Opinion
Case Number 01-10007-BC.
July 19, 2004
The plaintiff has brought this case before the Court for the second time seeking review of the denial of a June 30, 1994 application for supplemental security income benefits under Title XVI of the Social Security Act. The present action, filed on January 19, 2001, was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the adverse decision of the Commissioner and remand for an award of benefits. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner.
Magistrate Judge Binder filed a report and recommendation on August 20, 2001 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, and the plaintiff's objections, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff was not disabled. The plaintiff also complains that the magistrate judge failed even to address several issues that she raised in her motion papers, including whether the ALJ properly considered her mental impairment (dysthymia) discussed by Dr. George Pestrue, whether the plaintiff's return to work in July 28, 1999 constituted a trial work period that could not be considered when assessing her functional limitations, whether the ALJ found that the plaintiff's residual functional capacity improved after June 1999 to be able to perform work at the light exertional level solely to avoid application of a section of the Medical Vocational Guidelines (the Grid Rules) that would have directed a finding of disability, whether the ALJ should have used Grid Rule 201.14 to determine whether the plaintiff was disabled even before she reached her fiftieth birthday, and whether the ALJ improperly disregarded the plaintiff's poverty in considering why she did not seek treatment for some of her ailments.
The plaintiff's objection that the magistrate judge neglected to discuss Dr. Pestrue's evaluation fails to account for the magistrate's recounting of that record in his initial report made when this case was first before the Court, and which the magistrate judge incorporated by reference. See RR at 7 (citing tr. at 326-31). Indeed, the magistrate judge thoroughly reviewed Dr. Pestrue's findings at that time. See tr. at 326-27. However, the plaintiff's other observations about the omission of the remaining issues are correct. For reasons not known to the Court, the magistrate judge has failed to address issues briefed by both parties that have an important bearing on the outcome of this action and that should have been addressed in the report pursuant to the general order of reference. Therefore, the Court will address them now.
The plaintiff, who is now fifty-four years old, first applied for disability and supplemental security income benefits on June 30, 1994 when she was forty-four years old. She worked as a certified nurse's aid at an extended care center for twenty-one months and had no other relevant work history at the time of her application. The plaintiff has completed a high school education. The plaintiff alleged she became unable to work on May 12, 1993 due to chronic chest pain. In March 1993, while the plaintiff was working at a care facility, a patient at the facility struck her in the chest. The trauma from this injury is the origin of the plaintiff's chronic pain, although subsequently she has been diagnosed with chronic obstructive pulmonary disease, asthma, costochondritis, a "massive" fibroid cyst on her left rib cage, and osteoarthritis.
The plaintiff's claim was initially denied, and the denial was upheld on reconsideration. The plaintiff appeared before ALJ Robert Stalker on March 20, 1996. ALJ Stalker filed a decision on August 22, 1996 denying benefits because he found that the plaintiff was not disabled within the meaning of the Social Security Act. The plaintiff then filed a timely appeal in this Court, Lamblin v. Comm'r of Soc. Sec., Case Number 97-10396. This Court's predecessor, the Honorable Robert H. Cleland, referred the matter to Magistrate Judge Binder who issued a report and recommendation on April 20, 1998 suggesting that substantial evidence supported the Commissioner's non disability determination and the findings of the Commissioner should be affirmed. In an opinion and order dated September 28, 1998, Judge Cleland rejected the report and remanded the case for further consideration because he found that the hypothetical question posed by ALJ Stalker to the vocational expert failed to properly account for the plaintiff's physical limitations supported by the medical evidence in the record, namely the inability to bend, twist and climb stairs. Judge Cleland also found that the ALJ failed to consider the plaintiff's allegations of mental and emotional impairments.
