Opinion
Case No: 01-CV-73970
February 28, 2003
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is before the Court on Magistrate Judge Wallace Capel, Jr.'s Report and Recommendation dated November 27, 2002. Defendant filed timely objections to the Magistrate Judge's Report and Recommendation on November 27, 2002.
For the reasons set forth below, the Court ACCEPTS Magistrate Judge Wallace Capel, Jr.'s Report and Recommendation. Accordingly, this Court affirms Magistrate Judge Wallace Capel, Jr.'s recommendation; affirms the decision of the Administrative Law Judge (ALJ); DENIES Plaintiff's Motion for Summary Judgment; and GRANTS Defendant's Motion for Summary Judgment, thus resulting in the denial of disability insurance benefits.
II. Standard of Review Relative To The Magistrate's Recommendation
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." 28 U.S.C. § 636(b)(1)(C). The Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. III. Standard of Review of ALJ Decisions
The Court reviews the ALJ's non-disability finding to determine whether that finding is supported by substantial evidence. See, 42 U.S.C. § 405(g) . Substantial evidence is more than a scintilla of evidence but less than a preponderance and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Walters v. Commissioner of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); See also, Brainard v. Sec'y of Health Human Servs., 889 F.2d 679 (6th Cir. 1989). In performing this review, the Court considers the record as a whole. See, Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). However, the Court does not review the evidence de novo, make credibility determinations nor weigh the evidence. Brainard, supra IV. Statement of Facts
Plaintiff was forty-five years old on the date of the ALJ's decision. He is a high school graduate and has earned an associates degree in art. At the time Plaintiff allegedly became disabled, on February 14, 1998, he worked for Chrysler as a line loader, job setter and maintenance person. Plaintiff's claimed disability came about due to depression and a nervous break-down. Plaintiff asserts that he is not able to work due to the side-effects of the medication (drowsiness) he uses to control his depression and associated emotional problems. Plaintiff filed for social security benefits on September 8, 1998, however, the Social Security Administration (SSA), denied benefits initially and upon reconsideration. A de novo hearing was held on February 1, 2000 before the ALJ, Alfred H. Varga; and he issued a decision on April 14, 2000 indicating that although Plaintiff was unable to perform his past work, he retained the residual functional capacity (RFC) to perform a limited range of unskilled light and sedentary work ("20,000 suitable jobs in the areas of janitorial maintenance, industrial processing, simply assembly, packaging and visual inspection"). ( Magistrate Judge's Report and Recommendation, pg. 3). Therefore, Plaintiff was found not to be disabled and was denied social security benefits.
IV. Analysis
A. The Five Step Disability Analysis Test Its Application To This Case
A five-step sequential analysis is used by the courts in making a disability determination. If it is determined that a claimant is or is not disabled at any point in the five-step review, further review is not necessary. 20 C.F.R. § 404.1520; Preslar v. Secretary of Health Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988). "The Claimant bears the burden through the first four steps, including the burden of proving the existence and severity of any functional limitations caused by his impairments, as well as the burden of proving that his impairments preclude him from performing his past relevant work." (Defendant's Motion for Summary Judgment, pg. 9); See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Her v. Commissioner of Social Security, 203 F.3d 388, 391-92 (6th Cir. 1999). At step five, the Commissioner must produce evidence of jobs that exist in significant numbers in the national economy that the claimant can perform, given his age, education, work experience, and residual functional capacity." Id.
First, if a claimant is working and engaged in substantial gainful activity, he or she will not be considered disabled. The ALJ in this case determined that the Plaintiff had not engaged in substantial gainful activity since the alleged date that she became disabled on February 14, 1998. (Decision of the ALJ dated April 14, 2000).
