Opinion
Case No. 01-CV-73883-01
July 30, 2002
REPORT AND RECOMMENDATION
Plaintiff Tammy Haeske has brought this action under 42 U.S.C § 405(g) to challenge a final decision of defendant Commissioner denying her application for Social Security disability benefits under Title II of the Social Security Act. Both parties have filed summary judgment motions which have been referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Because the record demonstrates substantial evidence to support the Commissioner's decision, summary judgment for the Defendant is RECOMMENDED.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
Plaintiff applied for Social Security disability benefits on April 26, 2000, alleging a disability onset date of August 13, 1993. Plaintiff asserted back and knee pain, headaches, chronic bronchitis, sinusitis, gamma G immunoglobin deficiency, and nauseous side-effects from prescription medication as her impairments. Plaintiff's claim was denied initially. Plaintiff requested and received a bearing, conducted on February 6, 2001. Administrative Law Judge Richard Nelson issued a decision on March 27, 2001, finding Plaintiff not disabled because she could perform jobs existing in significant numbers in the national economy. The Appeals Commission denied review, leaving the ALJ's decision as the final decision of the Commissioner. Plaintiff seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).
Plaintiff's case was part of an Agency pilot program that tested the elimination of the reconsideration level between initial rejection and bearing. Thus, following initial rejection, Plaintiff was permitted to request a bearing before an administrative law judge.
B. Plaintiff's Background
Plaintiff was born on March 16, 1963, and was thirty-eight years old when the ALJ denied her claim. She graduated high school, and had worked in the past as a house cleaner, secretary, and restaurant assistant manager. Hearing Transcript at 14. Plaintiff was involved in a motor vehicle accident on August 18, 1998, and had not held gainful employment since that date. Id. at 15. Plaintiff's last date of insured status was December 31, 1999. Id. at 77-78.
On May, 10, 2000, Plaintiff completed a daily activities log pursuant to her claim for disability benefits. Id. at 94-100. Along with her claim of being unable to work, Plaintiff noted her inability to properly care for her home, limited ability to cook or shop for groceries, or play with her son as results of her physical condition. Id. at 94-95, 100. Plaintiff noted that she watched three to four hours of talk shows on television, and read for about thirty minutes per day. Id. at 96.
At the administrative hearing on February 6, 2001, Plaintiff testified that she was unable to work due to chronic headaches, sinus infections, back and knee pain. Id. at 35. She stated that she took various prescription medications, including Fioricet for her headaches, which caused her to be drowsy. Id. at 38-39. Plaintiff now said that she watched one hour of television per day and that no doctor gave her an exercise program to follow. Id. at 33-34. Plaintiff claimed that she could stand for ten to fifteen minutes, walk for fifteen minutes, sit for fifteen to twenty minutes, and lift ten to twelve pounds. Id. at 35-36.
C. Medical Evidence
On August 30, 1998, Plaintiff sought treatment at a neurology clinic, and was treated by Dr. Raganathan, M.D. Id. at 168-170. Plaintiff complained of headaches, and examination revealed some lower back pain. Id. Dr. Raganathan noted that a CAT scan was not done in the emergency room after Plaintiff's motor vehicle accident, and he ordered a computed topography (CT) of Plaintiff's brain. Id. at 170. He also reported that Plaintiff smoked one and one-half packs of cigarettes per day. Id. at 169. The CT scan was done on September 18, 1993, and was essentially negative, although it did show evidence of right frontal sinus opacification with mucosal thickening also in the left frontal sinus. Id. at 166. On a follow up visit on September 29, 1998. Dr. Raganathan prescribed a seven day course of an anti-infective medication, Septra, in an effort to relieve Plaintiff's headaches. Id. at 167.
On October 20, 1998, Plaintiff commenced treatment with Dr. Schreck, due to complaints of bilateral knee pain. Id. at 150. Dr. Schreck noted that Plaintiff walked with a slow, cautious gait and was somewhat antalgic, favoring her left side more than the right. Id. Dr. Schreck ordered a magnetic resonance imaging study (MRI) to assess for any significant inner-knee damage. Id. The MRI was interpreted by a radiologist as normal, but Dr. Schreck concluded that the MRI suggested a partial tear of Plaintiff's anterior cruciate ligament, which he suspected was an old injury. Id. at 149, 151. Dr. Schreck referred Plaintiff to a program of physical therapy. Id. at 151. On November 10, 1998, Plaintiff again visited Dr. Schreck, and revealed that she had been performing physical therapy for her back and neck, but nor her knee. Id. at 149. Dr. Schreck instructed Plaintiff to undergo physical therapy for her knee. Id. on January 12, 1999, Plaintiff reported no significant improvement with physical therapy, and Dr. Schreck discussed arthroscopic diagnostic surgery with her. Plaintiff desired to pursue this option, but was apparently stymied by her insurance carrier. Id. at 147-148.
