Mowery v. Heckler, 84-5312

• Decision Date: 03 September 1985
• Docket Number: No. 84-5312,84-5312
• Citation: 771 F.2d 966
• Parties: , Unempl.Ins.Rep. CCH 16,301 Harvey S. MOWERY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 966

771 F.2d 966

11 Soc.Sec.Rep.Ser. 32, Unempl.Ins.Rep. CCH 16,301

Harvey S. MOWERY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 84-5312.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 25, 1985.

Decided Sept. 3, 1985.

Dorothy B. Stulberg, Mostoller & Stulberg, William A. Allen (argued), Rural Legal Services of Tenn., Lenny L. Croce, Oak Ridge, Tenn., for plaintiff-appellant.

John W. Gill, U.S. Atty., Charles Fels, Laurens Tullock (argued), Knoxville, Tenn., for defendant-appellee.

Before MERRITT and WELLFORD, Circuit Judges, and HILLMAN, District Judge. ^*

HILLMAN, District Judge.

Harvey S. Mowery applied for social security disability insurance benefits on October 16, 1981, and supplemental security income benefits on September 24, 1981. His applications were denied initially and upon reconsideration. An administrative hearing was held on January 20, 1983, before an Administrative Law Judge (ALJ) and a decision was issued February 16, 1983, denying his claim. The Appeals Council denied review on August 5, 1983.

A complaint for judicial review was filed on September 22, 1983. The district court denied plaintiff's motion for summary judgment on February 27, 1984, and plaintiff's motion for reconsideration on March 13, 1984. This appeal followed.

Statement of Facts

Harvey S. Mowery is a 60 year old man with a second grade education. He can neither read nor write. His past work has been mostly heavy construction and mining. He also worked for approximately one year as a night watchman. He last worked as a construction laborer on May 22, 1979. At the administrative hearing, appellant testified that he left his last employment for two reasons. He stated that because of various physical problems he had not been "pulling my part" (Tr. 40) for some time. On his last day of work, appellant testified that he was forced to stop working because of pain. Appellant was told he may have suffered a mild heart attack or stroke, although this was not medically confirmed. However, it was confirmed that the day after he stopped working, his blood pressure was 2 38/133.

Appellant is mentally impaired with verbal I.Q. of 66, performance I.Q. of 75, and full scale I.Q. of 69. He alleges that he suffers from hypertension with frequent headaches and dizziness, pain, kidney stones, hearing loss, chronic bronchitis, and mild degenerative joint disease. Gary C. Salk, Ph.D., a clinical psychologist, tested appellant on January 6, 1982. In addition to his low I.Q. scores, Dr. Salk stated appellant "seemed to have trouble understanding what I said to him. Part of this may be due to hearing loss, but most of it seemed to be due to his retardation." (Tr. 205, 208) Appellant complained of headaches, dizziness, lack of energy and insomnia. Dr. Salk found appellant's ability to understand simple instructions "mildly restricted due to retardation." He found appellant's other activities and abilities were not significantly restricted. However, Dr. Salk emphasized that his opinion regarding appellant's ability to function in an ordinary work setting applied only to the construction and mining jobs held previously by appellant.

Daniel Davis, M.D., a social security consulting physician, stated after his examination that appellant "is not competent and I do not believe he is able to handle his finances, I do not believe he is able to follow instructions and so forth. (Tr. 202) His general evaluation was affected by appellant's inability to answer questions "with any degree of intelligence." Dr. Davis said: "It is impossible to obtain a satisfactory medical history from this man." (Tr. 200) Dr. Davis administered an electrocardigram that revealed a sinus tachycardia condition, which is a sinus rhythm greater than 100 beats per minute in an adult. Dr. Davis measured a ventricular rate of 118 beats per minute. Blood pressure was measured at 1 60/100, with a pulse rate of 110. Dr. Davis found no cardiac enlargement, thrills, or murmurs. He did find "some residual hearing deficit [in the] left ear." (Tr. 200-201) Appellant complained to Dr. Davis of pain from kidney stones, constant generalized headaches and vertigo, and stated that he blacked out at times.