Relative to step two of the analysis, this factor requires that the claimant have a severe impairment or combination of impairments that significantly limit his or her ability to do basic work activities in order to demonstrate a disabled status. The ALJ found that "although Plaintiff suffers from depressive and anxiety disorders and a history of substance abuse (non-material or contributing), he does not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. § 404, Subpart P, Appendix 1." ( Magistrate Judge's Report and Recommendation, pg. 3). Third, if the claimant has an impairment that meets or equals one of the impairments listed in the regulations, the claimant is presumed to be disabled without further analysis. However, in this case, the Plaintiff's impairments were not listed in the listing of Impairments (Appendix 1, Subpart P, Regulations No. 4).
Fourth, if the claimant has the residual functional capacity (RFC) to perform "past relevant work," he or she is not disabled. The ALJ in this matter concluded that the Plaintiff was not able to perform his past relevant work. Therefore, the determination as to whether the Plaintiff in this case would be entitled to disability insurance benefits turns upon the fifth step of the analysis which states that if an individual cannot perform "past relevant work," the residual functional capacity, age, education, and past work experience are considered to determine if other work can be performed. The Plaintiff could only be entitled to disability benefits if he is not able to perform other work in the economy. § 404.1520(f). The ALJ in this case determined that "Plaintiff retained the residual functional capacity ("RFC") to perform the restricted range of unskilled light and sedentary work described above." (Report and Recommendation, pg. 3). Consequently, the ALJ determined that Plaintiff was not disabled and denied his request for disability insurance benefits.
1. Medication Side-Effects
Plaintiff contends that the ALJ failed to adopt his subjective complaints, resulting from the medication he was taking, of drowsiness, tiredness, sleepiness, and needing to take a nap at least three times per day. If the Plaintiff's subjective complaints were "fully credited," there would be a finding that Plaintiff's condition was "work-preclusive." ( Plaintiff's Objections to Magistrate Judge's Report and Recommendation).
Subjective complaints must be considered in accordance with 20 C.F.R. § 404.1529. . . . This regulation requires a two-step process for evaluating subjective symptoms. First, the ALJ must consider whether there is an underlying medically determinable physical or mental impairment or impairments established by medically acceptable clinical and laboratory diagnostic techniques which could reasonably be expected to produce the individual's symptoms. Second, if such underlying physical or mental impairment or impairments have been found, the ALJ must evaluate the intensity, persistence and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.
In order to make these determinations, the ALJ must make a findings in regard to the credibility of the individual's testimony and statement based upon his evaluation of the entire case record. Any allegation of diminishment of the Plaintiff's capacity for basic work activities must be supported by the objective medical evidence and other evidence in the case record.Sullivan v. Apfel, 2000 WL 1568330, pg. 11 (S.D. Ala.). As in Sullivan, the ALJ in this case did not find Plaintiff's subjective complaints to be credible, nor did Plaintiff's medical records show that he suffered from medication side-effects. Plaintiff's Objections to the Magistrate Judge's Report and Recommendation glosses over these findings by stating that if the ALJ had given full credit to Plaintiff's subjective complaints regarding the medication side-effects, he would have found him to be disabled. This does not negate the fact that the Plaintiff's medical records do not establish any showing of negative medication side-effects nor the ALJ's assessment of Plaintiff's testimony.
Based upon this Court's review of what the evidence was before the ALJ, regarding Plaintiff's medication side-effect complaints (medical records, oral testimony), a review of the pleadings, and the Court's review of the ALJ's decision, the Court is satisfied that the ALJ took the proper factors into consideration when evaluating Plaintiff's subjective complaints about the side-effects he was allegedly suffering as a result of his medication intake. Since this Court cannot review the record below de novo, nor assess the credibility of the witness testimony, the Court agrees with Magistrate Judge Capel, Jr.'s recommendation on this issue and finds that Plaintiff's subjective complaints about the disabling medication side-effects were given the proper amount of consideration by the ALJ in his Decision.
2. The ALJ's Hypothetical Vocational Restrictions
"Plaintiff also contends that the ALJ erred because he did not incorporate select findings from the Agency's Psychiatric Review Technique Form (PRTF) into the hypothetical posed to the [Vocational Expert] VE at Step Five." ( Report and Recommendation, pg. 6). "More specifically, Plaintiff contends that the ALJ's hypothetical is flawed because it did not specifically reference the PRTF-related finding that he "often" suffered from deficiencies in concentration, persistence or pace." Id.
