normal penis and normal testes, although the left was smaller than the right. The right testis was tender to simple palpatation but no pain was elicited by flexion of the trunk or extension of the spinal column. Dr. Coffield concluded that Harrell suffered from orchialgia (pain in a testis) which was likely related to nerve entrapment or inflammation due to pre-existing surgical treatment. On August 14, 1983, a CT scan and excretory urogram were performed showing no major abnormalities. On August 24, 1983, Dr. Elizabeth Rutledge requested that additional urine/semen cultures be checked, and stated "will somewhat reluctantly think about right epididymectomy (testis removal) in future, failing other alternatives."

On December 5, neurologist, N. Christoff, M.D., examined Harrell for complaints of facial numbness. Dr. Christoff found evidence of radiating pain on the right side and recurrent left face, shoulder and arm pain, cause unknown. The only objective finding was some trigeminal sensory loss. Dr. Christoff diagnosed Harrell's condition as lumbosacral radiculpathy (disease of the nerve roots) due to adhesions and scarring. On December 5, 1983, Harrell underwent a skull series performed by Dr. J.T. Davis who noted: "very questionable abnormality of the sella turcica.... The skull is otherwise normal." In December of 1983 and January of 1984, electromyographic (EMG) and nerve conduction studies were performed and no abnormal results were reported. Due to persistent symptoms, Harrell underwent two nerve block injections in March of 1984 and a third in January of 1985. Shortly before the first of these injections, it was noted that Harrell had normal muscular condition, normal deep tendon reflexes, and virtually normal sensation in both legs. Flexion and extension x-rays taken in September, 1984, indicated "normal motion in the upper and mid lumbar area and no motion at L5-S1" where surgical fusion was previously performed. Oblique views showed no spondylolysis and normal facet joints. On November 10, 1984, Harrell had x-rays taken of his knees due to "swelling and pain." However, there was no evidence of fracture, arthritis or other abnormality and the knee was determined "normal."

Harrell's complaints of chest pain in February, 1985, resulted in a treadmill stress test. Harrell was exercised for nine and one half minutes and the test produced completely normal results. No chest pain was experienced and x-rays showed clear lung fields and a heart size within normal limits. There were no gross bony abnormalities, the ventricles were normal, no mass effect and no hemorrhage or infarction was noted.

Harrell was admitted to the Audie Murphy VA Hospital in San Antonio on February 24, 1985. An extensive examination of his lower extremities revealed "no significant acute changes ... which would be suggestive of new radiculpathy," and there was "[n]o evidence of perephiral neuropathy." Hospital tests in May of 1985 revealed spinal stenoris (narrowing) at No. T4 lesion, not accompanied by any bony lesions and surgery was not recommended.

On June 24, 1985, Harrell entered the VA hospital for a follow-up genitourinary examination. An IVP revealed an enlarged prostate, but there were no other abnormalities. On August 26, 1985, Harrell was rehospitalized complaining of testicular pain, although neurological and cystoscopic examinations failed to reveal an origin for these complaints. Harrell was released four days later with no medications but was instructed to return for two out-patient examinations.

On September 9, 1985, both Harrell and his wife were seen by a psychiatrist who determined that Harrell had a tendency to "develop physical symptoms as [a] reaction to mental stress." The doctor suggested that chemotherapy should be considered and explained the effects and side effects.

Harrell had several follow-up clinical visits in 1986. An IVP taken on January 24, 1986, produced normal results and a cystoscopic examination in April, 1986, revealed no abnormalities. On May 5, 1986, Harrell was "extremely jumpy" on palpation of the right testicular area, and the diagnostic impression was chronic pain syndrome of that area. The record also contains several pages of lay testimonials from family and friends on Harrell's behalf and a "pain diary" covering August 13, 1985, shortly after his current application, to June 25, 1986, the day before the administrative hearing.

After considering the evidence, the ALJ concluded that Harrell was unable to perform his past relevant work as a supply sergeant but that he had the residual functional capacity to perform the physical exertion requirements for light work. ³

Following the current denial of benefits by the ALJ, the Social Security Administration (SSA) Appeals Council denied review, rendering the ALJ's decision the final decision of the Secretary. Harrell then sought review of the Secretary's decision in federal district court. The matter was referred to a magistrate who, on March 8, 1988, issued a report recommending that the Secretary's decision be affirmed. The district court adopted the magistrate's recommendation and entered judgment accordingly on May 19, 1988. Harrell now appeals.

II.

In reviewing the Secretary's decision to deny disability and SSI benefits, ⁴ this court is "limited to a determination that the Secretary's decision was supported by substantial evidence existing in the record as a whole and that no errors of law were made." Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.1987). In applying the "substantial evidence" standard, we must carefully scrutinize the record to determine if, in fact, such evidence is present. However, we may not reweigh the...