Opinion
Case No. 2:05-cv-0369.
April 13, 2006
REPORT AND RECOMMENDATION
Plaintiff, Herbert Rollins, now deceased, filed this action seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits. That application, which was filed on January 7, 2003, alleged that plaintiff became disabled on April 14, 2002, as a result of multiple medical conditions.
After initial administrative denials of his claim, plaintiff was provided a hearing before an Administrative Law Judge on February 3, 2004. In a decision dated May 12, 2004, the Administrative Law Judge denied benefits. That decision became the final decision of the Commissioner when the Appeals Council denied review on November 12, 2004.
Plaintiff thereafter timely commenced this civil action. The record of administrative proceedings was filed in this Court on June 20, 2005. Plaintiff filed a Statement of Errors on August 15, 2005, to which the Commissioner responded on November 14, 2005. No reply brief has been filed, and the matter is now ripe for decision.
Plaintiff's testimony at the administrative hearing reveals the following. Plaintiff, who was 61 at the time of the administrative hearing, graduated from high school and had vocational training as a welder and fabricator. (Tr. 616-19). He last worked as a coal miner for Southern Ohio Coal Company in the coal processing plant. (Tr. 620-21). That was a sedentary job. (Tr. 621).
Plaintiff testified that he could not work because of complications from diabetes. He developed neuropathy affecting his feet and legs as well as his kidneys. (Tr. 623). The neuropathy also caused him to experience stress and agitation. (Tr. 624). His feet were numb and cramped consistently. Id. He took Neurontin for spasms and cramps but it caused short term memory loss. (Tr. 626).
Plaintiff testified that he experienced cramps and spasms in his legs three to four times a week at unpredictable times, although they occurred mostly at night. It would take 10 to 15 minutes for the cramps to resolve. (Tr. 629). Excessive walking would cause him to experience both cramps and back pain. (Tr. 630-31).
Plaintiff testified that he could walk between 15 minutes and half an hour and could stand for 15 to 20 minutes. (Tr. 632). He could bend and stoop occasionally. Id. He did have problems grasping with his left hand due to cramps but no problems with the right hand. (Tr. 632-33). He testified that he could lift 20 to 25 pounds but had trouble sitting for any length of time. (Tr. 634-35). He denied any mental health problems. (Tr. 637). He also wore a hearing aid in his right ear. (Tr. 639).
Plaintiff testified that his daily activities were limited. He was able to fix breakfast and assist his wife with household or outdoor chores. (Tr. 640-41). He also refinished furniture. (Tr. 643). He was able to drive locally and occasionally make longer trips. (Tr. 644). He testified that he was unable to return to his past job because he needed to visit the bathroom frequently and the job required constant attention. (Tr. 651). Because of his neuropathy, he might be required to take several hours of restroom breaks during the day at unpredictable times. (Tr. 654).
Pertinent medical records reveal the following. Plaintiff was seen at the Holzer Clinic on January 16, 2003 with a six-month history of diarrhea. His symptoms were intermittent but had been ongoing. Various tests, including a colonoscopy, were recommended. (Tr. 299). The colonoscopy showed multiple colon polyps as well as some isolated diverticula. (Tr. 303). He was seen again on May 2, 2003, at which time his diarrhea had markedly improved. A repeat colonoscopy was planned. (Tr. 321). Additional polyps were removed from his colon during that procedure. (Tr. 332).
Plaintiff was again seen at the Holzer Clinic on June 20, 2003 for follow-up on his diabetes. At that time, he complained of occasional pain in his legs, especially after walking, as well as cramping and burning in his feet. He still reported occasional episodes of diarrhea. The assessment included Type II diabetes mellitus under slightly sub-optimal control as well as bilateral leg pain. (Tr. 335-36). He had been seen a month before that for follow-up as to renal failure, which had begun in 1997 and resulted from diabetes and hypertension. The assessment was moderate to severe chronic renal failure with loss of renal function in the 60 to 65 percent range. (Tr. 337-38). The Holzer Clinic records indicate that he had been treated for diabetes and associated symptoms for some time.
Dr. Cho, a state agency examiner, completed a residual functional capacity assessment on May 6, 2003. Dr. Cho concluded that plaintiff could work at the light exertional level and could stand and sit about six hours each in a work day. There were no postural, visual, manipulative, or communicative limitations, and there were no environmental limitations as well. (Tr. 432-36).
Plaintiff's treating physician, Dr. Al-Ataie, submitted a letter dated October 27, 2003. Dr. Al-Ataie stated that plaintiff had been under his care for the past six years and that he had developed multiple complications from diabetes, including diabetic retinopathy, nephropathy, and diabetic neuropathy. Dr. Al-Ataie believed that plaintiff should be placed on disability. (Tr. 443).
Additional treatment notes from the Holzer Clinic were submitted indicating treatment up through January 26, 2004. On that day, plaintiff was doing well although he continued to complain from frequent diarrhea which was attributed to his diabetes. (Tr. 444-45). His condition essentially remained stable throughout the period of treatment.
In addition to plaintiff, a vocational expert, Mr. Tanzey, testified at the administrative hearing. He classified plaintiff's past work as semi-skilled and sedentary. (Tr. 663). He was asked to assume that plaintiff had the residual functional capacity to work at the light exertional level and could stand or walk for six hours. He could also sit for six hours but could climb only occasionally. With those limitations, he could perform his past relevant work as a prep plant control operator. (Tr. 663-64). If, however, plaintiff was as impaired as he testified, he could not work. (Tr. 664).
