Heston v. Commissioner of Social Security, 99-4400

• Decision Date: 30 November 2000
• Docket Number: No. 99-4400,99-4400
• Parties: (6th Cir. 2001) Ruby E. Heston, Plaintiff-Appellant, v. Commissioner of Social Security, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 528

245 F.3d 528 (6th Cir. 2001)

Ruby E. Heston, Plaintiff-Appellant, v. Commissioner of Social Security, Defendant-Appellee.

No. 99-4400

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: November 30, 2000

Decided and Filed: March 26, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00644, George C. Smith, District Judge. [Copyrighted Material Omitted]

Susan J. Haas, Zanesville, Ohio, for Appellant.

Randall E. Yontz, Cynthia A. Brandel, OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, Chicago, Illinois, for Appellee.

Before: DAUGHTREY and MOORE, Circuit Judges; CARR, District Judge^*

OPINION

JAMES G. CARR, District Judge.

Claimant-Appellant, Ruby E. Heston ("Heston") filed an application for disability benefits which was denied, and now appeals the district court's decision upholding the denial of benefits. Heston challenges the decision of the Administrative Law Judge (ALJ) on three grounds: 1) failure to state reasons for rejecting the report of Dr. John Haun, plaintiff's treating physician; 2) lack of substantial evidence to support the ALJ's finding that her testimony was not credible; and 3) wrongful application of Rule 203.12 of the Medical-Vocational Guidelines (instead of Rule 202.02) in the determination that she can perform substantial gainful work.

The Commissioner argues that it is not necessary to reach the merits of Heston's claims because of her failure to challenge the preliminary finding at step two of the sequential process that she does not have a severe impairment. In addition, the Commissioner asserts that Heston's claims are without merit.

For the following reasons, we AFFIRM the judgment of the district court.

PROCEDURAL AND FACTUAL BACKGROUND

Heston was born on February 6, 1936, and last worked on November 17, 1992. (J.A. at 34). Heston can read and write, though her writing skills are limited. (Id. at 36). Heston worked most recently for a dry cleaner as a counter assistant and presser. (Id.). Previously, she had worked caring for patients in a nursing home and as a housekeeper. (Id. at 38-39). She stopped working in November 1992 because she could no longer breathe the dry cleaner's fumes. (Id. at 37-38). Heston's disability period thus runs from November 17, 1992, the date she stopped working, to June 30, 1994, the date she was last insured. (Id. at 13).

A. Procedural Background

Heston filed for disability benefits on July 19, 1995. (Id. at 65-68). She claims to be disabled due to shortness of breath, asthma, excessive heartbeat, diverticulitis, high blood pressure, pancreatitis, and curvature of the spine. (Id. at 88). Heston's original application for benefits was denied on October 20, 1995, on grounds that Heston did not present enough medical evidence to show the severity of her condition. (Id.). Heston filed a request for reconsideration, which was also denied. (Id. at 100-02).

Heston requested a hearing before an ALJ. Following a hearing on April 28, 1997, the ALJ issued a decision on June21, 1997, in which he found that Heston had no "severe impairment" as of June 30, 1994, the date she was last insured. (Id. at 19). Further, the ALJ found that even if Heston could demonstrate a severe impairment, she would be precluded from receiving disability benefits because the testimony of a vocational expert showed that she could still perform a significant number of jobs in the local economy. (Id. at 13).

Heston filed a "Letter of Contentions" with the Appeals Council of the Social Security Administration contesting the ALJ's decision. (Id. at 189-92). In the letter, Heston argued that neither the ALJ's finding that she was not severely impaired nor his finding that she could still perform substantial gainful activity was supported by substantial evidence. (Id.). The Appeals Council denied Heston's request for review. (Id. at 4-6).

Heston then filed her complaint in the Southern District of Ohio. In that complaint, Heston raised the same three claims that she asserts on appeal. She did not challenge the ALJ's predicate finding that she does not suffer a substantial impairment. The Commissioner's answer to the complaint and brief in support of its motion for summary judgment did not raise the issue of Heston's failure to challenge that predicate finding as grounds for not considering her claims on their merits. The Magistrate Judge filed a Report and Recommendation affirming the ALJ's decision. (Brief of Appellant, at 49).

Heston filed Objections to the Magistrate's Report, based on the same three claims. Once again, the Commissioner failed to raise the issue of Heston's failure to challenge the predicate finding of no substantial impairment. The district court adopted the decision of the Magistrate Judge's Report and Recommendation. (Id. at 45).