A vocational expert's testimony can constitute substantial evidence to support a finding that a claimant is capable of performing a significant number of jobs in the local, regional and national economy. Bradford v. Secretary of Health and Human Services, 803 F.2d 871, 874 (6th Cir. 1986). However, one can rely on vocational expert testimony as substantial evidence only "if the [hypothetical] question accurately portrays [the claimant's] individual physical and mental impairments." Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987) ( quoting Podedworny v. Harris, 745 F.2d 210, 218 (3rd Cir. 1984)). A hypothetical question is not erroneous where at least one doctor substantiates the information contained therein. Hardaway v. Secretary of Health and Human Services, 823 F.2d 922, 927-28 (6th Cir. 1987). Further, there is no requirement that the ALJ's hypothetical question to a vocational expert include the claimant s unsubstantiated complaints. Id.
Plaintiff argues that the ALJ failed to submit for the VE's consideration the fact that he " often " suffers from difficulties in concentration, persistence or pace as allegedly supported by Dr. X. White's treatment notes. However, "the ALJ recognized that Dr. X. White's treatment notes [were] devoid of objective test data and [did] not support the summary indications of total disability made to the SSA in December 1999, most notably, that Plaintiff had . . . constant deficits in concentration, persistence or pace . . ." (Magistrate Judge's Report and Recommendation, pg. 9) (emphasis added). The Court finds that the ALJ did not err in omitting the frequency of the abovementioned deficits in light of Dr. M. Bautista and Dr. J. Gilkey's consultative reports. The ALJ is not bound to accept conclusory diagnoses that are unsupported by detailed objective criteria, as was the case with Dr. X. White's report.
Drs. M. Bautista and J. Gilkey, who examined Plaintiff in the post-onset period, submitted reports containing objectively verifiable data and information contrary to Dr. X. White's notes. Drs. M. Bautista and J. Gilkey opined that although Plaintiff was "anxious, depressed, fidgety, angry at times, suspicious reluctant to talk about his reasons for leaving work, and under severe economic stress, he was timely, pleasant, cooperative, quiet, reasonably dressed, respectful and appropriate," had good sleeping habits and appetite, could communicate effectively, got along with family members, maintained friendships/relationships with previous co-workers, could perform simple calculations, could recall simply objects and basic information on the whole, was alert and oriented, was aware of his financial obligations, could engage in shopping and take care of his personal needs, etc. Id. at 10. "Such findings simply do not support Plaintiff's (or Dr. X. White's) contention that he suffers from permanent, ongoing deficits in concentration, persistence or pace that would preclude the performance of all work." Id. The RFC assessments, which were collectively based upon the reports of Drs. X. White, M. Bautista and J. Gilkey found that Plaintiff was "moderately limited in the following areas: `his ability to understand and remember detailed instructions[,]' his `ability to carry out detailed instructions[,]' his `ability to interact appropriate with the general public[,]' his `ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes[,]' and, lastly his `ability to set realistic goals or make plans independently of others[.]'" Id. at 11.
Even if there was error by the ALJ in not including the frequency of the referenced deficits to the VE, it would have been harmless because the ALJ incorporated into his VE hypothetical relevant and objective factors from each of the examining physicians, including Dr. X. White. There was substantial record evidence to support the ALJ's decision not to specifically include the term "often" in the hypotheticals posed to the VE.
V. Conclusion
For the reasons set forth above, the Court ACCEPTS Magistrate Judge Wallace Capel, Jr.'s Report and Recommendation [Docket No. 11-1]. Accordingly, this Court affirms Magistrate Judge Wallace Capel, Jr.'s recommendation and affirms the decision of the ALJ, resulting in the denial of disability insurance benefits.
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment [Docket No: 10-1] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment [Docket No: 9-1] is DENIED.