Opinion
Case Number 01-10193-BC.
December 29, 2004
The plaintiff filed the present action on May 7, 2001 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. The case 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 decision of the Commissioner and award him benefits. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner's decision. Magistrate Judge Binder filed a report and recommendation on October 19, 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 generally criticize the magistrate judge's superficial review of the medical evidence in the administrative record, but their main thrust is the basic disagreement with the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff is not disabled. The plaintiff repeats in his objections the argument in his motion for summary judgment that the medical evidence submitted by treating physicians, including x-rays, CT scans, and MRI studies, provides a reasonable basis for the plaintiff's complaints of limitations and restrictions that prevent him from performing any work other than sedentary work.
The plaintiff, L.C. Moore, presently sixty years old, applied for a period of disability and disability insurance benefits on October 17, 1998 when he was fifty-four years old. Moore had worked for over twenty-six years as a General Motors iron worker, but he had not worked in any capacity since he retired from his job in 1991. The plaintiff's insured status for disability benefits ceased on December 31, 1996, the last quarter in which he had twenty quarters of contribution into the Social Security system within a forty-quarter period. See 42 U.S.C. §§ 416(i), 423(c)(1)(B)(i); 20 C.F.R. § 404.130(b).
Moore has a history of impairment due to hip, spine, neck, and shoulder pain. In his initial application for benefits, the plaintiff alleged that his disability onset date was August 15, 1995, which was the date that his orthopedic physician concluded that his right hip lacked good function due to avascular necrosis. The plaintiff underwent hip replacement surgery the next month, and eventually improved with time and therapy to the point that his orthopedic surgeon released him to full activities. That occurred in October 1996. However, the plaintiff was involved in an automobile accident on January 1, 1996 and suffered soft-tissue injuries for which he received emergency room treatment and follow-up care. He later amended the disability date to that date. It is these injuries that now cause chronic pain in his shoulders, elbow, and right hip and form the primary basis for his complaint of disability. The plaintiff had been diagnosed with arthritis in the lower lumbar spine and degenerative disc disease with mild disc bulging and herniation. The plaintiff complains of weakness and pain in the neck and right arm, and has difficulty walking. He also receives treatment for hypertension, anxiety, and depression.
In his application for disability insurance benefits, the plaintiff alleged that he was unable to work due to right full hip replacement and high blood pressure. On August 8, 2000, the plaintiff, then fifty-six years old, appeared before ALJ William J. Musseman, who filed a decision on September 20, 2000 in which he found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since the alleged onset of his disability (step one); the plaintiff suffered from substantial impairments consisting of hip, spine, neck and shoulder pain, which were "severe" within the meaning of the Social Security Act; however, the plaintiff's hypertension was controlled and not "severe" (step two); the plaintiff did not have an impairment or combination of impairments that met or equaled a listing in the regulations (step three); and the plaintiff could not perform his previous work because of his impairments (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity for a range of light work limited by the restrictions of lifting twenty pounds or less occasionally and ten pounds frequently; no sitting, standing, or walking for more than six hours out of an eight-hour workday with a an option to sit or stand at will; no work involving tasks above shoulder level; no bending, squatting, kneeling, crawling, and climbing around unprotected heights and moving machinery; and no pushing or pulling tasks. Relying on the testimony of a vocational expert, the ALJ found that there were a significant number of jobs in the national economy suitable for the plaintiff because he could perform a range of light work with limitations, and that jobs such as cashier, sorter, and assembler fit within those limitations. Based on that finding and using the Medical Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on March 22, 2001.
The plaintiff argues that his testimony at the administrative hearing established that he could perform work only at the sedentary level, and that there is medical evidence in the record that documents physical findings consistent with his self-described limitations. For instance, the plaintiff points to the statements of Dr. Frank P. Schinco from February 4, 1997 and Dr. Donald Cady from September 7, 1999 indicating findings of arthritis in the plaintiff's spine and suggesting that cervical disc surgery may be appropriate. Also, Dr. Siva Sankaran, who examined the plaintiff for the state disability determination service, stated that the plaintiff had problems with his cervical and lumbar spine with poor grip strength and possible lower back radiculopathy. This evidence post-dated the plaintiff's insured status, and it was not discussed by the magistrate judge. Of course, to qualify for disability insurance benefits, the plaintiff must not only establish the he is disabled, but also that he was insured within the meaning of the Social Security Act, and became disabled while enjoying insured status. See 42 U.S.C. §§ 416(i), 423(d)(1)(A); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). As previously noted, the plaintiff's insured status ceases after the last quarter in which he had twenty quarters of contribution into the Social Security system within a forty-quarter period. See 20 C.F.R. § 404.130(b). Medical evidence is thus relevant to prove a disability only while the claimant enjoyed insured status. Estep v. Weinberger, 525 F.2d 757, 757-58 (6th Cir. 1975). Medical evidence that postdates the insured status date may be, and ought to be, considered, but only insofar as it bears on the claimant's condition prior to the expiration of insured status. Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976) ("Medical evidence of a subsequent condition of health, reasonably proximate to a preceding time, may be used to establish the existence of the same condition at the preceding time."); Higgs, 880 F.2d at 863.
