Opinion
Case Number 01-10367-BC.
December 29, 2004
The plaintiff filed the present action on November 28, 2001 seeking review of the Commissioner's decision denying the plaintiff's claims for a period of disability, disability insurance benefits, and supplemental security income benefits under Titles II and XVI of the Social Security Act. The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and award her benefits, or remand for further assessment of her mental impairment. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner's decision. Magistrate Judge Binder filed a report and recommendation on July 17, 2002 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation, and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, and the plaintiff's objections and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff is not disabled. The plaintiff presented claims of disability based on both physical and mental impairments. The ALJ determined that the plaintiff retained the capacity to perform a range of sedentary work and that her mental impairment would not prevent gainful activity. The plaintiff argued in her motion for summary judgment that the ALJ's decision was not supported by substantial evidence because he failed to give proper weight to the opinions of the plaintiff's treating physicians concerning both impairments, and as a result the ALJ's hypothetical question posed to a vocational expert witness at the administrative hearing was incomplete as to the plaintiff's limitations. Her objections to the magistrate judge's report focused on his assessment of the plaintiff's psychiatric impairment and the hypothetical questions posed to the vocational expert.
The plaintiff, presently forty-seven years old, applied for a period of disability, disability insurance benefits, and supplemental security income on July 30, 1997 when she was thirty-nine years old. She had worked from 1989 to 1996 in various positions, including an employment service interviewer, assistant case worker, admission clerk, and physical therapy technician. Starting in 1995, the plaintiff has received therapy and testing for complaints of mood disorders and anxiety. The plaintiff had last worked on October 6, 1996, which was the date she alleged her disability began when she was injured in an automobile accident. The injuries to her back, neck, head, and shoulder resulting from the accident caused headaches and chronic pain in her neck, back, and extremities. The shoulder injury limited the range of movement in her right arm. In January 1998, the plaintiff slipped on ice and suffered muscle sprain injuries to her neck, left hip, and leg. She has been diagnosed as suffering from cervical strain and generalized myositis. Doctors have also diagnosed post traumatic stress disorder and dysthymia.
In her application for benefits, the plaintiff alleged that she was unable to work due to chronic pain syndrome, characterized by excruciating and constant pain. On August 8, 1999, the plaintiff appeared before ALJ John A. Ransom when she was forty-one years old. ALJ Ransom filed a decision on September 22, 1999 in which he found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since October 6, 1996 (step one); the plaintiff suffered from substantial impairments consisting of cervical strain, generalized myositis, dysthymia, and post traumatic stress disorder, which were "severe" within the meaning of the Social Security Act (step two); none of these impairments alone or in combination met or equaled a listing in the regulations (step three); and that the plaintiff could not perform her previous work, which was assessed as semi-skilled and requiring sedentary to medium exertion (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform a range of sedentary and unskilled work restricted to lifting no more than ten pounds; allowing sit and stand options; no repetitive bending, twisting or turning; performing only simple, repetitive, low stress work; and limited contact with the public and co-workers. Relying on the testimony of a vocational expert, the ALJ found that there were a significant number of jobs in the national economy suitable for the plaintiff because she could perform a significant range of sedentary and unskilled work, and that jobs such as assembler, machine operator, inspector, security monitor, sorter, and timekeeper fit within those limitations. Based on that finding and using the Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on October 3, 2001.
The medical evidence is summarized by the magistrate judge in his report and need not be repeated here in detail. All parties agree with the magistrate judge that the plaintiff has the burden of proving disability in order to qualify for social security disability and supplemental security income benefits, and that "disability" is defined as the "inability to engage in any substantial gainful activity" due to a "physical or mental impairment" that could cause death or might reasonably be expected to last continuously for at least twelve months. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Of course, a person is not disabled merely because her limitation prevents her from performing previous work if that person can perform other "substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The parties also accept the rule that the authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and "whether there is substantial evidence in the record to support the findings." Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)).