On January 6, 1999, Plaintiff commenced treatment with Dr. Femmenineo, complaining of neck, back and knee pain. Id. at 139. Upon examination, Dr. Femmenineo found evidence most suggestive of chronic cervical and lumbosacral strain, and evidence of a possible medial meniscus injury bilaterally, and possible mild traumatic brain injury. Id. at 139-140. Dr. Femmenineo suggested discontinuing the current course of physical therapy, and recommended a health club membership including an aggressive exercise program and exercise in water. Id. Dr. Femmenineo also prescribed a nonsteroidal anti-inflammatory medication, and requested x-rays of Plaintiff's lumbosacral spine which revealed a bony density in the corner of the anterior and superior aspect of the third and fourth lumbar vertebrae, most likely a developmental anomaly. Id. at 142, 137. Dr. Femmenineo was to reexamine the Plaintiff in three weeks time, and instructed Plaintiff to stay off work until then. Id. at 140. On January 27, 1999, Plaintiff met again with Dr. Femmenineo, and reported no significant improvement over the last three weeks. Plaintiff had not taken the anti-inflammatory because of a history of gastritis. Id. at 137. Dr. Femmenineo again recommended an exercise program in water, and prescribed a cox-II inhibitor, Celebrex, which was unlikely to affect Plaintiff's stomach. Id. Dr. Femmenineo also requested a total body bone image, and was to reevaluate Plaintiff in four weeks time, instructing Plaintiff to remain off work until then. Id. at 138. On February 8, 1999, Plaintiff had a total body x-ray at St. John Hospital. Id. at 136. On February 22, 1999, Plaintiff met with Dr. Femmenineo, and reported same improvement with the ten-day course of Celebrex. Id. at 135. Dr. Femmenineo again encouraged Plaintiff to exercise in water, and determined that while work as a housekeeper would be inappropriate, Plaintiff could work at a sedentary job. Id. On March 22, 1999, Plaintiff again met with Dr. Femmenineo, noting no improvement. Dr. Femmenineo decided to write a prescription for aquatic therapy, and continued to keep Plaintiff off of work as a housekeeper. Id. at 133. On April 23, 1999, Plaintiff met with Dr. Femmenineo, and reported no improvement. Id. at 131. Due to insurance difficulties, Plaintiff was unable to go to aquatic therapy. Id. Dr. Femmenineo encouraged her to at least walk in water, perhaps during open swim at the local high school. Id.
On August 23, 1999, Plaintiff commenced treatment with Dr. Stephens of Wood Orthopeadic Associates, complaining of knee pain. Id. at 147. Plaintiff reported that due to insurance problems, Dr. Schreck had not performed surgery earlier in the year. Id. Dr. Stephens recommended arthroscopic surgery, performed on September 7, 1999 at Bon Secours Cottage Health Services. Id. at 146. On September 16, 1999, Plaintiff met with Dr. Stephens to go over the arthroscopy results. Id. at 145. There was evidence of an old partial tear of the ACL, some chondromalacia (softening of the cartilage) of the platella and mediolateral compartments, but no major arthritic change. Id. Dr. Stephens recommended a physical therapy program to rehabilitate the ACL. Id. On October 7, 1999, Plaintiff again visited Dr. Stephens, reporting low back pain. Id. at 144. Plaintiff had not yet begun physical therapy for her knee. Id. Dr. Stephens examination revealed nothing out of the ordinary, other than Plaintiff's complaints of pain in the lumbosacral junction. Id. Dr. Stephens recommended physical therapy for Plaintiff's back as well as her knee. Id.
