Key v. Callahan

Decision Date11 February 1997
Docket NumberNo. 96-5200,96-5200
Citation109 F.3d 270
Parties, Unempl.Ins.Rep. (CCH) P 15693B Danny L. KEY, Plaintiff-Appellant, v. John J. CALLAHAN, Acting Commissioner of Social Security, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Robert E. Francis (briefed), Francis Law Office, Cadiz, KY, for Plaintiff-Appellant.

James H. Barr, Asst. U.S. Attorney, Louisville, KY, Mack A. Davis, Michael S. Feinstein (briefed), Mary Ann Sloan, Holly A. Grimes, Social Security Administration Office of General Counsel, Atlanta, GA, for Defendant-Appellee.

Before: GUY, SUHRHEINRICH, and BATCHELDER, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Claimant, Danny Key, appeals from a denial of social security disability benefits. An administrative law judge (ALJ) determined that as of December 31, 1988, when claimant's insured status expired, he was able to do his past relevant work as a truck driver or a grocery store owner/operator. The ALJ also determined that "[w]hile the claimant had probable dyslexia with limited reading and writing skills, the objective medical evidence does not indicate the existence of a medically determinable psychological mental impairment."

On appeal, claimant argues that the Commissioner failed to follow the proper legal standards in evaluating claimant's application and the decision is not supported by substantial evidence.

Our review of the record convinces us that the Commissioner's decision should be affirmed.

I.

On May 28, 1992, claimant filed an application seeking disability insurance benefits. The claimant, whose insured status expired on December 31, 1988, claimed a disability onset date of December 31, 1986. Claimant has not engaged in substantial gainful employment since December 31, 1986. In his initial application for benefits, claimant asserted he was disabled due to back, neck, leg, and foot pain, as well as a breathing impairment. He subsequently amended his application to allege disability due to a mental impairment. Claimant, who was 42 years of age at the time his insured status expired, has an eighth-grade education, and his last previous relevant employment was as a truck driver and a grocery store owner/operator.

After claimant's initial application for benefits was denied, a hearing was held before an ALJ on March 11, 1993, which resulted in a denial of benefits. The ALJ determined:

3. ... [T]he Claimant had severe hypertension, abdominal complaints, obesity, and dyslexia, with limited reading and writing skills, but he did not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulations No. 4.

4. The Claimant's allegations of pain and limitation on or before his date last insured, December 31, 1988, are not fully credible in light of the objective medical evidence and other evidence, including the observations of treating physicians, and the claimant's reported activities.

5. On or before the claimant's date last insured, December 31, 1988, the claimant had the residual functional capacity to perform medium work activity on a sustained basis, with the ability to lift 50 pounds occasionally and 25 pounds frequently, and stand and/or walk approximately 6 hours out of an 8 hour workday. While the claimant had probable dyslexia with limited reading and writing skills, the objective medical evidence does not indicate the existence of a medically determinable psychological mental impairment.

6. On or before the claimant's date last insured, December 31, 1988, the claimant's past relevant work as a truck driver and as a grocery store owner/operator did not require the performance of work-related activities precluded by the above limitations (20 CFR 404.1565).

7. On or before the claimant's date last insured, December 31, 1988, the claimant's impairments did not prevent the claimant from performing his past relevant work.

Key was not present at the hearing before the ALJ. He waived his right to be present through an attorney representing him at the hearing. The only testimony that was offered on behalf of claimant at the administrative hearing came from a psychologist, Jackalyn Weatherford. Key's file, however, contained a variety of medical reports covering treatment he had received going back to 1983 from different doctors and clinics for physical ailments. After the hearing, Key's recent medical records were transmitted to the ALJ by his attorney on May 4, 1993.

After benefits were denied by the ALJ, claimant instituted this action. The district judge referred this matter to a magistrate judge, who prepared a detailed report and recommended denying benefits. The district court, after considering objections filed by claimant, adopted the magistrate judge's recommendation and granted judgment in favor of the Commissioner. This appeal followed.

II.

The magistrate judge's report contained the claimant's medical history in detail, and nothing would be served by setting it forth again in this opinion. In general, the claimant, who suffered from exogenous obesity and hypertension also had back and stomach problems. In 1983 the claimant had surgery for an inflammatory mass in the cecum, and in 1986 had his gall bladder removed. The records for 1986 and 1987 are unremarkable, and there is no record of any medical treatment obtained by the claimant during 1989. Although claimant made several visits to clinics in 1990, again, the record is unremarkable except that on December 13, 1990, he complained that his back pain had increased "markedly and severely." Because of claimant's complaint of pain in his extremities, an MRI was performed on December 31, 1990. The MRI findings were normal as to the cervical spine, but indicated a central disc protrusion at T12-L1, which was noted to be of doubtful clinical significance. No work-related limitations were noted in this report, nor were any of claimant's medical records that preceded this date. Records for 1991 and 1992 indicate occasional visits to doctors with complaints of back pain and shortness of breath.

The first time the claimant sought mental health counselling was on June 23, 1992, approximately one month after he had filed a claim for disability benefits. Beginning on November 16, 1992, claimant was treated by psychologist Jackalyn Weatherford. Dr. Weatherford provided the only medical testimony in support of Key's claim for disability benefits. Through a battery of tests that she administered, Dr. Weatherford concluded that claimant demonstrated reading skills at the end of the third-grade level, and spelling skills below the third-grade level. Based upon claimant's IQ profile and other tests administered, Dr. Weatherford believed the claimant had dyslexia. On March 11, 1993, Dr. Weatherford reported in her notes that claimant had a rather severe phobia regarding storms. This conclusion, plus the additional conclusion that this is what caused him to be fired from his job as a truck driver, were based solely upon statements made to Dr. Weatherford by the claimant. Dr. Weatherford also speculated that claimant's panic disorder may...

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