Archer W. Bishop, Jr., M.D., an orthopedic specialist, in an examination on December 15, 1982, found that appellant "has limitation of all planes of motion in his back, particularly lateral bending and hyperextension.... [H]e had positive straight leg raising on the right and really had some hamstring tightness but no true radicular symptoms were elicited by straight leg raising, only pain in the back and soreness of the back of the right knee." (Tr. 211) Dr. Bishop's impression was that appellant has some limitation as a result of his pain and does experience soreness in his back, but that there were only minimal physical findings. Dr. Bishop expressed the opinion that appellant was limited to lifting no more than 25 pounds, carrying no more than 40 pounds, and should avoid repetitive bending and stooping. Dr. Bishop also stated: "He has limitation of hearing during this examination. I had to speak somewhat loudly and look directly at the patient." (Tr. 213)

Appellant was also examined by F.G. McNeeley, M.D., on December 18, 1980, and January 20, 1981, with blood pressure measurements of 1 90/110 and 2 00/120, respectively. Dr. McNeeley prescribed medication for appellant's high blood pressure. He also diagnosed arthritis involving multiple joints and deafness in the left ear.

Sarada Misra, M.D., examined appellant on March 19, 1981. Dr. Misra diagnosed hypertension, with a measured blood pressure of 1 70/94 on the date of examination. The doctor interpreted some irregularities in an EKG examination. Appellant complained to Dr. Misra of headaches and dizziness, chest pain, back pain and arthritic pain. Dr. Misra also found hearing loss in the left ear: "... he cannot hear well from a distance of six feet. I have to talk loudly for him to hear well. Obviously, he has some hearing loss, and I don't know whether he has had a complete hearing test before or not." (Tr. 122) Dr. Misra also diagnosed chronic bronchitis, based on a history of chronic cough and sinus problems, and an examination of the lungs which showed occasional moist sounds. Dr. Misra also further diagnosed hypertension with grade one retinopathy, indicating disease of the retina of the eye.

Progress notes from the Clinch River Medical and Emergency Center from May, 1979, to March, 1980, show treatment for high blood pressure with complaints of headaches and dizziness. X-rays taken by the Center show probable kidney stones in both kidneys. Repeated blood pressure measurements show fluctuations between 238/133 and 134/90. Despite continuous medication, the Center doctors repeatedly stated: "Hypertension out of control." (Tr. 90-100)

At the administrative hearing, appellant testified that he started working at age 12 and continued working until May 22, 1979, when he suffered a possible heart attack. As noted, his blood pressure on May 23, 1979, was measured at 2 38/128. He stated that if he tries to get out and work for 10 to 15 minutes, his lower back gives out and he gets dizzy. He said at times he blacks out. He also testified to severe and frequent headaches. He complained further of chest pains when he leans over, and swelling in his right hand.

Appellant testified that when he worked as a night watchman in a temporary capacity, he was assisted by his son and daughter because of difficulties with his eye sight and hearing. His job as a night watchman was 14 years ago.

The ALJ found that appellant does not have a severe impairment or a combination of impairments which are severe, and that because appellant had demonstrated his ability to function at his present level of retardation, his mental impairment is not severe.

An earlier ALJ's opinion, dated May 5, 1981, found that appellant was limited to light work, but because he formerly performed work as a night watchman which did not require more than light exertion, his impairment did not prevent him from performing his former work.

Discussion

The Secretary's regulations provide a step-by-step review process for determining disability. 20 C.F.R. Sec. 404.1520. If at any step in the review the Secretary makes a decision that the plaintiff is or is not disabled, review of the claim ceases. 20 C.F.R. Sec. 404.1520(a). The sequential consideration of a disability claim proceeds as follows:

(1) Is claimant working? If not,

(2) Does claimant have a severe impairment? If he does,

(3) Does claimant have an impairment listed in appendix one to 20 C.F.R., part 404, subpart P (i.e., a "listed impairment")? If not (4) Does claimant's impairment prevent him from doing his past relevant work? If it does,

(5) Does claimant's impairment prevent him from doing any other work? (i.e., "the grid" is applied).

20 C.F.R. Sec. 404.1520 ¹ Because the ALJ found that appellant does not have a severe impairment, which finding was affirmed by the district court, review of appellant's claim was terminated at step two of this sequential evaluation.

Appellant challenges the Secretary's final decision on several grounds. First, appellant claims that the Secretary's nonsevere impairment regulations (20 C.F.R. Secs. 404.1520(c) and 404.1521) are invalid because they conflict with 42 U.S.C. Sec. 423(d)(1), (2) and (3). This is so, argues appellant, because those regulations permit the denial of disability benefits to individuals who have a medically determinable, physical or mental impairment which results in the inability to engage in substantial, gainful activity. Second, appellant claims that the Secretary did not evaluate the evidence in accordance with her own regulation, 20 C.F.R. Sec. 404.1521. Third, appellant maintains that plaintiff's condition meets a listed impairment, namely, 20 C.F.R. part 404...