Frank J. SHELMAN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant-Appellee

821 F.2d 316, 1987 U.S. App. LEXIS 7888, 18 Soc. Serv. Rev. 88
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 13, 1987
Docket85-1736
StatusPublished
Cited by131 cases

This text of 821 F.2d 316 (Frank J. SHELMAN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank J. SHELMAN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant-Appellee, 821 F.2d 316, 1987 U.S. App. LEXIS 7888, 18 Soc. Serv. Rev. 88 (6th Cir. 1987).

Opinion

MILBURN, Circuit Judge.

Plaintiff-appellant Frank J. Shelman appeals from the district court’s order affirming the final decision of the Secretary of Health and Human Services denying his applications for social security disability insurance benefits and supplemental security income. For the reasons that follow, we reverse.

*318 I.

On February 24, 1983, plaintiff filed applications for disability benefits and supplemental security income alleging that he had been disabled since October 1981 due to “bad heart & lungs, diabetes.” Plaintiffs applications were denied initially and upon reconsideration. Plaintiff requested and was granted a de novo hearing before an administrative law judge (“AU”), which was conducted on June 18, 1984.

Plaintiff testified that he was bom on February 18, 1943, and that he failed to complete the ninth grade. Plaintiff was employed as a gas station cashier from 1980 to 1981 where he was required to stock merchandise and lift as much as fifty pounds. Plaintiff was employed as a welder and painter from 1973 to 1977 and was required to lift as much as eighty pounds and stand all day when he was painting. Plaintiff brought a portable oxygen unit to the hearing and testified that he had been using oxygen for more than a year.

Dr. Andrew Zazaian, plaintiff’s treating physician, submitted a consultation report dated June 12, 1984. Dr. Zazaian diagnosed “marked to severe obstructive and restrictive pulmonary disease secondary to smoking and possibly secondary to fumes or asbestos” and “[ajtrial fibulation [sic] secondary to lung disease.” Dr. Zazaian noted that plaintiff has “a history of pulmonary fibrosis possibly secondary to asbestos and fumes,” “a history of possible congestive cardiomyopathy as diagnosed by echocardiogram” and “a history of diabetes mellitus.” Dr. Zazaian also noted that plaintiff has had “multiple workups for pulmonary effusions with a thoracentesis” which were “negative for any tuberculosis” and were “presumed to be secondary to his chronic obstructive lung disease and restrictive disease secondary to asbestos.”

Dr. Zazaian concluded that plaintiff “is unable to ambulate very long due to shortness of breath” and “must wear a home oxygen [unit] for at least 20 hours per day, and [undergo] several machine bronchodilator therapies per day.” Dr. Zazaian’s report made express reference to a cardiac catheterization which plaintiff underwent on March 26, 1984. The cardiac catheterization revealed “diffuse dilated congestive cardiomyopathy,” but “no evidence of coronary artery occlusive disease.” Oxygen saturation levels were obtained during the catheterization. Oxygen saturation in the aorta was 95%, but oxygen saturation in the main pulmonary artery was only 74%.

Dr. John W. Cooke, plaintiff’s treating physician, submitted a consultation report dated December 2, 1983. Dr. Cooke diagnosed “pulmonary fibrosis and a combination of obstructive diseases secondary to heavy smoking and also exposure to fumes and asbestos,” a “history of diabetes mellitus Type II,” “[a]trial fibulation [sic] secondary to pulmonary disease,” and “[polycythemia secondary to chronic lung disease.” Dr. Cooke noted that plaintiff has been hospitalized three times for pneumonia and has suffered “recurrent pulmonary effusions.” Dr. Cooke also noted that plaintiff has had “[m]ultiple attempts at thoracentesis and workups for pulmonary fibrosis usually revealing asbestosis.” Dr. Cooke recommended “home oxygen therapy with nasal tube” and concluded that plaintiff “is not able to be employed because of his . severe chronic lung disease and his multiple medical complaints.”

Dr. Mary C. Wood and Dr. Aníbal Cazal examined plaintiff at the request of the state agency. Dr. Wood’s report, dated August 16, 1985, concluded that plaintiff suffers moderate to severe chronic obstructive pulmonary disease. Dr. Wood’s examination of plaintiff’s chest and lungs revealed “dullness on percussion left lower lung, deminished [sic] diaphragm movement, deminished [sic] breathing sounds, minimal expiratory phase with rhonchi.” Dr. Wood performed pulmonary function studies which indicated “severe airway obstructive concurrent with moderate restrictive defect, consistant [sic] with chronic pulmonary disease.”

Dr. Aníbal Cazal’s report, dated March 28, 1983, concluded that plaintiff suffers from diabetes mellitus, restrictive pulmonary disease, and chronic atrial fibrillation with controlled ventricular response. Dr. Cazal performed pulmonary function stud *319 ies which revealed a “moderate degree of restrictive lung disease.” Dr. Cazal reviewed chest X-rays which revealed “bilateral pleural thickening without significant change” since plaintiff’s hospitalization for left pleural effusion.

Dr. Leon S. Obushkevick and Dr. Russell Bolton assessed plaintiff’s residual functional capacity. Dr. Obushkovick’s report, dated April 8,1983, concluded that plaintiff could lift or carry a maximum of twenty pounds, that plaintiff could “stand and/or walk” about six hours per eight-hour day, and that plaintiff could sit about six hours per eight-hour day. Dr. Obushkevick cautioned that plaintiff’s activities would be impaired by fumes or dust. Dr. Bolton’s report, dated August 25, 1983, provided a virtually identical assessment except Dr. Bolton performed pulmonary function studies which indicated that plaintiff suffers chronic obstructive pulmonary disease.

Plaintiff was hospitalized on February 15, 1983, for cardioconversion. Dr. D. Po-pat performed an EKG which revealed atrial fibrillation with controlled ventricular response and nonspecific S-T wave changes which were probably secondary to digitalis effect. A chest X-ray revealed that the pulmonary vasculature was within normal limits and that there were no pulmonary infiltrates. Cardioconversion failed to correct plaintiff’s arrhythmia but his ventricular rate was well controlled with medication. Plaintiff was also hospitalized on October 30, 1981, with “left pleural effusion.” The discharge summary revealed that plaintiff had been hospitalized earlier in October 1981 with “weakness, diaphoresis, and left pleuritic chest pain.” The discharge summary concluded that plaintiff suffered from “pleural effusion” which was attributable to a parapneumonic process.

Dr. Benjamin M. Lewis, a medical adviser, reviewed the medical evidence and testified that plaintiff suffers from pleural thickening, obstructive pulmonary disease, atrial fibrillation, cardiomyopathy, and diabetes. Dr. Lewis testified that none of the pulmonary function studies were entirely satisfactory and noted that there was an oxygen saturation level of 95% in the aorta during the cardiac catheterization. Dr. Lewis testified that oxygen therapy might be appropriate, but there was not enough information to say. Dr. Lewis concluded, without, explanation, that plaintiff’s symptoms were qualitatively, but not quantitatively, consistent with the medical evidence and that plaintiff should be restricted to sedentary work.

The AU found that plaintiff suffers from severe chronic obstructive lung disease, pleural thickening of the lungs, controlled diabetes mellitus, and cardiomyopathy, but that he does not have an impairment or combination of impairments listed in, or medically equal to, one listed in Part 404, Subpart P, Appendix 1, Regulation No. 4.

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Bluebook (online)
821 F.2d 316, 1987 U.S. App. LEXIS 7888, 18 Soc. Serv. Rev. 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-j-shelman-plaintiff-appellant-v-margaret-m-heckler-secretary-of-ca6-1987.