Opinion
Case No. 00-74083
June 29, 2001
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Magistrate Judge Marc L. Goldman's Report and Recommendation dated June 4, 2001. Plaintiff timely filed Objections to the Report and Recommendation.
Judicial review of the Commissioner's decision is limited in scope to determining whether the findings of fact made by the Commissioner are supported by substantial evidence, and deciding 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 administrative law judge ("ALJ") must not be discarded lightly and should be accorded great deference. Hardaway v. Secretary of Health and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court's review of an ALJ's decision is not a de novo review. The district court may not resolve conflicts in the evidence nor decide questions of credibility.Garner, 745 F.2d at 397. The decision of the Commissioner must be upheld if supported by substantial evidence, even if the record might support a contrary decision. Smith v. Secretary of HHS, 893 F.2d 106, 108 (6th Cir. 1989). 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) (quotingBaker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
The Court has had an opportunity to review this matter, and finds that the Magistrate Judge reached the correct conclusion for the proper reasons, except with respect to the remand recommendation.
The Court agrees with the Magistrate Judge that the record supports the ALJ's conclusion that Plaintiff has the residual functional capacity to perform a restricted range of light work that does not involve lifting over ten pounds or using her left arm for overhead work. (Tr. 19). The Court also agrees with the Magistrate Judge's finding that the Commissioner failed to demonstrate that such positions are actually available, based on the Vocational Expert's ("VE") testimony. (Report and Recommendation, dated June 4, 2001, p. 15). The Court, however, finds that remand of this case is not authorized, and instead awards benefits to Plaintiff.
In determining whether a claimant is disabled within the meaning of the Act, an ALJ employs a five-step inquiry as set out in 20 C.F.R. § 404.1520. If the ALJ makes a dispositive finding at any step, review stops at that point. 20 C.F.R. § 404.1520 (a). Through step four the claimant bears the burden of proving the existence and severity of any functional limitations caused by their disability. Claimant also bears the burden of proving that his/her impairments preclude him/her from performing his/her past relevant work. Bowen Yuckert, 482 U.S. 137, 146 n. 5 (1987). At step five of the process, the burden shifts to the agency to show that a significant number of jobs in economy exist that accommodate the claimant's vocational profile and residual functional capacity, as determined in step four. Yuckert, 482 U.S. at 146 n. 5. The ALJ found the following with regard to steps one through four: that the medical evidence establishes that the claimant has severe limitations in the use of her upper left extremity, complaints of low back pain and substance abuse in partial remission, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4; that the objective medical evidence does not support the claimant's allegations regarding functional limitations which would preclude the performance of all work activity and her testimony as to her limitations was not credible; that the claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for lifting more than 10 pounds ( 20 C.F.R. § 404.1545); that the claimant is unable to perform her past relevant work as an assembler, and that the claimant's residual functional capacity for the full range of light work is reduced by a limitation of lifting up to 10 pounds or less and in use of the left upper extremity in overhead work. (Tr. 19). The ALJ's findings with regard to the first four steps of the inquiry are supported by the record.
It is noted that the record contains conflicting evidence regarding Plaintiff's ability to work and her level of disability. On at least seven occasions between the onset date of Plaintiff's disability, May 29, 1997, and August 5, 1998, Plaintiff's treating physician reported that Plaintiff could not return to work, due to her on-going back and shoulder pain and physical limitations. (Tr. 152-153, 163-165, 185-188, 190). At the same time, on at least four separate occasions between August 19, 1997 and January 9, 1999, an Independent Medical Evaluation found that Plaintiff was capable of returning to restricted work. (Tr. 129-130, 139, 150, 199).
In evaluating the evidence on the record, in such circumstances, a treating physician's opinion is given controlling weight when it is supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence. 20 C.F.R. § 404.1527 (d)(2). If the findings of Plaintiff's treating physician are supported by objective medical evidence, then Plaintiff must be found to be fully disabled. In the present case, however, the ALJ found that the objective medical evidence on the record did not support Plaintiff's claim of total disability. (Tr. 19).
