Opinion
Case No. 99-CV-72298.
February 2, 2000.
MEMORANDUM AND ORDER
I.
This is a Social Security case. Joann M. McCann (McCann) 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 disability insurance benefits and supplemental security benefits (benefits). McCann applied for benefits on December 8, 1995, claiming she was disabled since November 1, 1995 due to asthma and depression. Her application was denied initially and upon reconsideration. A hearing was held before an administrative law judge (ALJ) who later issued a written opinion denying McCann's application. The Appeals Council found no basis to grant a review of the ALJ's determination.
McCann instituted this action for judicial review of the ALJ's determination pursuant to 42 U.S.C. § 405 (g). The matter was referred to a magistrate judge, before whom McCann and the Commissioner filed motions for summary judgment. On November 30, 1999, the magistrate judge issued a report and recommendation (MJRR) that the ALJ's decision be upheld. The magistrate judge found that substantial evidence in the record supported the ALJ's findings that McCann retained the residual functional capacity to perform a significant number of light duty jobs with the following restrictions, which included her past employment as an inventory clerk: non-complex, no production quotas, limited contact with the general public and no exposure to smoke or chemical fumes.
For the following reasons, the findings and conclusions of the MJRR are adopted as the findings and conclusions of the Court. Accordingly, McCann's motion for summary judgment is DENIED, the Commissioner's motion for summary judgment is GRANTED and this case is DISMISSED.
The Court ordinarily would grant oral argument on these motions. However, in this case, the Court finds that oral argument is not necessary. See E.D. Mich. LR 7.1(e)(2).
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).III.
The MJRR accurately sets forth the facts. McCann was thirty-eight years old at the time of the ALJ's decision. She has a high school education. McCann has not engaged in substantial gainful activity since November 1, 1995. At the time of her hearing, she worked one day a week as a church janitor, which the ALJ determined was not substantial gainful activity. She was also taking six credits at a community college. Her past relevant work included employment as a concession stand attendant and inventory clerk, classified as light duty unskilled work. She was also previously employed as a respite child care worker, classified as semi-skilled with a medium to heavy exertional level. McCann claims that she is disabled due "asthma, hernia, hyperthyroid, long-term depression and bi-polar [disorder]."
A vocational expert (VE) was asked to testify as to whether there would be any jobs available for the person with the following hypothetical restrictions: A person of McCann's age, background, limited to light skilled jobs that are non-complex, have no production quotas, limited contact with the general public and no exposure to smoke or chemical fumes. The VE responded that there would be several jobs available, including cafeteria attendant, laundry worker, file clerk, locker room attendant, and surveillance system monitor. The VE also testified that McCann's prior job as an inventory clerk was within these restrictions. In a second hypothetical, the VE was to assume that there was a complete inability to perform any task on a timely basis, to which the VE responded that no jobs would be available.
McCanns objections to the MJRR are discussed below.
IV. A.
As the magistrate judge correctly noted, McCann specifically claims that her mental problems prevent her working. The ALJ found that McCann met the initial criteria of suffering from an Affective Disorder, defined as a "[d]isturbance of mood, accompanied by a full or partial manic or depressive syndrome." 20 C.F.R. Part 404, Subpart P. Appendix 1 § 12.04(A) (1997). McCann, however, failed to establish that her mental condition rose to the required level of severity under subsection B (the B criteria) which evaluate the following: (1) the claimant's activities of daily living (B 1); (2) difficulties in maintaining social functioning; (B 2); (3) deficiencies in concentration, persistence or pace resulting in failure to complete tasks in a timely manner (B 3): and (4) episodes of deterioration or decompensation (B 4).
B.
McCann first objects to the magistrate judge's analysis of her activities of daily living, contending that the magistrate judge, relying on Maher v. Secretary of Health and Human Serv., 898 F.2d 1106 (6th Cir. 1989), inappropriately equated the fact that McCann attends community college as being inconsistent with a claim for disability. McCann argues that in Parish v. Califano, 642 F.2d 188 (6th Cir. 1981), the court held that although the claimant was attending college on a part time basis, she was still disabled.
McCann's objection is not well taken. In both Maher and Parish, the fact that the claimant attended school was only one factor in evaluating their level of disability. Here, even if the magistrate judge overstated Maher, it is clear that the magistrate judge considered all of McCann's daily activities, including, but not limited to, her school attendance. To the extent that the magistrate judge relied on Maher for the proposition that school attendance is a relevant factor, it was proper.
Moreover, McCann does not argue with either the magistrate judge's or the ALJ's determination that McCann failed to establish a sufficient restriction in her daily activities. This is for good reason. McCann's daily activities may include any of the following: attending school, doing homework, reading, grocery shopping, paying bills, watching TV, driving, visiting with friends, cooking meals, taking care of her personal needs, working one day per week as a church janitor, and, on occasion, singing karaoke.
