Opinion
Case No. 01-CV-72190-DT
June 30, 2002
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Magistrate Judge Virginia Morgan's Report and Recommendation dated June 4, 2002. Plaintiff filed Objections to the Magistrate Judge's Report and Recommendations on June 13, 2002.
The Court has had an opportunity to review this matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons with respect to his finding that the ALJ's decision is supported by substantial evidence in the record. Accordingly, the Court: ACCEPTS the Magistrate Judge's Report and Recommendation; DENIES Plaintiffs Motion for Summary Judgment; and GRANTS Defendant's Motion for Summary Judgment.
I. FACTS/BACKGROUND
Plaintiff Ilah Dodds was born on January 19, 1940 and was 58 years old as of September 30, 1998, the date she was last insured. She earned her GED and took classes in office procedures and computers in 1993. Plaintiff performed clerical work for Oaktech Temporaries, Inc., from 1993 to 1998. Her job functions included copying, assembling mailings and cleaning out files. She reported that her job involved sitting for seven hours a day, standing for 1/2 hour a day, walking for 1/2 hour a day, and reaching but did not involve climbing, bending, squatting, pushing/pulling, or lifting and/or carrying. Plaintiff also has prior work experience as a school bus driver and custodian.
To qualify for benefits, Plaintiff was required to demonstrate that she was disabled on or before the date of termination of her insured status. 20 C.F.R. § 404.131 (b)(1) (1997); Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
On March 2, 2000, Plaintiff filed the instant action alleging a disability onset date of January 31, 1995. Following an initial determination denying the claim, Plaintiff filed a timely Request for Hearing. Administrative Law Judge Michael F. Wilenkin ("the ALJ") held a hearing on March 28, 2001. At the hearing, Plaintiff testified that she stopped working as a clerk in 1998 because her health was getting worse and she "just couldn't do the work." Plaintiff also stated at the hearing that she experiences constant and persistent pain in her neck. Plaintiff alleged that the pain, described as sharp and stiff, is present in the back of her neck, primarily on the right side, and goes down into her shoulders and up unto her head. Plaintiff further stated that she performs exercises and takes medication to alleviate "some" of the pain. Although Plaintiff has not attended physical therapy, such treatment has been prescribed. No surgery has been recommended.
In March 2001, however, Plaintiff reported that the employer terminated her employment because the company was switching to executive secretaries, a position for which she did not qualify.
Plaintiff also claims that she can no longer work because of pain in her lower back, which extends to both hips. She experiences constant, burning pain and has recently had numbness in her back, hips, and down her right leg. The pain causes sleeping difficulties. Plaintiff states that she also does exercises for her back. Plaintiff claims that these exercises are futile. Surgery has not been recommended. Additionally, Plaintiff stated that she has arthritis in her ankles and that she experiences pain with standing and walking. However, she does not use assistive devices. Plaintiff also testified to having difficulty hearing. She wears hearing aids in both ears. Plaintiff claimed to hear most of the questions posed by the ALJ at the hearing, but only because there was minimal background noise in the room.
Plaintiff, who lives in a mobile home, performs her personal needs and does some household chores such as laundry, a little vacuuming, and very little cooking. Plaintiff is able to drive, tries to sew and read, visits her mother, and attends church. She reported in March 2000 that she sold crafts she created with her sister at local craft shows six to seven times a year.
After hearing Plaintiffs testimony and testimony from various medical experts, the ALJ entered a decision on May 15, 2001. The May 15, 2001 decision found that Plaintiff was not disabled because she could return to her past relevant work as a clerical. Thereafter, Plaintiff properly sought review in this Court.
II. STANDARD OF REVIEW
This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405 (g). Judicial review of the Commissioner's decision is limited to determining whether the findings of fact made by the Commissioner are supported by substantial evidence and whether the Commissioner employed the proper legal criteria in reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The credibility findings of an ALJ must not be discarded lightly and should be accorded great deference. Hardaway v. Sec. of Health and Human Servs., 823 F.2d 922, 928 (6th Cir. 1987). Because a district court's review of an ALJ's decision is not a de novo review, this Court may not resolve conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at 397.