B. Heston's Medical History

In 1965, Dr. Haun examined Heston and determined she had bronchiectasis. (Id. at 112). Dr. Haun recommended surgery, and Heston had one-third of her left lung removed. (Id.). Dr. Haun remained Heston's physician until February 1992. Over the years, Dr. Haun treated Heston for bronchiectasis, high blood pressure, acute pancreatitis, diverticulitis, a hernia, a hysterectomy, surgery on her ureter, frequent recurrent bronchitis, and chronic purulent sputum production. (Id.).

Dr. Haun provided a three-page summary of Heston's medical history on a form provided by the Bureau of Disability Determination. The three-page summary is the only evidence from Dr. Haun in the administrative record. (Id. at 111). In the questionnaire, Dr. Haun indicated that, although he had no current information, he believed Heston would have trouble bending, lifting, and carrying. (Id. at 113).

After Dr. Haun retired, Heston became a patient of Dr. Colby. During the period of alleged disability relevant to this litigation, Dr. Colby treated Heston several times for bronchitis. (Id. at 118-34).

In December 1993, Heston complained of weakness, fatigue, and heart palpitations. Because Heston had a history of arrhythmia, Dr. Colby administered a stress test, which was terminated after six and a half minutes because of Heston's shortness of breath and fatigue. (Id. at 134). The test revealed normal cardiac activity, and after the test, Dr. Colby discontinued Heston's arrhythmia medication because she had performed so well. He also fitted Heston with a Holter monitor for twenty-four hours, which did not reveal any significant arrhythmia. Heston continued to see Dr. Colby periodically for symptoms of chest congestion and bronchitis, and for recurrent bouts of pancreatitis. (Id. at 118-34).

Heston's last visit with Dr. Colby was in March of 1994. In response to a Bureau of Disability Determination questionnaire, Dr. Colby indicated that he could not determine if Heston would have trouble with any of the physical activities indicated on the form. (Id. at 115).

Heston became a patient of Dr. Stephen Stansbury in January, 1995. Though Dr. Stansbury did not treat Heston during the disability period at issue, he did continue her treatment for chronic bronchitis. (Id. at 148-50). In December, 1995, Dr. Stansbury ordered a C.T. scan of Heston's lung to determine whether she again had bronchiectasis. (Id. at 151). The scan indicated that the scarring of Heston's left lung had not changed since a previous examination, and that there was no evidence of renewed bronchiectasis. (Id.).

On October 15, 1996, Dr. Raj Tripathi conducted an examination of Heston at the request of the ALJ. Dr. Tripathi noted Heston had bouts of upper respiratory tract infection which had been treated successfully, exertional dyspnea, high blood pressure controlled by medication, occasional heart palpitations, and a history of arthritic symptoms. (Id. at 153-54).

Dr. Tripathi concluded that Heston's heart had "PMI palpable in the 5th intercostal space medial to the midclavicular line. No palpable thrill. S1 and S2 normal quality. No murmurs, no rubs, and no gallops." (Id. at 155). Examining Heston's lungs, Dr. Tripathi found "minimal crepitation at the bases." Dr. Tripathi conducted extensive range of motion studies, in which he found Heston's abilities to be normal. (Id. at 157-62). He found that Heston could lift thirty pounds occasionally. (Id. at 160). He found that she could stand for four to five hours in a eight-hour workday, stand for thirty minutes without interruption, and sit for one hour without interruption. (Id. at 160). Dr. Tripathi determined that Heston could never climb, kneel, or crawl, and could balance and stoop only occasionally. (Id.). Finally, he noted that Heston's exposure to heights, moving machinery, temperature extremes, dust, fumes, humidity and vibration should be restricted. (Id. at 161).

Dr. Tripathi also conducted a pulmonary functions test from which he concluded that Heston had "minimal obstructive lung disease." (Id. at 162).

C. Heston's Hearing Before the ALJ

On April 28, 1997, Heston testified before the ALJ and a vocational expert about her medical history and daily activities. Heston testified that, as an employee of Tyson Dry Cleaners, she had served as a presser and dry cleaner, and had operated the cash register. (Id. at 38-40). She said that she suffered from bronchitis between six and seven times a year, and that she had spells of pancreatitis depending upon fluctuations in her diet. (Id. at 41-43). She described having arthritis pain in her hips and ankles during bad weather and when standing on cement. (Id. at 45-47). Heston stated that her breathing problems had worsened since 1994. (Id. at 47).

Heston told the ALJ that she could walk for one block before "puffing" and could sit for twenty to thirty minutes without interruption. (Id. at 48). She stated that she "didn't want to lift" more than ten to fifteen pounds. (Id.). Around the house, Heston stated that she loads the dishwasher, sweeps with a vacuum cleaner, does...