Opinion
Case No.: 00-CV-71496-DT
March 21, 2001
JUDGMENT
On March 27, 2000, Plaintiff Patricia A. Marks filed the present action seeking review of a final decision of the Social Security Administration ("SSA") denying her application for disability benefits. The parties filed cross-motions for summary judgment, which were referred to Magistrate Judge Wallace Capel, Jr., for report and recommendation. On February 16, 2001, Magistrate Judge Capel issued a Report and Recommendation ("RR") recommending that Plaintiff's motion for summary judgment be denied, and Defendant's motion be granted. On March 13, 2001, Plaintiff filed untimely objections to the RR. For the reasons stated in the RR, and for the reasons stated in an Opinion issued this date,
IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff's motion for summary judgment is DENIED, and
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant's motion for summary judgment is GRANTED and the complaint is hereby DISMISSED.
OPINION
On March 27, 2000, Plaintiff Patricia A. Marks filed the present action seeking review of a final decision of the Social Security Administration ("SSA") denying her application for disability benefits. Plaintiff filed for disability benefits on October 29, 1997, alleging that she had been unable to work since January 1, 1993, due to her weight and breathing problems. The SSA denied Plaintiff s application for disability benefits, after which Plaintiff requested a de nova hearing before an administrative law judge ("ALJ"), which was held on April 21, 1999.
On June 22, 1999, the ALJ issued a decision denying Plaintiff's request for benefits. On March 9, 2000, the Appeals Council denied Plaintiff's request for review of the ALJ's determination. Thereafter, Plaintiff filed the instant suit pursuant to 42 U.S.C. § 405 (g).
The parties filed cross-motions for summary judgment, which were referred to Magistrate Judge Wallace Capel, Jr., for report and recommendation. On February 16, 2001, Magistrate Judge Capel issued a Report and Recommendation ("RR") recommending that Plaintiff's motion for summary judgment be denied, and Defendant's motion be granted.
On March 13, 2001, Plaintiff filed objections to the RR. However, as the RR clearly states, the parties had ten days within which to file written objections to the RR. Under the Federal Rules of Civil Procedure and the Local Rules for the Eastern District of Michigan, this ten-day period ended on March 8, 2001. See FED. R. Civ. P. 6(a) (when prescribed time period is less than eleven days, intermediate Saturdays and Sundays are not counted); FED. R. Civ. P. 6(e) (three days added to prescribed period when service made by mail); E.D. MICH. L.R. 6.1 (same). Accordingly, Plaintiff's objections, filed March 13, 2001, were untimely and must therefore be rejected.
The RR specifically stated:
Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636 (b)(]), the parties are hereby notified that within ten days after being served with a copy of the recommendation they may serve and file specific, written objections within ten days after being served with a copy thereof. The parties are further informed that failure to file objections may constitute a waiver of any further right of appeal to the United States Court of Appeals.
RR at 21-22 (citation omitted). The proof of service accompanying the RR indicates that service was made upon the parties by mail on February 16, 2001.
In any event, the Court is satisfied that Plaintiff's objections are without merit. Therefore, even if Plaintiff's objections had been timely filed, such objections would not mandate a different a result in this case.
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.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 this 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 March 31, 1993, 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 16). 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 January 1, 1993 (Tr. at 16, 22); (2) that Plaintiff suffered from obesity and restrictive ventilatory disease, which the ALJ deemed "severe" (Id. at 18, 22); (3) that Plaintiff did not have a listed impairment because, although she was well above the listed weight requirement for obesity as of her last insured date, her FVC values were not at or below those required by the listing (Id. at 19, 22); and (4) that Plaintiff could not perform her past relevant work (Id. at 20, 22). In reaching these conclusions, the ALJ focused on medical evidence from Plaintiff's onset date (January 1, 1993) through her last insured date (March 31, 1993), or shortly thereafter. (Tr. at 17). According to the ALJ, any medical evidence for periods significantly thereafter was irrelevant. (Id.).
Based upon the testimony and evidence, the ALJ determined that as of March 31, 1993, Plaintiff had the following residual functional capacity:
[L]ight work, or work which requires maximum lifting of twenty pounds and frequent lifting often pounds; some light jobs are performed while standing, and those performed in the seated position often require the worker to operate hand or leg controls (20 C.F.R. § 404. 1567). The evidence supports a finding that she was not able to work at unprotected heights or around unprotected moving machinery and that she should not have done overhead pushing/pulling or worked with air or vibrating tools. She required the option to sit and stand as needed and should not have performed repetitive bending, twisting or turning nor have crawling, squatting, kneeling, or climbing. Finally, the claimant needed a controlled air environment without temperature or humidity extremes.
(Tr. at 20). Given these limitations, the vocational expert testified that Plaintiff would be capable of making a vocational adjustment to work "at a minimum of 15,000 cashier positions; at least 8,500 press operators; 4,500 or more manufacturing jobs (inspector, machine operator, sorter, hand packager and collator); 1,200 information clerk jobs; and 1,500 security monitor positions," as well as "15,000 sedentary jobs" consistent with Plaintiff's limitations. (Tr. at 21, 22). Accordingly, the ALJ determined that Plaintiff was not disabled as of her last insured date of March 31, 1993.
Under 42 U.S.C. § 405 (g), this Court has the power to enter a judgment affirming, modifying, or reversing a decision of the SSA. 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.'" Id. at 922-23 (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).