On November 12, 1999, Plaintiff commenced treatment whit Dr. Riley, D.O. complaining of two years of sinus trouble, and chronic headaches. Id. at 175. Dr. Riley scheduled sinus surgery for November 17, 1999. Id. On December 7, 1999, Plaintiff again visited Dr. Riley, and reported that her sinuses her better following the surgery. Id. at 176. Plaintiff continued complain of headaches, and stated that she wanted to quit smoking. Id. From January 7, 2000, to December 15, 2000, Plaintiff visited Dr. Riley fifteen times. Id. at 177-192. Plaintiff's complaints ranged from dry skin on her eyelid to poor eating habits, Id. at 177, 180. Plaintiff continually complained of dry cough, and sinus drainage problems. Id. at 177-192. Dr. Riley documented Plaintiff's complaints, and renewed her prescriptions. Id. In February and March of 2000, Dr. Riley referred Piaintiff to an orthopedic surgeon due to her complaints of knee and back pain. Id. 181-182.
On February 5, 2000, Plaintiff went to the St. John Hospital emergency room, complaining of a severe sore throat. Id. at 129. Plaintiff was diagnosed with Pharyngitis and released from care. Id. at 128-129.
On March 13, 2000, Plaintiff commenced treatment with Dr. Pokriefka of Metro Infection Specialists, complaining of frequent sinus infections. Id. at 196. Dr. Pokriefka noted that Plaintiff had multiple sinus problems, frequent upper respitory tract infections and skin infections. Id. He diagnosed Plaintiff had a gamma G immunoglobin deficiency, and prescribed IgG replacement therapy. Id. at 197. Thereafter, Plaintiff underwent IgG replacement therapy monthly from May, 2000, to October, 2000. Id. at 210-216. On July 31, 2000, Plaintiff reported that she had not had an infection in two months. Id. at 217.
On November 1, 2000, Plaintiff returned to Neurological Rehabilitation Associates and was seen by Dr. Elechi. Id. at 163-165. He noted the earlier visits to his colleague Dr. Raganathan, and that Plaintiff currently had prescriptions for Claritin, Levaquin, Albuteral inhaler, Fioricet and Prednisone. Id. Plaintiff reported smoking about one and one-half packs of cigarettes per day. Id. at 164. Upon examination, Dr. Elechi found no cough or difficulty breathing, and that Plaintiff's gait and other systems appeared normal. Id. at 163-164. There was no evidence of neurological damage. Id. Dr. Elechi prescribed Elavil, an anti-depressant with sedative effects, prescribed for treatment of symptoms of depression. Id.; Physician's Desk Reference, 2001, pg. 626.
Dr. Schreck completed a medical examination report related to Plaintiff's claim for disability benefits. Id. at 221-222. Dr. Schreck concluded that Plaintiff was limited to work involving lifting and carrying five pounds occasionally, standing up to one hour per eight hour work day, walking for one to two hours per eight hour work day, and sitting for up to thirty minutes at a time, and no operation of foot controls. Id. at 222. Dr. Schreck concluded that Plaintiff had no mental limitations, and could perform grasping, reaching, pushing, pulling and fine manipulation with both upper limbs. Id.
At the hearing on January 7, 2002, Dr. Steiner testified as a medical expert. Dr. Steiner reviewed the medical evidence and concluded that Plaintiff had the ability to perform sedentary work involving no operation of foot pedals, the primary reason for the limitation being Plaintiff's ongoing knee problems. Id. at 43.
D. Vocational Evidence
At the hearing, testimony was given by Ms. Pauline Pegrem, M.A., a Vocational Expert (VE). The ALJ posed the following hypothetical to the VE:
"Please assume a thirty-seven year old person with a high school education and work experience as a house cleaner, a secretary, assistant manager in a restaurant, who is impaired by chronic headaches, sinusitis, bronchitis, lower-back pain, neck, knee pain from a motor vehicle accident. She takes medications and as a result, she should not be able, be required to lift or carry more than ten pounds, stand or walk two hours in an eight hour day and sit six. Her weight should be limited accordingly in the push and pull. Should not be required to work [in] work requiring foot pedals, and because of the medications, the position should not be more than simple, unskilled work. Considering these limitations, state your opinion as whether or not there's work for such a person that exists in our economy."Id. at 48. The VE responded that work in unskilled, sedentary occupations would be available to such a person. Such work is generally clustered in the industrial manufacturing area, and consists of simple sorting, packaging inspection, and assembly performed at a bench or table. The VE testified that there are 25,000 such jobs in Michigan, about one half of which are in the southeast Michigan area. The VE testified that another area of employment that such a person could participate in is entry level service jobs, such as information clerk, lobby attendant, telephone marketing clerk, and some unskilled cashiers. The VE testified that some 15,000 such jobs exist in Michigan, with one half in the southeast Michigan area.
