Opinion
CASE NO.: 01-CV-72045-DT
August 15, 2002
OPINION
On June 6, 2001, Plaintiff Zina P. Campbell filed the present action seeking review of a final decision of the Social Security Administration ("SSA") denying her application for disability insurance benefits ("DIB"). Plaintiff filed her application on December 14, 1999, alleging that she became disabled on March 5, 1996, due to depression, neck, back and leg pain. However, the SSA denied benefits initially and upon reconsideration. Upon her request, a de novo hearing was held on August 14, 2000, before Administrative Law Judge ("ALP') Melvyn B. Kalt. In a decision dated November 16, 2000, the ALJ found that Plaintiff retained the residual functional capacity to perform a restricted range of unskilled sedentary work. Accordingly, the Plaintiff was found not disabled. The Appeals Council denied review, and Plaintiff filed the instant suit pursuant to 42 U.S.C § 405(g).
Discussion
"[D]isability insurance benefits are available only to those individuals who can establish `disability' within the terms of the Social Security Act." Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). "Disability" is defined as:
[T]he inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. . . . Id.; 42 U.S.C. § 423(d)(1)(A) 1382c(a)(3)(A). See also Preslar v. Secretary of Health Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). The burden of proving entitlement to benefits is borne by the claimant. Boyes v. Secretary of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994).
The SSA employs the following five step sequential checklist in making disability determinations:
1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition.
2. An individual who is working but does not have a "severe" impairment which significantly limits his or her physical or mental ability to do basic work activities is not disabled.
3. If an individual is not working and has a severe impairment which "meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment(s)," then he or she is disabled regardless of other factors.
4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's previous work. If the claimant is able to continue to do this previous work then he or she is not disabled.
5. If the claimant cannot do any work he or she did in the past because of a severe impairment, then the Secretary considers his or her residual functional capacity, age, education, and past work experience to see if he or she can do other work. If he or she cannot, the claimant is disabled.See Preslar, 14 F.3d at 1110; see also 20 C.F.R. § 404.1520; Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1953, 76 L.Ed.2d 66 (1983).
Under the first four steps of the Defendant's process, the claimant bears the burden of proving that he is disabled. Id. However, "[i]f the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the [SSA]," requiring the SSA "to show that the claimant is able to do other work available in the national economy." Id.
Because Plaintiff had only acquired sufficient coverage to remain insured through December 31, 1997, the ALJ determined that Plaintiff was required to demonstrate that she was under a disability on or before that date, as the extent of any disability occurring after that date was not relevant. (Tr. at 19). Applying this five-step process to the relevant time period in this case, the ALJ determined that (1) Plaintiff had not engaged in any substantial gainful employment since her onset date of March 5, 1996 (Tr. at 15, 19); (2) that Plaintiff suffered from obesity, left knee pain, back pain and asthma, which the ALJ deemed "severe" ( Id. at 16, 19); (3) that Plaintiff did not have a listed impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. § 404, Subpart P, Appendix 1 ( Id.); (4) that Plaintiff could not perform her past relevant work ( Id. at 17-19). In reaching these conclusions the ALJ focused on medical evidence from Plaintiff's onset date (March 5, 1996) through her last insured date (December 31, 1997), or shortly thereafter. (Tr. at 14, 19).
Based upon the testimony and evidence, the ALJ determined that as of March 5, 1996, Plaintiff had the following residual functional capacity:
[T]he claimant retains the [ability] to lift a maximum often pounds, stand two hours out of an eight-hour workday and sit at least six hours of an eight-hour workday. Due to the claimant's depression she would need a job which required no significant concentration and no more than one-two-three step operations. [Lastly], she would need a clean air environment.
(Tr. at 17). Given these limitations, the vocational expert testified that Plaintiff would be capable of making a vocational adjustment to work approximately ten thousand (10,000) "entry level clerical jobs[,]" which included positions such as information clerk, telephone soliciting clerk and telephone order clerk. (Tr. at 58-59). Accordingly, the ALJ determined that Plaintiff was not disabled as of her last insured date of December 31, 1997.