After the Administrative Law Judge's decision, plaintiff's counsel submitted to the Appeals Council additional records from the Holzer Clinic. Those records were accompanied by a letter from Dr. Pleskova. Dr. Pleskova stated that plaintiff was suffering from metastatic small cell lung cancer which had metastasized to his brain and other parts of his body. She stated that it had become clear that his symptoms of generalized weakness and progressive kidney failure resulted from progressive metastatic cancer and that he had the cancer for at least one year prior to his disability application. Based on that, she believed that he was eligible for disability. (Tr. 8-111). These records were not, of course, considered by the Administrative Law Judge at the time the decision was rendered.
Based on the evidence of record prior to May 12, 2004, the Commissioner concluded that plaintiff suffered from one severe impairment, diabetes. The Commissioner further found that plaintiff had the residual functional capacity to perform essentially a full range of light work. Because his past relevant work as a prep plant control operator did not require the performance of work-related activities in excess of his residual functional capacity, he was found not to be disabled. The Commissioner rejected plaintiff's testimony of more significant symptoms, noting that he was on only one medication for pain and discomfort in his legs, that he did engage in significant walking and other activities requiring walking, and that he continued to smoke against medical advice. (Tr. 118).
In his Statement of Errors, plaintiff raises a number of issues. First, he contends that his case was not properly considered under the Medical-Vocational Guidelines. Second, he asserts that his diabetes should have been found to equal in severity the condition described in Listing 9.08. Next, he considers that the combination of his impairments was not properly considered. Finally, he asserts that the opinion of his treating physician was improperly discounted. As an alternative to these arguments, plaintiff asserts that the case should have been remanded given the new evidence that plaintiff suffered from cancer at least one year prior to diagnosis and, therefore prior to the decision made by the Administrative Law Judge. The underlying issue is whether the Commissioner's decision is supported by substantial evidence. Standd of Review. Under the provisions of 42 U.S.C. Section 405(g), "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 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) (quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is "`more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). The Secretary's findings of fact must be based upon the record as a whole.Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Secretary's decision is supported by substantial evidence, the Court must "`take into account whatever in the record fairly detracts from its weight.'" Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court would reach contrary conclusions of fact, the Secretary's decision must be affirmed so long as his determination is supported by substantial evidence. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983).
Plaintiff's first issue addresses the way in which the Commissioner applied the Medical-Vocational Guidelines. He asserts that, based upon his age, education, and experience, he would be considered disabled under either Rule 201.06 or Rule 202.06 of the Grid. However, the Commissioner specifically found plaintiff not to be disabled in this case because he could return to his past relevant work. When that is so, the Grid is simply inapplicable. Therefore, there was no error in the way in which the Commissioner applied the Medical-Vocational Guidelines.
The next issue is whether disability should have been presumed under Listing § 9.08. That Listing, which applies to diabetes mellitus, presumes disability for an individual if there is evidence of neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements or gait and station, if there is acidosis occurring on the average of once every two months documented by appropriate testing, or if there is retinitis proliferans. Plaintiff's argument focuses on acidosis, asserting that because there were findings of renal metabolical acidosis in July and August of 2003, the Listing was satisfied.
In order for acidosis to satisfy the Listing, it must occur at least on the average once every two months and be documented by appropriate tests. The tests in this record do not demonstrate that frequency. Further, as the Commissioner notes, the only medical opinion as to whether the history of the acidosis tests satisfy the Listing is from the state agency reviewer, Dr. Heban, who concluded that the Listing was not met. Consequently, plaintiff's second argument is without merit.
The Commissioner found that plaintiff's only severe impairment was diabetes and its associated symptoms. Plaintiff asserts that the rest of the impairments of record, although not severe, did cause decreases in residual functional capacity which were not accounted for. However, there is no evidence that the Commissioner disregarded any functional limitations which were supported by the record. Any problems relating to plaintiff's heart condition, visual acuity, intestinal polyps, or bursitis were not so significant that they would have impaired the plaintiff's ability to perform a sedentary job. Consequently, this assignment of error is also without merit.
Next, plaintiff asserts that the opinion of his treating physician as to disability was improperly disregarded. As the Commissioner points out, however, such an opinion, in order to be accepted by the Commissioner, must be supported by appropriate findings and test results which would support a residual functional capacity inconsistent with the performance of work-related activities. Dr. Al-Ataie did not express the opinion that plaintiff could not perform the demands of sedentary work, his notes did not show such limitations, and the other evidence of record supported a finding that plaintiff could work at the sedentary level. Under these circumstances, it was not error for the Commissioner not to accept Dr. Al-Ataie's opinion of disability.
Plaintiff's final assignment of error is that the case should have been or should be remanded based upon new evidence indicating that plaintiff suffered from cancer and that his cancer had caused his functional limitations. The Commissioner is correct that this Court cannot review a decision of the Appeals' Council not to remand the case for further findings, and that the additional evidence submitted to the Appeals Council cannot be considered by this Court in determining whether plaintiff was disabled. Foster v. Halter, 279 F.3d 348 (6th Cir. 2001). Consequently, the only issue is whether the evidence submitted is sufficiently material to suggest that the Commissioner's decision might have been different had the evidence been before the Commissioner at the time the decision was made.
In this case, even though plaintiff was diagnosed with cancer after the Administrative Law Judge's decision, the record did not indicate that any limitations posed by that disease would have impacted plaintiff's ability to perform a sedentary job. Although the reason for plaintiff's functional limitations might have been different, there is nothing to suggest that the functional limitations were any different than those evaluated by the Commissioner at the time of the Administrative Law Judge's decision. That being so, the evidence is not material because it would not have affected the way in which the Commissioner would have decided this case. See Sizemore v. Secretary of HHS, 865 F.2d 709, 711 (6th Cir. 1988).
Based upon the foregoing, it is recommended that the plaintiff's Statement of Errors be overruled and that judgment be entered in favor of the defendant Commissioner.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).