Potts v. Secretary of Health and Human Services
| Decision Date | 09 August 1993 |
| Docket Number | No. 92-6267,92-6267 |
| Citation | 1 F.3d 1241 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Franklin D. POTTS, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before MILBURN and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.
Plaintiff Franklin D. Potts appeals the district court's grant of summary judgment affirming the Secretary's denial of his claims for social security and supplemental security income benefits. On appeal, the issues are (1) whether the Secretary's final decision denying benefits is supported by substantial evidence when based upon the record as a whole, (2) whether the Secretary applied the proper legal standards to the evidence, and (3) whether the district court erred in failing to address claimant's specific objections to the magistrate judge's report and recommendation. For the reasons that follow, we affirm.
Plaintiff filed his initial application for disability insurance benefits on September 6, 1988, and it was denied on November 7, 1988. On August 29, 1988, plaintiff also filed an application for supplemental security income, which was denied on November 10, 1988. Plaintiff filed a request for reconsideration on November 22, 1988; however, his claims were again denied on January 13, 1989.
A hearing was held before an Administrative Law Judge ("ALJ") on May 2, 1989. The ALJ denied the claims in a decision dated May 30, 1989. Thereafter, on June 15, 1989, plaintiff requested review of the hearing decision, and the Appeals Council remanded the case back to the ALJ for further proceedings.
On June 13, 1990, a supplemental hearing was held before a different ALJ. In a decision dated September 7, 1990, the ALJ again denied the claims. Plaintiff filed a request for review of the second hearing decision on September 12, 1990, and in an order dated April 18, 1991, the Appeals Council upheld the ALJ's decision, which became the final decision of the Secretary.
Plaintiff filed a timely action for judicial review of the Secretary's final decision in the district court on June 18, 1991, and the matter was referred to a magistrate judge. On June 25, 1992, the magistrate judge issued a report and recommendation in which he recommended that summary judgment be entered in favor of the Secretary because substantial evidence supported the Secretary's decision. After de novo review of the magistrate judge's report and recommendation in light of claimant's written objections, the district court adopted the magistrate judge's recommendation, granted summary judgment in favor of the Secretary, and dismissed the case. This timely appeal followed.
Plaintiff was 55 years old at the time of the first hearing. He has an eight-grade education, but asserted that he only received the equivalent of a sixth-grade education. He testified that he occasionally drives an automobile and walks a half-mile to a mile per day. Plaintiff has breathing problems particularly when the weather is hot, and he uses an inhaler every four to six hours. He walks for about 20 minutes each day. He goes shopping for himself. When he cannot walk any farther, plaintiff testified that he sits and rests for 10 to 15 minutes until he can walk again. He smokes a pack of cigarettes every two days although his doctors have told him to stop smoking. Plaintiff testified, however, that he becomes nervous or upset when he stops smoking.
Plaintiff can dress himself while sitting, but cannot clean his apartment because he has problems with stretching and bending. His friend, Ms. Willie Joe Crossland, does his laundry and most of his cooking. Plaintiff testified that he occasionally becomes confused and cannot concentrate. He further testified that he must urinate approximately every 20 minutes.
Plaintiff has previously worked as a service station attendant and as a janitor, yard man, roofer's helper, laborer, and wood shop worker. He seeks disability and supplemental security income payments for the period beginning August 22, 1988. He contends that he is unable to work due to respiratory problems, urinary frequency, chest pain, arthritis of the knee, back pain, and anxiety. The ALJ found that plaintiff had not worked since August 22, 1988, the alleged onset date of his disability.
Plaintiff, a veteran of military service, has been treated for his various ailments by the Department of Veterans Affairs (VA) Medical Center in Murfreesboro, Tennessee. Plaintiff has also been treated at a VA Outpatient Clinic for various minor problems such as flu, sinusitis, and arthritic-type complaints. Anxiety has also been reported and reduction in life stresses has been recommended. Plaintiff also has a history of suffering heat exhaustion and has had surgery for hemorrhoids. Plaintiff has also complained of stomach problems and gastritis has been diagnosed, but no evidence of active ulcer disease has been found.