The plaintiff has the burden to prove that he 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. § 423(d)(1)(A) (B), a person is disabled if he 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. § 423(d)(1)(C).
To determine disability, the Commissioner has prescribed the five-step process noted above and set forth in 20 C.F.R. § 404.1520. However, if the plaintiff has satisfied his 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).
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).
In this case, the ALJ did not believe the plaintiff description of his limitations. The ALJ properly considered aspects of the plaintiff's testimony that undermined his credibility: the plaintiff admitted that he lied in the past to obtain disability benefits when he filed for and obtained worker's disability compensation benefits even though he was never injured on the job, he cheated on his driver's license test, and he was retired for seven years before he applied for Social Security disability benefits and claimed he could not work. Moreover, Dr. Weir noted that the plaintiff recovered well from his hip surgery and was walking and riding his exercise bicycle regularly. Dr. Schinco found no significant neurological problems and the plaintiff had full range of shoulder motion. The plaintiff had only mild weakness and no muscle atrophy in the right arm. Dr. Goldberger continued throughout the plaintiff's insured period and thereafter to recommend that the plaintiff exercise, which included swimming. No physician ever restricted the plaintiff's exertional activities.
Although subjective complaints of pain may be sufficient to support a claim of disability, see Glass v. Sec'y of Health, Educ. Welfare, 517 F.2d 224, 225 (6th Cir. 1975), Congress has also stated that "there must be medical signs and findings, established by medically acceptable or clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain." 42 U.S.C. § 423(d)(5)(A). Under 20 C.F.R. § 404.1529(b) (1995), the plaintiff must establish an underlying medical condition, and then show either (1) that objective medical evidence confirms the severity of the alleged pain arising from the condition, or (2) the medical condition, objectively determined, is at a level of severity which can reasonably be expected to give rise to the alleged pain. If the plaintiff satisfies this burden, the ALJ must then evaluate the intensity and persistence of the plaintiff's pain symptoms in light of objective medical evidence including the activity which precipitates or aggravates the plaintiff's symptoms, the plaintiff's daily activities, the intensity and duration of his symptoms, and medications, treatment and other means to relieve the symptoms. 20 C.F.R. § 404.1529(c) (1995); see also Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
The ALJ concluded, however, that the plaintiff overstated his disability due to pain and therefore he discounted his testimony. In evaluating a claimant's complaints of pain, the ALJ quite properly may consider the claimant's credibility. See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Kirk v. Sec'y of Health Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). In assessing the credibility of a witness, personal observations are important. In fact, it is one of the reasons underlying the preference for live testimony. See 2 McCormick on Evidence § 245, at 94 (4th ed. 1992); cf. Ohio v. Roberts, 448 U.S. 56, 63-64 (1980), abrogated on other grounds, Crawford v. Washington, 541 U.S. 36 (2004). Thus, an ALJ, who has observed a witness' demeanor while testifying, should be afforded deference when his credibility findings are assessed. See Jones v. Comm'r of Social Sec., 336 F.3d 469, 475-76 (6th Cir. 2003); Villarreal v. Sec'y of Health Human Servs., 818 F.2d 461, 463 (6th Cir. 1987).
The plaintiff contends that the ALJ did not account for the plaintiff shoulder weakness in formulating the hypothetical question to the vocational expert. However, the ALJ did include a restriction against working above shoulder level and pushing or pulling. Moreover, the rule that a hypothetical question must incorporate all of the claimant's physical and mental limitations does not divest the ALJ of his obligation to assess credibility and determine the facts. In fashioning the hypothetical question to be posed to the vocational expert, the ALJ "is required to incorporate only those limitations accepted as credible by the finder of fact." Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). "[A]n ALJ is not required to accept a claimant's subjective complaints and may properly consider the credibility of a claimant when making a determination of disability," and "can present a hypothetical to the [vocational expert] on the basis of his own assessment if he reasonably deems the claimant's testimony to be inaccurate." Jones, 336 F.3d at 476.
After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the magistrate judge properly reviewed the administrative record and applied the correct law in reaching his conclusion. The Court agrees with the conclusion that substantial evidence supports the ALJ's determination that the plaintiff is capable of performing gainful activity.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 11] is ADOPTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 9] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 10] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.