Opinion
Case Number 01-10317-BC.
December 22, 2004
The plaintiff filed the present action on September 12, 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 her benefits. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner to which the plaintiff replied.
Magistrate Judge Binder filed a report and recommendation on April 2, 2002 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, 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 had improved medically and was no longer "disabled" within the meaning of the Social Security Act and entitled to benefits. The plaintiff made three arguments in her motion for summary judgment and she repeats them nearly verbatim in her objections. First, she claims that the testimony and records submitted by treating doctors demonstrate that she has not undergone medical improvement. She specifically relies on records of a 1997 hospitalization and ongoing clinical treatment from October 1997 to April 1999. She contends that the Court should discredit the psychological examination conducted by Lynne Tenbusch, Ph.D., because Dr. Tenbusch failed to state a conclusive diagnosis, made determinations contrary to the weight of the other medical documentation, and is not a "doctor." The plaintiff also alleges that the ALJ's mistaken reference to Dr. Tenbusch as "doctor" demonstrates that he gave improper weight to the report.
Second, the plaintiff alleges that the ALJ ignored evidence of the plaintiff's psychiatric condition when determining that she had the residual functional capacity for medium work. She also claims that the ALJ's decision is internally inconsistent because he found that the plaintiff "often" had deficiencies in concentration, persistence, or pace, which is inconsistent with the ability to perform a full range of medium exertion work if that term is quantified as the court suggested in Bankston v. Comm'r of Social Sec., 127 F. Supp. 2d 820, 827 (E.D. Mich. 2000).
Third, the plaintiff insists that the ALJ used an incorrect analysis to determine that her medical condition had improved. She contends that there is a presumption of eligibility in continuation cases and that the ALJ improperly relied on a finding of the Michigan Disability Determination Service to determine that the plaintiff improved medically as of August 1996 and then shifted the burden to her to prove that she had a new disability. She alleges that the ALJ should have considered all available medical evidence as a whole to determine if her condition had improved and not focus solely on the August 1996 date.
Except for the basic review of the substantiality of evidence supporting the ALJ's assessment of residual functional capacity, the magistrate judge failed to address the plaintiff's arguments raised in the summary judgment motion. Moreover, the magistrate judge found, contrary to the record, that the ALJ utilized the five-step sequential analysis set forth in 20 C.F.R. § 404.1520 to determine disability. Rather, the ALJ applied an eight-step analysis, to which the magistrate judge made reference later in his report, because the plaintiff previously had been found disabled and sought administrative review of a determination that she had improved to the point that she could engage in substantial gainful activity.
A person previously determined to be disabled is not entitled to the continuation of benefits if the disability dissipates to the extent that the individual is able to perform gainful activity. See Cutlip v. Sec'y of Health Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Contrary to the plaintiff's argument, a prior disability determination does not create a presumption of continuing disability, see 42 U.S.C. § 423(f)(4); rather, the prior determination is used as a reference point from which to evaluate whether any medical improvement has been realized relating to the individual's ability to work. 42 U.S.C. § 423(f). The Secretary defines "medical improvement" as "any decrease in the severity of your impairment(s) which [ sic] was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s)." 20 C.F.R. § 404.1594(b)(1).
The medical improvements that are relevant to a disability determination must be those that increase an individual's functional capacity to engage in gainful activity, that is, the ability to do basic work. 20 C.F.R. 404.1594(b)(3), (4). To make this determination, the Commissioner employs an eight-step sequential analysis that examines whether the beneficiary is working (step 1); if not, does the impairment meet or equal a listing (step 2); if not, has there been " any" medical improvement (step 3); if so, does the medical improvement relate to the ability to work (step 4); if there is no improvement related to ability to work, does an exception apply (step 5); if there is an improvement related to work ability, are the current impairments alone or in combination "severe" (step 6); if so, does the beneficiary's residual functional capacity permit performance of past work (step 7); if not, does the beneficiary have the RFC to perform other work (step 8). See 20 C.F.R. § 404.1594(f).
The ALJ applied the analysis cited above. The plaintiff claims that the ALJ committed error, however, because he violated the rule in Difford v. Sec'y of Health Human Servs., 910 F.2d 1316 (6th Cir. 1990), by limiting his consideration to evidence of the plaintiff's condition only through the August 1996 medical improvement date. In Difford, the court construed the language of 42 U.S.C. § 423(f) governing cessation of benefits when a disability ends. Congress stated that benefits should terminate when substantial evidence supports the finding that there has been "any" medical improvement and "the individual is now able to engage in substantial gainful activity. . . . Any determination under this section shall be made on the basis of all the evidence available in the individual's case file, including new evidence concerning the individual's prior or current condition which is presented by the individual or secured by the Secretary." 42 U.S.C. § 423(f)(1)(B)(i) (1985) (quoted in Difford, 910 F.2d at 1318) (emphasis by the court). The court held that "we believe that the plain meaning of statutory references to `now' or `current' compels a consideration of an individual's ability to perform substantial gainful activity at the time of the hearing." Id. at 1320. But see Henley v. Comm'r of Social Sec., 58 F.3d 210, 213 (6th Cir. 1995) (holding that if a claimant loses his disability status prior to the reconsideration hearing, consideration of the claimant's condition is limited to the last date of his insurability).