C.
McCann next objects to magistrate judge's finding that she failed to meet the B 3 and B 4 criteria. As indicated above, B 3 relates to the claimant's ability to concentrate, ability to work at a timely pace and persistence. McCann argues that her inability to concentrate is evidenced by the fact that she receives special accommodations at college in the form of a note taker, taped lectures, taped textbooks, and being allowed as much time as needed to take her examinations. However, there is no medical evidence to support an inability to concentrate. To the contrary, a licensed psychologist, Mary M. DeWolff, reported that McCann was in the low to average range of intelligence and was capable of doing "many different kinds of work." Dr. DeWolff also opined that McCann lacked motivation and responsibility, not concentration.
McCann also argues that the records from her social worker, Linda Hale, document frequent instances of a lack of concentration and should be given more weight. However, a social worker is not an acceptable medical source under the regulations. See 20 C.F.R. § 404.1513, 414.913 (1997). Moreover, as the magistrate judge correctly found, Ms. Hale's "opinion is not supported by her findings and is inconsistent with the higher functioning evidence in plaintiff's daily activities." (MJRR at p. 11). As her daily activities demonstrate, McCann is able to concentrate long enough to complete non-complex tasks, which the ALJ included in her work limitations.
McCann also alleges that she is unable to concentrate to complete tasks on a timely basis, as evidenced by the slow pace in which she does her homework, and her inability to complete housework. McCann also asserts that she had difficultly working at the same pace as others in her former jobs of inventory clerk and concession stand attendant. She had no trouble, however, in keeping up the pace as a child care worker.
This argument is not persuasive. The ALJ accounted for McCann's reduced work pace, by restricting her to non-production jobs, which include her former job as an inventory clerk,
As to the B 4 criteria, the magistrate judge agreed that the ALJ found one or two instances of decompensation or deterioration, which presumably encompass the times McCann admitted herself to the hospital for depression. These few instances of deterioration clearly are not repeated, extreme or constant instances, as required under under B 4. Overall, McCann's objections relating to analysis of the B criteria fail.
D.
McCann next objects to the magistrate judge's application of Social Security Ruling 85-15, which recognizes that the mental demands of even competitive unskilled work require sustained abilities. These include the ability to understand, carry out and remember simple instructions, respond to appropriate supervision, co-workers and unusual work situations. In other words, this ruling relates to the individual's residual functional capacity to sustain work activity.
The magistrate judge found the fact that McCann was consistently able to get herself to her many doctor and counseling appointments, pay her bills, and grocery shop, supports the ALJ's finding that she could perform sustained work that was non-production, non-complex and involved limited public interaction. The Court agrees. Thus, this objection lacks merit.
E.
McCann finally objects to the magistrate judge's finding that the hypothetical posed to the VE adequately accounted for her emotional problems. The magistrate judge found there was no acceptable medical evidence to confirm that McCann suffered from intrusive thoughts and had difficulty in concentrating. McCann contends that Dr. McAllister had documented these problems and therefore, these problems should have been included in the hypothetical. While Dr. McAllister documented McCann's concentration problems, it was in the context describing her reported symptoms: there is no medical diagnosis of poor concentration. The intrusive thoughts she reported were apparently of a sexual nature, and the record does not report this as a recurring problem. McCann also consistently denied having delusions or hallucinations, and no doctor reported as such.
It is well established that a claimant must show objective medical evidence to confirm the severity of the alleged symptoms.See Duncan v. Secretary of Health and Human Serv., 801 F.2d 847, 853 (6th Cir. 1986). Also, there is no requirement that the ALJ include a claimant's unsubstantiated claims in the hypothetical.Varley v. Secretary of Health and Human Serv. 820 F.2d 777, 779 (6th Cir. 1987). Thus, the ALJ could properly exclude McCann's emotional problems from the hypothetical.
The ALJ did, however, ask the VE to include in the second hypothetical an inability to perform any task in a timely manner. The VE responded that no jobs would be available. However, as demonstrated above, the record as a whole, in particular McCann's daily activities, fails to support McCann's claim that she cannot timely perform any task. Thus, the ALJ did not have to credit this hypothetical.
F.
McCann undisputedly suffers from depression. However, all of the medical evidence, including the reports from her social worker, have tended to report favorably on McCann's prognosis, providing she continues with appropriate counseling, therapy and medication. No one has ever indicated her depression is so debilitating that it prevents her from functioning normally if she so chooses; no one has indicated she is completely unable to work. The Commissioner's decision denying McCann benefits is therefore supported by substantial evidence.
AVERN COHN United States District Judge
Dated: FEB 02 2000