Under 42 U.S.C. § 405(g), this Court has the power to enter a judgment affirming, modifying, or reversing a decision of the Commissioner. However, "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). See also Boyes, 46 F.3d at 511-12; Abbott, 905 F.2d at 922. "Substantial evidence is defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Abbott v. Sullivan, 905 F.2d 918, 922-923 (6th Cir. 1990) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct 1420, 1427, 29 L.Ed.2d 842 (1971)). The SSA's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. Mullen v. Brown, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). If the SSA's decision is supported by substantial evidence, a reviewing court must affirm. Studaway v. Secretary of Health Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987).
On September 18, 2001, both parties voluntarily consented to allow this Magistrate Judge to conduct all proceedings in this case, including entry of a final judgment, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
In her motion, Plaintiff contends that (1) the ALJ "failed to evaluate [her] obesity"; (2) that the ALJ "failed to address whether [her] obesity `equaled' the listing"; (3) that the ALJ "failed to properly address" the severity of her depression; (4) that the ALJ failed to address "[her] need to elevate her left leg"; (5) that the ALJ failed to recognize the vocational expert identified only 10,000 suitable jobs (as opposed to 24,000); and (6) that the ALJ failed to recognize all 10,000 of the remaining clerical jobs "presum[ably] . . . require significant concentration and attention to task." See (Plaintiff's brief p. 6-11).
Despite the above claims of error, this Court is satisfied not only that the ALJ properly evaluated Plaintiff's obesity and depression, but that he justifiably omitted the purported need to elevate her leg from his residual functional capacity determination, and that he correctly relied on the vocational expert's testimony of suitable jobs. Therefore, Defendant's Motion shall be granted because substantial evidence supports the ALJ's step five determination that Plaintiff retained the residual functional capacity to perform the described range of unskilled sedentary work.
1. Obesity
Plaintiff contends solely that the ALJ erred because he "failed to evaluate [her] obesity [,]" however, a cursory reading of his decision proves otherwise. Specifically, the ALJ found at step two that Plaintiff's obesity constituted a severe impairment under the Act. (Tr. at 14-16). He then proceeded to step three and found that, in conjunction with her back pain, knee pain and asthma, none of the SSA's impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, was met or equaled. ( Id. at 16). At step four, in determining whether Plaintiff retained the residual functional capacity to perform her past; work, the ALJ evaluated the entire record relating to each of the severe impairments, and paid particular attention to those documents discussing her knee condition, which the record physicians inextricably tied to her obesity. ( Id. at 15-17). The same is true at step five, where the ALJ posed his residual functional capacity assessment to the vocational expert to determine whether she was capable of substantial gainful activity. ( Id. at 17-19). Accordingly, Plaintiff's claim that the ALJ failed to evaluate her obesity is false and shall be denied.
This is especially important because there are no record evaluations of Plaintiff's "obesity" per se, which is often the case in disability actions.
Plaintiff also contends that the ALJ erred because he failed to evaluate whether she satisfied the SSA's listing for obesity, § 9.09, before it was deleted on October 25, 1999. See Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 F.R. 46122, 1999 WL 637689 (August 24, 1999). However, Plaintiff's argument is meritless because she did not file her disability benefits application until at least November 30, 1999. See Social Security Ruling ("SSR") 00-3p, 2000 WL 628049 (May 15, 2000) (stating that "[t]he final rules deleting [L]isting [§] 9.09 apply to claims that were filed before October 25, 1999, and [those] that were awaiting an initial determination or that were pending appeal at any level of the administrative review process or that had been appealed to court."). In other words, Plaintiff's argument fails because at the time the SSA deleted Listing § 9.09, she did not have a disability application pending. And, as the Defendant points out, Plaintiff's reliance on SSR 00-3p and Nash v. Apfel, 2000 WL 710491 (10th Cir. 2000), reiterates this fact. Hence, Plaintiff's claim that the ALJ failed to evaluate her obesity under the SSA's former Listing § 9.09 shall be denied.
There is some discrepancy as to when Plaintiff filed her application. The Plaintiff's Motion states (as did the ALJ) that the application was filed on December 14, 1999, and Defendant's Motion states that the application was filed on November 30, 1999. This discrepancy is not easily solved by examining the disability application form itself. See (Tr. at 76-78). Nonetheless, both dates are subsequent to October 25, 1999.
2. The Proposed "Need" to Elevate the Left Leg
Plaintiff contends that the ALJ erred because he did not mention in his hypothetical that she needed to elevate her leg four to five hours per day. In support, Plaintiff states merely that the vocational expert testified that she would be unable to work if this restriction was credited. See (Plaintiff's brief p. 8-10).