The plaintiff focuses on the opinions of Dr. Dennis Giannini, who opined that the plaintiff had a "class 5" physical impairment that prevented her from performing even sedentary work, and Dr. Arthur Hughett, a psychiatrist, who completed two assessment questionnaires in which he concluded that the plaintiff's deficiencies in concentration were severe. The plaintiff claims that these opinions should receive controlling weight and that they establish her disability.
The so-called "Treating Physician Rule" promulgated by the Secretary states that "more weight [will be given] to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(d)(2). The Sixth Circuit has consistently applied this rule. A treating physician's opinion should be given greater weight than those opinions of consultative physicians who are hired for the purpose of litigation and who examine the claimant only once. See Jones v. Sec.'y of Health Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991); Farris v. Sec'y of Health Human Servs., 773 F.2d 85, 90 (6th Cir. 1985). If a treating physician's opinion is not contradicted, complete deference must be given to it. Walker v. Sec'y of Health Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). However, a treating physician's opinion may be rejected if there is good reason to do so. Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988). The Sixth Circuit has held that treating physicians' opinions "are only given such deference when supported by objective clinical evidence." Warner v. Comm'r of Soc. Sec., 375 F.3d 378, 390 (6th Cir. 2004) (citing Jones v. Comm'r of Soc. Sec., 336 F. 3d 469, 477 (6th Cir. 2003). Where a treating physician renders an opinion using legal language as opposed to medical terminology, the Court may likewise reject it if it is not supported by clinical evidence in the record. See Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993).
The opinion of Dr. Giannini was not disregarded by the ALJ. However, the doctor's disability statement rendered on May 27, 1998 was modified a month later when he stated that the plaintiff could return to work the following week with a lifting restriction of twenty pounds. The ALJ's restriction of ten pounds was more generous to the plaintiff, and the exertional limitation documented by her doctor supported the residual functional capacity finding made by the ALJ.
The ALJ's mental impairment assessment was made according to the regulations in effect at the time of the administrative hearing. Under those regulations, to evaluate a claim of disability based on mental impairment the Commissioner was required to utilize a standard Psychiatric Review Technique Form, which must be completed by a medical consultant when initially reviewing an application and on reconsideration. The form must be completed at the administrative hearing level by a medical consultant or the ALJ based on medical information in the record. The standard form, completed by the ALJ, was made part of the record pursuant to the statutory obligation established in 42 U.S.C. § 421(h), which is intended to insure that a qualified mental health professional evaluates a mental impairment and any applicable residual functional capacity before a determination of disability is made. In addition, pursuant to the statute, the Commissioner has prescribed rules for evaluating mental impairments. See 20 C.F.R. § 404.1520a. According to the prescribed procedure, the Commissioner first determines whether there is a medically determinable mental disorder specified in one of eight diagnostic categories. See 20 C.F.R. § 404.1520a; 20 C.F.R. Pt. 404. Subpt. P, App. 1 § 12.00A. The clinical findings are referred to as the "A" criteria. Thereafter, the Commissioner measures the severity of a mental disorder in terms of functional restrictions, known as the "B" criteria, by determining the frequency and intensity of the deficits.
According to 20 C.F.R. § 404.1520a(b)(3), the "B" criteria require an evaluation in four areas with a relative rating for each area. Thus, the Commissioner must evaluate activities of daily living and social functioning and rate those on a five-point scale ranging through none, slight, moderate, marked and extreme. A third area — concentration, persistence, or pace — is rated on a five-point scale ranging through never, seldom, often, frequent, and constant. The fourth area — deterioration or decompensation in work or work-like settings — calls for a rating of never, once or twice, repeated (3 or more), and continual. If the mental impairment has been determined to be "severe," the ALJ then determines whether the impairment meets one of the Commissioner's listings and at least two of the "B" criteria have been met. A claimant must be found to have conditions listed in the last two points of each of the scales in at least two of the "B" criteria in order to establish a limitation "which is incompatible with the ability to perform the work-related function." Id. If the impairment is not disabling, but has been found to be "severe," the ALJ must perform a residual functional capacity assessment to determine whether the claimant is able to perform some jobs in spite of the mental limitations.