The Commissioner's findings of fact must be based upon the record as a whole. See Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Sec'y of Health Human Servs., 736 F.2d 365, 366 (6th Cir. 1984); Fraley v. Sec'y of Health Human Servs., 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Commissioner's decision is supported by substantial evidence, the Court must "take into account whatever in the record fairly detracts from its weight." Beavers v. Sec'y of Health, Educ. Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); see also Wages v. Sec'y of Health Human Servs., 755 F.2d 495, 497 (6th Cir. 1985). An administrative decision must be affirmed if supported by substantial evidence, even if the Court might arrive at a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
III. ANALYSIS
To aid in making disability determinations under the Act, the Commissioner has established a five-step sequential analysis the ALJ must follow. If it is determined that a claimant is not disabled at any point in the five-step review, further review is not necessary. 20 C.F.R. § 404.1520; Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988). First, if a claimant is working and engaged in substantial gainful activity, she will not be considered disabled. Second, the claimant must have a severe impairment or combination of impairments that significantly limit her ability to do basic work activities, or she will not be considered disabled. 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. Fourth, if the claimant has the residual functional capacity to perform "past relevant work" she is not disabled. Fifth, 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 claimant is entitled to disability benefits only if she is not able to perform other work. 20 C.F.R. §§ 404.1520(f) and 416.920 (f).
In this case, the ALJ concluded that Plaintiff retained the functional capacity to perform her past relevant work prior to the expiration of her insured status. Plaintiff objects to the Magistrate Judge's conclusion in this regard. See Pl.s' Objections to Magistrate Judge's Report and Recommendation and Brief in Support Thereof at 1-2 (hereinafter referred to as "Pl.'s Br."). As did the Magistrate Judge, so does this Court concur with the ALJ's assessment.
Plaintiff argues that the Magistrate Judge's Report and Recommendation should not be adopted because no Vocational Expert ("VE") was present at the hearing to offer testimony. Plaintiff further claims that the ALJ never expressly classified the Plaintiff's past relevant work, but only stated that the Plaintiff had a residual functional capacity to perform a full range of sedentary work. According to Plaintiff, the ALJ erroneously assessed Plaintiff because, in the forms she filed with the Social Security Administration, Plaintiff stated that her clerical job required that she stand for four hours, sit for four hours, and had to lift less ten (10) pounds. Plaintiff also stated that she had to stoop throughout the course of the day. Arguing that the ALJ never developed specific job requirements when asking about her employment as a clerical worker and that neither the ALJ nor the Magistrate Judge had the benefit of VE testimony, Plaintiff contends that the ALJ and the Magistrate Judge erred.
This Court agrees with the Magistrate Judge that the ALJ was not required to consult a VE to determine Plaintiffs residual functional capacity. Determining past relevant work experience is involves a determination of the "physical and mental demands of jobs a claimant has performed in the past." See Magistrate Judge's Report and Recommendation at 11 (hereinafter referred to as "MJRR") (citing SSR 82-62, 1982 WL 31386). In this regard, the claimant is the "primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work." Id. Such an inquiry occurs at Step 4 and does not require the use of vocational testimony. See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996).
The Court acknowledges that Plaintiff initially reported that her clerical job involved sitting and standing, each for four hours a day. The Court also notes, however, that in her work history report submitted to the ALJ prior to March 28, 2001 hearing, Plaintiff reported that her clerical job involved sitting seven hours a day, walking and/or standing the remaining hour, and no lifting. The Court agrees with the Magistrate Judge's conclusion that "[t]hese demands are consistent with the ALJ's finding that [P]laintiff had the residual functional capacity to perform a full range of sedentary work." See MJRR at 12.
Additionally, Plaintiff admits that she was terminated in 1998 because she was no longer qualified for the position. Thus, notwithstanding the fact that Plaintiff testified that she stopped working because she "just couldn't do the work," the Magistrate Judge was justified in finding substantial evidence in the record to support the ALJ's decision. The Court concludes, as did the Magistrate Judge, that because the ALJ based his decision that Plaintiff could return to her clerical job at Step 4 of the sequential evaluation on Plaintiffs description of the demands of her past relevant work, the ALJ was not required to consult a VE. The Court OVERRULES Plaintiffs first Objection..
