Opinion
No. 01-70864
April 1, 2002
I.
This is a Social Security case. Lisa M. Forgue (Forgue) appeals from the final determination of the Commissioner of Social Security (Commissioner) that she was not disabled at the time of her application and therefore was not entitled to social security benefits (benefits). Forgue applied for benefits on January 20, 1998, claiming that she was disabled since November 1994, due to nerve damage of her leg and foot resulting from three back surgeries. Her application was denied initially and upon reconsideration. An administrative law judge (ALJ) conducted a hearing and denied her application. The Appeals Council found no basis to grant a review of the ALJ's decision.
Forgue instituted this action for judicial review under 42 U.S.C. § 405(g). The matter was referred to a magistrate judge, before whom Forgue and the Commissioner filed motions for summary judgment. The magistrate judge issued a report and recommendation (MJRR) recommending that the ALJ's decision be upheld. The magistrate judge found that substantial evidence in the record supported the ALJ's findings that Forgue remained capable of performing a number of light jobs with a sit/stand option.
Forgue filed objections to the MJRR with the Court. The Commissioner filed a response to Forgue's objections.
II.
Judicial review of a Social Security disability benefits application is limited to determining whether the decision of the ALJ is supported by substantial evidence. Smith v. Secretary of Health and Human Serv., 893 F.2d 106, 108 (6th Cir. 1989). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantiality of the evidence must be based upon the record taken as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The portion of the MJRR that Mieczkowski finds objectionable are reviewed de novo. See 28 U.S.C. § 636(b)(1)(C), Herriman v. Apfel, 66 Soc. Sec. Reptr. Serv. 588, 2000 WL 246598, *1 (E.D. Mich. 2000).
III. A.
The MJRR accurately sets forth the facts. Forgue has an eleventh grade education and worked as a cashier, dental assistant, assembler, clerk/cashier, fast food worker and demonstrator. Forgue has been treated for disc herniations at L4-5 and L5-S1 and secondary back and leg pain. She has not engaged in substantial gainful employment since November 1994. Forgue's insured status expired December 31, 1994.
B.
A vocational expert (VE) testified at the hearing. The ALJ asked the VE a hypothetical question requiring the VE to assume a person of Forgue's age, education and work experience, who had the exertional limitations Forgue testified to, including: limited ability to sit, stand, walk, lift, carry, push or pull. Based on the hypothetical presented, the VE concluded that Forgue could not do her past work. The VE testified, however, that Forgue could do unskilled light work with a sit/stand option. There were 1,500 information clerk, 10,000 bench assembly, 4,200 inspector positions in the Detroit area which met the criteria presented in the hypothetical.
The ALJ posed a second hypothetical to the VE, asking the VE to assume that Forgue's testimony regarding her non-exertional limitations was fully credible. The VE testified that Forgue would have difficulty maintaining work if her testimony regarding her pain and the need to elevate her legs was fully credible.
C.
The ALJ found that Forgue was not disabled and was capable of performing light work with a sit/stand option. The ALJ found that there was no objective medical evidence to support Forgue's assertion that she needed to elevate her legs. Further, the ALJ found that Forgue's testimony regarding her back and leg pain not fully credible.
Forgue's objections to the MJRR are discussed below.
IV. A.
First, Forgue objects to the characterization of her claims of back pain and leg pain as "unbearable" and "constant and excruciating" rather than "disabling." Forgue argues that this characterization was flawed because pain does not need to be constant, excruciating, or unbearable to be disabling. Consequently, Forgue argues, the ALJ's conclusion that her pain was not disabling was in error.
Forgue's argument is semantic and is without merit. Forgue cites no evidence in the record to support her argument that her pain was disabling. It is clear after a review of the record that there is substantial evidence to support the ALJ's finding that Forgue's pain was not disabling.
B.
Second, Forgue argues that the ALJ's credibility determination was flawed. Forgue argues that the ALJ did not adequately characterize her ability to perform certain tasks in his findings of fact and, therefore, did not make an accurate finding regarding the credibility of her subjective complaints of pain. Specifically, Forgue takes issue with the ALJ's findings regarding her ability do laundry and go to church. The ALJ's finding that Forgue's testimony was not fully credible, however, is entitled to deference. See Villarreal v. Sec. of Health and Human Servs., 818 F.2d 461, 463-64 (6th Cir. 1987). The ALJ considered Forgue's testimony regarding her ability to complete household tasks and participate in social activities in addition to the medical evidence regarding her diagnosis and treatment. Considering the record in its entirety, there is substantial evidence to support the ALJ's conclusion that Forgue's subjective complaints of pain were not fully credible.
C.
Finally, Forgue objects to the MJRR's evaluation of the VE's testimony. The hypothetical question presented to the VE must accurately portray the claimant's physical and mental impairments in order for the VE's testimony to be afforded weight. Varley v. Secretary of Health and Human Serv., 820 F.2d 777, 779 (6th Cir. 1987). There is no requirement, however, that the ALJ include a claimant's unsubstantiated claims in the hypothetical. Id. The ALJ posed a hypothetical to the VE requiring the VE to assume as credible Forgue's testimony regarding her exertional restrictions including her limited ability to sit, stand, walk, lift, carry, push or pull. The VE testified that Forgue was capable light work with a sit/stand option. While the VE testified that if Forgue's testimony regarding her non-exertional restrictions were fully credible she would not be capable of work, the ALJ determined that Forgue's subjective complaints of pain were not credible and the need to elevate her legs was supported by objective medical evidence. Therefore, the hypothetical posed to the VE was accurate and the ALJ's reliance on the testimony of the VE is supported by substantial evidence.
V.
Because the ALJ's decision is supported by substantial evidence, the findings and conclusions of the magistrate judge are adopted as the findings and conclusions of the Court as supplemented here. Forgue's motion for summary judgment is DENIED and the Commissioner's motion for summary judgment is GRANTED. This case is DISMISSED.