In this case, the ALJ's notations on the form which he completed indicate that the plaintiff suffered from organic mental disorders, affective disorders, anxiety related disorders, and substance addiction disorders. As to functional limitations (the "B" criteria), the ALJ found only "slight" limitations in activities of daily living, "moderate" limitations in maintaining social functioning, deficiencies of concentration, persistence or pace were "often," and decompensation at work occurred "never." The psychiatric form, however, lists "moderate" difficulty in maintaining social functioning; and deficiencies in concentration, persistence or pace occurred "often." Neither of these listings, however, fell within the last two points of the respective scales, and therefore did not constitute a finding that the plaintiff's limitations were incompatible with work functions. Substantial evidence in the record does not exist which suggests otherwise. There is no "marked" limitation in any of the four categories inasmuch as the plaintiff has not shown that the mental impairments "seriously interfere with the ability to function independently, appropriately and effectively." Foster v. Bowen, 853 F.2d 488, 491 (6th Cir. 1988).
Dr. Hughett found that the plaintiff's ability to concentrate was more severely impaired than the ALJ determined. The ALJ rejected Dr. Hughett's opinion because it was not based on clinical findings or laboratory tests, but rather, according to the form Dr. Hughett completed, it was taken solely from the plaintiff's self-reports. In addition, the opinion was contradicted by a psychological examination completed on February 19, 1998 by Dr. Firoza B. Van Horn, a psychologist. The results of that examination are recited by the magistrate judge in his report. Dr. Van Horn assessed the plaintiff's global assessment of functioning (GAF) at 70 to 72. The GAF scale is reflected in Axis V of a differential diagnosis. "Axis V is for reporting the clinician's judgment of the individual's overall level of functioning. This information is useful in planning treatment and measuring its impact, and in predicting outcome. The reporting of overall [psychological, social, and occupational] functioning of Axis V is done using the Global Assessment of Functioning (GAF) Scale." See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders — Text Revision 34 ( DSM-IV-TR), 30 (4th ed. 2000). A GAF of 71 to 80 indicates no more than slight impairment in areas such as social or occupational functioning. Ibid.
The plaintiff argues nonetheless that the ALJ's hypothetical question to the vocational expert witness did not account for concentration deficiencies that occurred "often." It is well established that assessment of residual functional capacity for work must be made only after all of a claimant's limitations have been taken into account. 20 C.F.R. § 416.945. Further, a hypothetical question posed to a vocational expert must include a "complete assessment of [the claimant's] physical and mental state and should include an accurate portrayal of her individual physical and mental impairments." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (internal quotes and alterations omitted) (quoting Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)).
In this case, the ALJ included in his hypothetical question the limitations of only simple, repetitive tasks involving low-stress work and limited contact with co-workers and the public. These limitations adequately addressed the mental impairments found by the ALJ. Moreover, the rule that a hypothetical question must incorporate all of the claimant's physical and mental limitations does not divest the ALJ of his obligation to assess credibility and determine the facts. In fashioning the hypothetical question to be posed to the vocational expert, the ALJ "is required to incorporate only those limitations accepted as credible by the finder of fact." Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). "[A]n ALJ is not required to accept a claimant's subjective complaints and may properly consider the credibility of a claimant when making a determination of disability," and "can present a hypothetical to the [vocational expert] on the basis of his own assessment if he reasonably deems the claimant's testimony to be inaccurate." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). The Court believes that the limitations included by the ALJ were consistent with these principles.
As observed above, the Court's task in reviewing a Social Security disability determination is a limited one. The ALJ's findings are conclusive if they are supported by substantial evidence, according to 42 U.S.C. § 405(g). Thus, where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec. of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The Sixth Circuit has stated that the role of the Court "is not to resolve conflicting evidence in the record or to examine the credibility of the claimant's testimony." Wright, 321 F.3d at 614. Therefore, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
After a de novo review of the entire record and the materials submitted by the parties, the Court is constrained to agree with the magistrate judge that substantial evidence in the whole record supports the Commissioner's decision that the plaintiff was capable of gainful activity and therefore was not disabled within the meaning of the Social Security Act.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 13] is ADOPTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 7] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 12] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.