II. ANALYSTS
A. Standard of Review
In adopting federal court review of' Social Security administrative decisions, Congress limited the scope of review to a determination of whether the Commissioner's decision is supported by substantial evidence, 42 U.S.C. § 405(g); Sherrill v. Secretary of HHS, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence has been defined as "[m]ore than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Furthermore, the Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. Id. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm. Studaway v. Secretary of HHS, 815 F.2d 1074, 1076 (6th Cir. 1987); Kirk it Secretary of HHS, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983).
B. Factual Analysis
Plaintiff challenges the ALJ's finding that she could perform a limited range of sedentary work as unsupported by substantial evidence. Plaintiff submits that the hypothetical question posed by the ALJ to the VE was defective and incomplete, and that the ALJ failed to properly consider the effects of Plaintiff's medication.
The ALJ found that Plaintiff's headaches and the medications to treat tern are severe enough to limit her to simple, unskilled work, but not severe enough to preclude her from all work. Hearing Transcript at 17. There was evidence that Plaintiff has a back, neck and knee condition but not severe enough to preclude her from performing a wide range of sedentary exertional work. Id. at 18. Further, Plaintiff's sinusitis does not prevent her from performing a wide range of sedentary exertional work. Id. Plaintiff's gamma G immunoglobin deficiency does not preclude the claimant from performing a wide range of sedentary exertional work. Id. The ALJ found that Plaintiff retained the following residual functional capacity: not be able to lift more than ten pounds, not be able to engage in any prolonged standing or walking, not be able to use foot pedals, and need to be limited to simple, unskilled work due to the adverse side effects of her medications. Id. at 19.
The ALJ recognized that the Plaintiff had a number of significant functional limitations due to her various impairments. He found that Plaintiff was unable to return to her past relevant work as a housecleaner, secretary, or assistant manager of a restaurant. Id. The burden then shifts to the Social Security administration to show that there are other jobs existing in significant numbers in the national economy that claimant can perform, consistent with her residual functional capacity, age, education, and work experience. Id. Based on the testimony of the VE, the ALJ concluded that considering the Plaintiff's age, educational background, work experience, and residual functional capacity, she is capable of making a successful adjustment to work that exists in significant numbers in the national economy. A finding of "not disabled" was therefore reached within the framework of Medical-Vocational Rule 201.28. Id. at 20.
The objective medical evidence is consistent with the ALJ's finding that Plaintiff could perform simple, sedentary work. Some of Plaintiff's complained maladies were not independently verified through medical examination. The ALJ noted that while Plaintiff complained of constant and severe headaches, the CT scan was essentially negative. Id. The ALJ noted that Plaintiff's neck, back, and knee problems have not prevented her from driving fifty to seventy-five miles per week, to her various doctor appointments and her child's school. Id. at 17. While arthroscopy showed some evidence of an old partial tear of the ACL, straight leg raising exercises throughout the medical record were negative. Id.
The Plaintiff testified that she could walk for about fifteen minutes, stand for ten or fifteen minutes, sit for fifteen to twenty minutes at a time, bend at the waist, had no trouble with her hands or fingers, lift ten to twelve pounds and think clearly. Id. at 37. This level of functional capacity is consistent with the type of work the ALJ concluded the Plaintiff could perform.
The ALJ's finding that Plaintiff retained the functional capacity to work in simple, unskilled, sedentary jobs is supported by substantial evidence in the medical record and hearing testimony offered by the vocational expert.
III. RECOMMENDATION
For the reasons stated above, it is RECOMMENDED that Plaintiff's motion for summary judgement be DENIED, and that Defendant's motion for summary judgment be GRANTED.
Any objections to this Report and Recommendation must be filed within ten (10) days of its service. 28 U.S.C. § 636(b)(1); E.D.Mich. LR 72.1(d)(2). Failure to file objections within the specified time constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Ivey v. Wilson, 832 F.2d 950, 957-58 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.