An x-ray of plaintiff's chest taken on October 13, 1987, showed mild chronic obstructive pulmonary disease and aortic arteriosclerosis. He was hospitalized at the VA Hospital after suffering chest pains on February 22, 1988. A MUGA scan, echocardiogram, and an exercise tolerance test were performed at that time. The results of these tests were: (1) the echocardiogram was within normal limits, (2) the exercise tolerance test was within normal limits, and (3) the MUGA scan had an ejection fraction of 71. The discharge summary also noted that "after the patient was observed for many days on the ward without any chest pain, he was discharged home in a stable condition." R. 195.
Because the VA will not perform disability evaluations for the Social Security Administration, a consultative examination and medical assessment were performed by Dr. Qamar Khan on October 6, 1988. Dr Khan's findings were: (1) chronic obstructive pulmonary disease, (2) traumatic arthritis of the knee with connective tissue inflammatory disease of both extremities, and (3) history of chronic gastritis with peptic ulcer disease. Dr. Khan also completed a medical assessment in which he stated that plaintiff could occasionally lift 50 pounds and frequently lift 25 pounds, could stand or walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday. Dr. Khan noted that plaintiff had been coughing up "blackish sputum" and that a pulmonary function test suggested "moderate obstructive pulmonary disease." R. 203. Dr. Khan further noted that plaintiff did have traumatic arthritis of the knee, as well as fibromyositis but that the "arterial system below the popliteal region is normal." R. 204.
Plaintiff visited the VA for hearing tests on March 6, 1989. In his right ear, he suffered a "mild falling to moderate sensorineural loss." In his left ear, he had a "mild falling to severe sensorineural loss." However, the examiner noted that plaintiff had "good speech discrimination" in both ears. The examiner attributed plaintiff's hearing loss to "a combination of age and noise." R. 266.
Plaintiff was again hospitalized from September 5, 1989, until September 9, 1989, due to "benign prostatic hypertrophy," which was treated with "TURP" (transurethral resection prostatectomy). The discharge diagnosis was: (1) benign prostatic hypertrophy, (2) urinary retention, (3) hiatal hernia, (4) chronic obstructive pulmonary disease, (5) peripheral vascular disease, and (6) insomnia.
In March 1990, plaintiff went to the VA hospital complaining that his bladder condition had not done well since his September 1989 surgery. A urinary tract infection with stricture was diagnosed. The physician indicated that it would take plaintiff four months to recover and stated that he could not engage in activities during that time. Plaintiff related that he also experienced indigestion and diarrhea at times and also complained of his nerves.
Plaintiff was also hospitalized from July 9, 1990, until July 14, 1990. On this occasion the diagnosis was:
Prostatourethritis with urinary retention, frequency and dysuria. He has positive history of benign prostatic hypertrophy and is scheduled for cystoscopy.
R. 334. After an operation, plaintiff's condition was "satisfactory."
At the supplemental hearing, plaintiff testified that he could not lift the 50 pounds as opined by Dr. Khan because he had recently been told that he had a degenerating disk in his back that was about to rupture and that
the problem that I have is when I, when I go to try to lift anything now it--I have like a bee sting in the back, in, in the middle of my, lower part of my back....
R. 81. Plaintiff also testified that he had a bad stomach and had to take Maalox and Zantac. He again testified that due to his respiratory condition, he could not walk very far, especially in the heat and humidity.
According to plaintiff, his left knee hurts and in the winter he can hardly walk because it tightens up. Plaintiff testified that he still has chest pains and that he takes nitroglycerin. 1 Plaintiff drives an automobile only once or twice a week, mostly for short distances. He again testified that he does some housework; however, when he tries to vacuum or straighten up the house, he has to rest after approximately 30 minutes. Plaintiff testified that his friend, Willie Crossland, continues to help him clean his house, wash his clothes, and usually cooks his meals for him. He also testified that after sitting for a period of time, he experiences some stiffness which makes it hard for him to move around.
In addition, plaintiff's friend, Ms. Willie Crossland, appeared as a witness at the hearing. She generally corroborated his testimony. Ms. Crossland also described plaintiff's condition as going...
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