On remand, the case was assigned again to ALJ Stalker who conducted a hearing on March 24, 2000 at which the plaintiff testified. In a decision dated September 19, 2000, ALJ Stalker again found that the plaintiff was not disabled. A key item of evidence considered by the ALJ was the plaintiff's return to work on July 28, 1999 as a clerk cashier for Forwards Corporation in West Branch, Michigan, a job she held through March 28, 2000 when she was fired for selling liquor to a minor and failing to follow company policy when ascertaining the customer's age. The ALJ reached the conclusion that the plaintiff was not disabled by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 416.920. The ALJ concluded that the plaintiff had not engaged in any substantial gainful activity from the alleged onset date up to July 28, 1999, but thereafter her work at the Forwards Corporation was substantial gainful activity until she was fired at the end of March 2000 (step one); the plaintiff suffered from severe chronic chest wall pain secondary to a traumatic injury, but she did not suffer from the severe impairment of dysthymia (depression) (step two); this impairment did not itself or in combination meet or equal a listing in the regulations (step three); and the plaintiff could not perform her previous work as a nurse's aid, which the ALJ characterized as semi-skilled and requiring heavy exertion, but she could perform her past work as a clerk cashier, which was characterized as unskilled and at the light exertional level (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform a restricted range of sedentary work up until July 1999. Her limitations included lifting no more than ten pounds at a time; and a job allowing a sit-or-stand option, in a clean, nonhazardous, low stress environment with no production line use of her upper extremities. The ALJ found that the plaintiff experienced medical improvement after July 28, 1999 so that she could perform work at the Light exertional level. Relying on the testimony of a vocational expert, the ALJ found that such jobs as information clerk, security monitor, cashier and reception clerk fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies. The ALJ also referred to Grid Rules 201.21 and 201.28 for the period before July 28, 1999, and Grid Rule 202.14 for the period thereafter; using those rules as a framework, the ALJ concluded that the plaintiff was not disabled.
The plaintiff has the burden to prove that she is disabled and therefore entitled to benefits. Boyes v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
Under 42 U.S.C. § 1382c(a)(3)(A) (B), a person is disabled if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" and the impairment is so severe that the person "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity which exists in the national economy." Further, "[a] physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D).
To determine disability, the Commissioner has prescribed the five-step process noted above and set forth in 20 C.F.R. § 416.920. However, if the plaintiff has satisfied her burden through the first four steps of the analytical process, the burden shifts to the Commissioner to establish that the plaintiff possesses the residual functional capacity to perform other substantial gainful activity. Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). See also Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). "To meet this burden, there must be a finding supported by substantial evidence that plaintiff has the vocational qualifications to perform specific jobs." Varley, 820 F.2d at 779 (internal quotes and citations omitted).
Turning first to the period after July 28, 1999, the ALJ found that the plaintiff was not disabled because she was working at gainful activity. She was employed at a light duty job as a clerk cashier for nine months and left that job for reasons other than her physical or mental limitations. The plaintiff argues that her job at Forward Corporation should have been considered a trial work period and therefore not taken into account in determining whether she was disabled. The Court rejects this argument. The Secretary's regulations permit a disabled person to work for a period of time in order to "test [her] ability to work and still be considered disabled." 20 C.F.R. § 416.992(a) Such a trial work period, however, begins when a person is disabled and eligible for benefits under the Social Security Act, see 20 C.F.R. § 416.992(d), which the plaintiff never was in this case. Nor was the plaintiff's post-July 1999 employment an unsuccessful work attempt; Social Security Ruling (SSR) 83-35 defines an unsuccessful work attempt as an effort at work that is involuntarily terminated or reduced below substantial gainful activity within six months because of the claimant's impairment. Here, the plaintiff worked for nine months earning more than an average of $700 per month, which at the time was the earning benchmark for substantial gainful activity, see 20 C.F.R. § 416.974(b)(2), for work involving significant physical or mental duties done for pay or profit whether or not pay or profit is realized. See 20 C.F.R. §§ 416.910, 416.972.
Because the plaintiff's work after July 28, 1999 constituted substantial gainful activity, the ALJ correctly determined at step one that the plaintiff was not disabled. The plaintiff also argues that the ALJ should not have found that the plaintiff could perform light work after that date, and the finding that she could so perform was a device to avoid the operation of Grid Rule 201.14 for sedentary work, which became applicable after the plaintiff reached her fiftieth birthday on July 24, 1999. The ALJ based his conclusion in part on "medical improvement," which is wide of the mark since there is no medical evidence in the record that documents a medical improvement from prior to July 28, 1999, when the ALJ in his pre-remand decision determined that the plaintiff's residual functional capacity was limited to sedentary work. However, the ALJ's post July 28, 1999 RFC determination was only an alternate finding. Moreover, the concept of medical improvement was not material to the ALJ's findings since the original decision from August 22, 1996 was vacated, and medical improvement comes into play only when a binding agency decision that includes a more restrictive RFC is revisited. See Drummond v. Comm'r of Soc. Sec., 126 F.3d 837, 840 (6th Cir. 1997). Similarly, the regulations cited by the plaintiff in support of her argument, 20 C.F.R. §§ 416.994(b)(1), (b) (2, and (b)(4), apply only in the context of a continuing disability review, which is not the case here.