The ALJ is not obligated to incorporate unsubstantiated complaints into his hypothetical questions. See Stanley v. Health Human Servs., 39 F.3d 115, 118 (6th Cir. 1994). The ALJ is only required to include in his hypothetical questions those limitations that accurately portray a claimant's physical and mental impairments. See Varley v. Secretary of Health Human Servs, 820 F.2d 777, 779 (1987).
Here, the ALJ properly omitted any hypothetical reference to Plaintiff's testimony that she was told by an unnamed physician to elevate her left leg above her hip four to five hours per day when she was not in physical therapy. See (Tr. at 39-40). The record of Plaintiff's participation in physical therapy (comprising the bulk of the record) during the relevant period between March 5, 1996 and December 31, 1997, does not substantiate her testimony. Specifically, Concentra Occupational Health Center ("Concentra") records show that Plaintiff was authorized to work with slight restrictions such as a sit stand option, no excessive bending and no lifting over twenty pounds, between March 21, 1996 (the beginning of her treatment with Concentra) and July 31, 1996. See ( Id. at 163-183). Only for the period between late July 31 and August 13, 1996 (the close of her treatment with Concentra) was Plaintiff restricted to "limited walking[.]" ( Id.)
Furthermore, the records from Plaintiff's treating physician, Dr. Henry Goitz, show that she was only restricted from work for three months, between September 13, 1996 and December 13, 1996. See ( Id. at 194, 197-202, 212-215). Throughout her treatment with Dr. Goitz between December 13, 1996 and July 23, 1997 (the close of the pre-expiration record), she was authorized to perform "sit down" work. See ( Id. at 190-194, 204-211). There are no other medical evaluations of Plaintiff's condition until February 2000, over two years after her date last insured.
Accordingly, Plaintiff is unable to establish that she was required to elevate her leg for four to five hours per day, much less claim that it was prescribed, when the record shows that she was authorized to perform sedentary work for all but four and one half months during the relevant period between March 5, 1996 and December 31, 1997. Therefore, Plaintiff's claim that the ALJ erred because he did not incorporate her unsubstantiated testimony into the hypothetical shall be denied. Stanley, 39 F.3d at 118; Varley, 820 F.2d at 779.
3. The Vocational Expert's Testimony of Suitable Jobs
Plaintiff contends that the jobs relied upon by the ALJ at step five do not reflect the hypothetical question he posed to the vocational expert. First, she points out that the number of suitable jobs identified by the vocational expert was ten thousand (10,000) as opposed to twenty four thousand (24,000). Second, she claims that "the record does not indicate that the level of concentration required [for] the [remaining ten thousand] clerical jobs was stated" and, as such, "[i]t [should be] presumed that the clerical jobs would require significant concentration and attention to task." See (Plaintiff's brief p. 8).
Plaintiff is mistaken. As indicated above, the ALJ misstated the number of jobs identified by the vocational expert. However, the record of his interaction with the minimal concentration and one to three step tasks to accommodate Plaintiff's depression. (Tr. at 58-59). In other words, the vocational expert's response to the ALJ's supplemental inquiry about Plaintiff's environmental restrictions merely resulted in a reduction of the previous number of jobs by five thousand. ( Id.). As such, Plaintiff's claim that the remaining ten thousand unskilled sedentary clerical jobs required "significant concentration and attention to task" is false and shall be denied.
Plaintiff summarily asserts that the ALJ failed to properly evaluate her depression. See (Plaintiff's brief p. 8-9). However, she does not claim that the ALJ's residual functional capacity determination failed to incorporate the alleged severity of her depression. She contends only that the jobs identified by the vocational expert failed to incorporate her depression-related concentration restrictions. And, as seen here, the ALJ incorporated those very restrictions into the hypothetical posed to the vocational expert at step five. Therefore, the Court need not further address Plaintiff's claim that the ALJ improperly evaluated her depression.
The ALJ's misstatement of the number of suitable jobs is inconsequential because ten thousand jobs constitute a "significant" number of jobs. See Born v. Secretary of Health Human Servs, 923 F.2d 1168, 1174 (6th Cir. 1990).
Conclusion
For the reasons stated, Plaintiff's motion for summary judgment shall be denied, Defendant's motion for summary judgment shall be granted, and Plaintiff's complaint shall be dismissed.A judgement consistent with this Opinion shall issue forthwith.