Plaintiff also objects to the Magistrate Judge's refusal to defer to Plaintiffs Treating Physician, Dr. Ramon Souffront, M.D. See Pl.'s Br. at 3. Specifically, Plaintiff objects to the Magistrate Judge's conclusion that Dr. Souffront did not report any restrictions in the Plaintiffs working capacity or indicate that she was disabled from working at the time. Id. Plaintiff claims that because the Social Security Questionnaire submitted to Dr. Souffront does not ask whether Plaintiff has any restrictions or is disabled, the Magistrate Judge should not expect there to be an answer to such a question. Id. The Court finds this argument unpersuasive.
Dr. Souffront indicated that Plaintiff suffers from limitation of motion in the neck, as well as in the lumbar region, with difficulty in walking due to pain in the neck and lower back. As the Magistrate Judge notes, however, "there are no contemporaneous medical records showing a basis for [P]laintiffs diagnosis, the method of treatment, or the severity [of] her impairment, despite the fact that Dr. Souffront had treated her on and off since July, 1995." See MJRR at 13. Absent such objective notes or reports, the ALJ would not be required to defer to Dr. Souffront's conclusion as to Plaintiff's capabilities. See Lashley v. Sec'y Health Human Servs., 708 F.2d 1048, 1052 (6th Cir. 1983); Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). The Court OVERRULES this Objection.
Likewise, the Court OVERRULES Plaintiffs Objection regarding the Magistrate Judge's conclusion that Dr. Souffront's January 2001 report was of minimal value. The Court agrees with the Magistrate Judge. First, the report was approximately a year and a half after the date last insured expired. Second, although the record contains x-rays in 1995 and 1997 on her back and neck, the ultimate determination of disability is, in fact, the prerogative of the Commissioner, not the treating physician. See MJRR at 13 (citing 20 C.F.R. § 404.1527 (e)(1); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993)). The Court may not substitute its judgment for that of the Commissioner. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
Plaintiffs final Objection relates to the Magistrate Judge's recommended affirmation of the ALJ's conclusion that the Plaintiffs hearing impairment was not severe. However, there is substantial evidence in the record to support the ALJ's finding that Plaintiffs hearing problem was not severe. As the Magistrate Judge noted, "[a]n impairment or combination of impairments is not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities, which includes the capacity for hearing." See MJRR at 14 (citing 20 C.F.R. §§ 404.1521(a), (b)).
Here, the record does not show that Plaintiffs hearing impairment significantly limited her ability to hear prior to September 30, 1998. Plaintiff reported on July 29, 1997 that she had lost two jobs because of her ability to hear. This precipitated an appointment with Dr. Salvatore Cavaliere, D.O., at the Michigan Ear, Head Neck Clinic, who recommended hearing aids. Thereafter, Plaintiff was scheduled for a hearing aid evaluation. The record reveals a report by Dr. Souffront wherein he stated that, based on a September 30, 1997 examination, Plaintiff's hearing was normal with hearing aids, her ability to understand conversational speech was okay, and her speech was normal. Thus, while Plaintiff undoubtedly suffered from decreased hearing during the relevant period, substantial evidence in the record supports the ALJ's conclusion that her hearing impairment was not sever as it did not limit her ability to do basic work activities as defined in the regulations prior to September 30, 1998. The Court OVERRULES Plaintiffs final Objection.
IV. CONCLUSION
As stated above, this Court must affirm the Commissioner's decision if it is supported by substantial evidence. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). As substantial evidence is present in the record to support the Commissioner's decision, this Court: ADOPTS the Magistrate Judge's Report and Recommendation; DENIES Plaintiffs Motion for Summary Judgment; and GRANTS Defendant's Motion for Summary Judgment.
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge Virginia Morgan dated June 4, 2002 is ACCEPTED and ADOPTED.
IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment (Docket No. 9 filed November 20, 2001) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Docket No. 13 filed December 3, 2001) is GRANTED.