Plaintiff states that her "major objection" is that both Magistrate Judge Capel and the ALJ failed to recognize the disabling effect of her morbid obesity, fatigue, and shortness of breath. (Pl.'s Obj. at 2). "In determining whether the claimant has the residual functional capacity to perform any other substantial gainful activity, the ALJ may rely on the testimony of a vocational expert in response to hypothetical questions." Wesley v. Commissioner of Soc. Sec., No. 99-1226, 2000 WL 191664 at *4 (6th Cir. Feb. 11, 2000) (citing Varley v. Secretary of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)). The vocational expert's testimony, however, must be based on a hypothetical that accurately portrays the plaintiff's physical and mental impairments. See Davis v. Secretary of Health Human Servs., 915 F.2d 186, 189 (6th Cir. 1990); Varley, 820 F.2d at 779. A hypothetical question is not erroneous if at least one doctor substantiates the information presented. See Hardaway v. Secretary of Health Human Servs., 823 F.2d 922, 927-28 (6th Cir. 1987).
This Court reviews de nova those portions of the RR that Plaintiff finds objectionable. See 28 U.S.C. § 636 (b)(1)(C); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
When asked to assume that Plaintiff's testimony and that of her husband were fully credible, the vocational expert testified that she did not believe Plaintiff would be able to perform any of the jobs she had previously identified. (Tr. at 228). The ALJ, however, ultimately concluded that Plaintiff's testimony was not entirely credible, and that the record did not support the restrictions advanced by Plaintiff, i.e., the ability to lie down and nap for hours during the day, and that no treating or examining physician had prescribed or suggested such restriction. (Tr. at 19).
Plaintiff asserts that her fatigue was prominently mentioned in a number of her treating physician's office notes "both immediately before and within several months after those dates," and that such fatigue was "clearly a part of her overall continuing condition." (Obj. at 2). Office notes from June 30, 1992, do indicate that Plaintiff presented with, inter alia, fatigue and weakness. (Tr. at 124). The same notes diagnosed "flu syndrome" and hypertension, with no notation regarding suggested treatment including naps. (Id.). The medical documentation also reveals that Plaintiff was treated for pneumonia in the later part of 1992. (Id. at 126-30). Moreover, office notes from March 30, 1993 do not contain any reference to fatigue. (Id. at 142). Instead, the March 1993 office notes indicate that Plaintiff felt "a lot better" since being placed on Prozac and Daypro. (Id.).
Similarly, office notes from July of 1993 do not indicate any complaints of fatigue. (Id. at 131). Office notes from August 4, 1993, state that Plaintiff presented with "basically fatigue," that Plaintiff could not be specific, and that there was "[n]othing at all other than aches and pains 'here and there.'" (Id. at 142). The same notes state that "[e]verything seem[ed] normal" and made no suggestion regarding naps.
Although office notes of August 27, 1993, do indicate that Plaintiff complained of fatigue, the same office notes indicate that Plaintiff had been removed from her depression medication. (Id. at 141). The treating physician recommended "weight loss, moderate exercise." Furthermore, office notes from March 22, 1994, make no reference to fatigue, but instead indicate that Plaintiff's depression was controlled with Zoloft. (Id. at 141).
An ALJ may properly consider the credibility of the claimant. See Walters v. Commissioner of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Moreover, "an ALJ's findings based on the credibility, of the claimant are to be accorded great weight and deference, particularly since the ALJ is charged with the duty of observing a witness's demeanor and credibility." Id. Nevertheless, the ALJ's assessment must be supported by substantial evidence. See id. The Court is satisfied that substantial evidence exists in the record to support the ALJ's determination that Plaintiff's complaints of fatigue were not entirely credible. All of the medical evidence surrounding Plaintiff's last insured date indicates that Plaintiff's fatigue was more a result of other medical conditions, such as the flu and pneumonia, and of her depression, than her obesity. The same evidence suggests that such depression, and corresponding fatigue, were controllable through proper medication, diet, and exercise.
The fact that Plaintiff attempted part-time work in 1995-96, and that her treating psychological counselor thought that Plaintiff was unable to perform such part-time work due to her weight, shortness of breath, and fatigue, is unpersuasive. (Obj. at 4). Plaintiff herself admits that her condition had worsened from 1993 to 1995. (Id.).
The Court is similarly not persuaded that Social Security Ruling 00-3p regarding "Evaluation of Obesity" dictates a different result. (Obj. at 3). SSR 00-3p provides that when evaluating obesity in assessing residual functional capacity in adults:
An assessment should also be made of the effect obesity has upon the individual's ability to perform routine movement and necessary physical activity within the work environment. Individuals with obesity may have problems with the ability to sustain a function overtime. As explained in SSR 96-8p ("Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims"), our RFC assessments must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. In cases involving obesity, fatigue may affect the individual's physical and mental ability to sustain work activity. This may be particularly true in cases involving sleep apnea.
(emphasis added).
The ALJ specifically took Plaintiff's inability to perform routine movement and other physical activities into consideration in formulating his hypothetical. For example, the ALJ determined that Plaintiff required a sit/stand option as needed, that she could not perform repetitive bending, twisting, or turning, nor crawling, squatting, kneeling, or climbing. (Tr. at 20). The ALJ also determined that Plaintiff could only lift a maximum of twenty pounds, with frequent lifting of only ten pounds. (Id.). The ALJ, however, determined that the objective record evidence did not support a finding, as of the date of Plaintiff's last insured, that fatigue due to obesity limited Plaintiff's physical and mental ability to sustain work activity.
SSR 00-3p states that fatigue due to obesity may affect a claimant's ability to sustain work activity. SSR 00-3p does not state that fatigue due to obesity necessarily affects a claimant's ability to sustain work activity in every ease. The Court is satisfied that the ALJ's credibility assessment regarding Plaintiff's alleged fatigue as of the date of last insured was supported by substantial evidence. Accordingly, Plaintiff's objection is rejected.
Conclusion
For the reasons stated above and in the RR, Plaintiff's motion for summary judgment shall be denied, and Defendant's motion for summary judgment shall be granted.