The plaintiff also contends that the ALJ's finding of medical improvement is based on the plaintiff's failure to seek additional medical treatment, which, she says, she cannot afford. There is no merit to this argument because the ALJ did not rely of a failure of the plaintiff to engage in prescribed medical treatment, but merely pointed out that no continuing treatment was sought. He did find that plaintiff's poverty excuse for not seeing a doctor was not well taken due to the availability of free treatment that was obtainable by the plaintiff. Her reliance on McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990), is somewhat misplaced, since that court's statement that a disability remains so even when there is treatment that could cure it only when "the claimant cannot afford the prescribed treatment or medicine, and can find no way to afford it." Id. at 241 (emphasis added).
Finally, the ALJ's alternate decision that the plaintiff could perform light duty work was based on evidence that she actually did perform light duty work. It would be strange indeed to suggest that this determination was not based on substantial evidence.
The ALJ also determined, as he did in his first decision, that the plaintiff could perform a limited range of sedentary work before July 28, 1999. Judge Cleland agreed with the magistrate judge's assessment that the first decision was supported by substantial evidence in this respect, and the plaintiff does not challenge that finding in the September 19, 2000 decision in her present motion papers. The magistrate judge has explained again that substantial evidence supports the decision and the Court adopts that finding, particularly with respect to the determination that the plaintiff's mental impairment was not severe; the Court believes that substantial evidence supports the ALJ's completion of the Psychiatric Review Technique Form (PRTF). Tr. at 309-11.
However, the plaintiff contends that since she was close to "approaching advanced age," i.e. fifty years of age, the ALJ should have applied Grid Rule 201.14 to the period before July 1999 when she was found to have only a capacity for sedentary work, and a finding of disability for that period should have resulted. The Secretary's regulations state that an adjudicator should not apply the age categories in a mechanistic way in borderline situations, meaning within a few months of an age milestone. See 20 C.F.R. § 416.963(a). However, the case before the ALJ did not present a borderline situation since the plaintiff filed her application claiming that she was disabled at age forty-four due to a discrete traumatic incident, and there was no determination that the plaintiff's condition deteriorated over time. To the contrary, her treating physician, Dr. Theodore Bash, noted that her symptoms "waxed and waned," tr. at 132, and the plaintiff eventually returned to the work force, as noted above.
Both the ALJ and the magistrate judge agreed that the medical evidence confirmed that the plaintiff suffered aches and pains and the her impairments made some work difficult. However, substantial evidence supported the ALJ's conclusion that the plaintiff's limitations were not as bad as she described in her testimony and that she could perform some work. The Court's task in reviewing a Social Security disability determination is a limited one. The ALJ's findings are conclusive if they are supported by substantial evidence, according to 42 U.S.C. § 405(g). Consequently, the Court's review is confined to determining whether the correct legal standard was applied, and whether the findings are supported by substantial evidence on the whole record. See Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "`Substantial evidence' means `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Kirk v. Sec. of Health Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). This Court may not base its decision on a single piece of evidence and disregard other pertinent evidence when evaluating whether substantial evidence exists in the record. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Thus, where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec. of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The Sixth Circuit has stated that the role of the Court "is not to resolve conflicting evidence in the record or to examine the credibility of the claimant's testimony." Wright, 321 F.3d at 614. Therefore, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
The magistrate judge suggested that the evidence in the administrative record is adequate to support the Commissioner's conclusion that the plaintiff is not disabled. After a de novo review of the entire record and the materials submitted by the parties, and after consideration of the issues that the magistrate judge failed to discuss, the Court concludes that the magistrate judge properly reviewed the administrative record and applied the correct law in reaching his conclusion that substantial evidence supports the decision of the Commissioner.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation is ADOPTED in part and as supplemented herein.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 11] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #14] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.