On June 9, 1997, less than two weeks after Plaintiff alleges she became totally disabled, and again on January 25, 1999, Plaintiff underwent an MRI of her spine. In both instances the results were negative for any irregularity or injury. (Tr. 189, 203). An EMG of Plaintiff's back, performed on January 9, 1999, also came back negative, as did a bone scan of Plaintiff's spine performed on February 18, 1999. (Tr. 129-130, 204). During the same period, and indeed from the alleged onset date of Plaintiff's total disability right up to the date of the hearing before the ALJ, the record contains no evidence that any objective diagnostic test performed on Plaintiff came back positive for either an injury or for an abnormality of any kind. Rather, the only objective medical evidence on the record to support Plaintiff's claim of total disability, aside from one slightly irregular CT scan performed six months prior to the alleged onset date of Plaintiff's disability, is the reported findings of Plaintiff's treating physician. (Tr. 121).
The ALJ's finding that Plaintiff's allegations of pain and functional limitations sufficient to preclude all work was not credible is supported by substantial evidence on the record. The Court agrees with the Magistrate Judge's conclusion that the ALJ correctly found that Plaintiff has the residual functional capacity to perform a restricted range of light work that does not involve lifting over ten pounds or using her left arm for overhead work.
As to the fifth step of the inquiry to determine disability, however, the Magistrate Judge found that, contrary to the ALJ's conclusion, the VE's testimony failed to demonstrate that a significant number of positions that Plaintiff can perform are actually available. (R. and R., p. 15). At the hearing held May 6, 1999, the VE, responding to a number of hypotheticals posed by the ALJ, stated that approximately 6,000 unskilled jobs existed in Michigan in the light work category that would involve lifting weights only lighter than ten pounds. (Tr. 243-244). On the basis of this testimony, the ALJ found that at least 2,500 jobs existed in the Detroit Metropolitan area that would accommodate Plaintiff's restrictions. (Tr. 20). The Magistrate Judge, however, noted that the ALJ had never included the Plaintiff's overhead work restrictions in any of the hypotheticals he posed to the VE. Accordingly, the Magistrate Judge found that the job figures stated by the ALJ were incorrect and that, therefore, the Commissioner had failed to meet his burden of establishing that a significant number of jobs exist that Plaintiff can perform. (R. and R., p. 15).
After a careful review, the Court finds that there is nothing in the record to contradict this finding. The Court agrees with the Magistrate Judge's finding that the Commissioner has failed to meet his burden of establishing that a significant number of jobs exist in the Detroit Metropolitan area that Plaintiff can perform.
Having determined that the Commissioner had failed to establish that jobs existed that would accommodate Plaintiff's restrictions, the Magistrate Judge recommended remand of the case for further development of the VE's testimony. (R. and R., p. 16). The Court finds that remand of this case is not appropriate, and instead awards benefits to Plaintiff.
The Supreme Court only recognizes two kinds of remands involving social security cases: those pursuant to sentence four, and those pursuant to sentence six of 42 U.S.C. § 405 (g). Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991); Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The Supreme Court concluded that Congress' explicit delineation in § 405(g) regarding circumstances under which remands are authorized clearly showed that Congress intended to limit the district court's authority to enter remand orders in these two types of cases.Melkonyan, 501 U.S. at 100. Sentence four allows a district court to remand in conjunction with a judgment affirming, modifying or reversing the Commissioner's decision. Id., at 99-100. Sentence six allows the district court to remand in light of additional evidence without making any substantive ruling as to the merits of the Commissioner's decision, but only if a claimant can show good cause for failing to present the evidence earlier Id., at 100. The Sixth Circuit has long recognized that a court may only remand disability benefits cases when a claimant establishes that new material evidence is available and shows good cause for failure to incorporate such evidence into prior proceedings. Willis v. Secretary of Health and Human Services, 727 F.2d 551 (6th Cir. 1984). Remand, in the present case, is not authorized under the statute.
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge Goldman dated June 4, 2001 is ACCEPTED and ADOPTED as this Court's findings and conclusions of law, EXCEPT for the remand recommendation.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment ( Docket No. 11, filed January 10, 2001) is GRANTED.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment ( Docket No. 14, filed March 5, 2001) is DENIED.
IT IS FURTHER ORDERED that the Commissioner award benefits to Plaintiff.