The administrative record does not disclose a violation of the rule in Difford. The ALJ focused on the August 1996 date as the point of medical improvement, but he considered all of the evidence through the hearing date, including the plaintiff's appearance at the hearing, to determine whether she could engage in gainful activity. The ALJ found that "[t]he claimant's disability ceased as of August, 1996" and that "[t]he claimant did not again become disabled up through at least the date of the hearing." Tr. at 23 (emphasis added). This finding, if supported by substantial evidence would support a termination of disability benefits under Section 423(f).
The administrative record shows that the plaintiff, who is presently fifty-four years old, was found to be disabled with chronic depression as of September 23, 1987. She previously had worked as an assembler for ten years at a production facility. The state disability service then determined in August 1996 that her disability ceased and that benefits would terminate as of October 1996. The plaintiff's request for reconsideration of that decision was denied. She applied for a hearing before an ALJ to establish a period of disability and disability insurance benefits on June 3, 1998, when she was forty-eight years old. The plaintiff has not worked since the cessation of her benefits in August of 1996.
The plaintiff's son was killed in 1986, and the resulting grief contributed to depression that has troubled her since 1972. She has long history of hospitalization for her psychiatric instability and has been diagnosed with schizoaffective disorder, schizotypical personality disorder, and chronic depression. She also suffers from tunnel syndrome and has a hernia. However, she has had virtually no treatment for her mental illness between 1989 and August 1996, and, according to her daily activity logs, she has led a relatively normal life with her condition controlled by medication until May 6, 1997 when she was admitted to a hospital for a mental breakdown. She had stopped taking her medication.
In her application for disability insurance benefits, the plaintiff alleged that she was unable to work due chronic depression, paranoia, nervous disorder, carpal tunnel syndrome, and a rectal hernia. On June 8, 1999, the plaintiff appeared before ALJ William J. Musseman when she was forty-nine years old. ALJ Musseman filed a decision on August 17, 1999 in which he found that the plaintiff was not disabled and had medically improved. The ALJ reached that conclusion by applying the eight-step sequential analysis described above. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since September 23, 1987 (step one); the plaintiff did not have an impairment that met or equaled a listed impairment found in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 (step two); the plaintiff enjoyed a medical improvement since the comparison date of July 13, 1989 (step three); the improvement related to the plaintiff's ability to work (step four); the plaintiff's schizoaffective disorder, carpal tunnel syndrome, and hiatal hernia were "severe" within the meaning of the Social Security Act, although her history of heart palpitations was not severe (step six); and that the plaintiff could not perform her previous work as an assembler as of August 1996 (step seven).
In applying the eighth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform a restricted range of medium and unskilled work as reduced by certain limitations. He determined that she was able to perform work that involves occasional lifting of up to 30 pounds, and a low stress working environment with no quotas, no contact with the public, occasional dealings with co-workers, and minimal supervision. Relying on the testimony of a vocational expert, the ALJ found that such jobs as groundskeeper, janitor, truck operator, and farm laborer, as well as a full range of sedentary work fit within those limitations, and that those jobs existed in significant numbers in the local and regional economies. The ALJ then 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, who denied the plaintiff's request for review on July 23, 2001.
The medical evidence in the record after July 13, 1989 shows that the plaintiff regularly visited her physicians, Drs. Chan and Rosenbaum, and that she had virtually no treatment for mental health ailments through 1996. An entry in the progress notes dated August 21, 1990 states that she was taking Prozac and as a result her anxiety and depression were greatly reduced. Tr. at 223. On June 15, 1996, the plaintiff was seen by Lynne G. Tenbusch, Ph.D., a psychologist. The plaintiff not only criticizes Dr. Tenbusch's findings, but her attorney argues that she is not a "doctor" and thus not worthy of the consideration given her by the ALJ. Counsel proceeds then to refer to her as "Ms. Tenbusch" throughout his brief and objections. The Court observes that a person who has obtained a doctor of philosophy degree in the field of psychology has earned the right to use the honorific "doctor," and qualifies as a proper "medical source" under the Secretary's regulations. See 20 C.F.R. § 404.1513(a). The ALJ did not place inordinate or undue weight on the opinions and findings of Dr. Tenbusch.
Dr. Tenbusch reports that although the plaintiff had been hospitalized six times for psychiatric reasons between 1972 and 1984, the plaintiff herself acknowledged that by the August 1996 examination "I don't have much trouble with anxiety or depression, not much and definitely not as bad." Tr. at 156. Dr. Tenbusch observed the plaintiff in her waiting room "chatting easily" with other patients and she appeared "very easy" in public. Ibid. She presented no indication of a psychotic process. Dr. Tenbusch performed the basic sensorium and mental status examination to which the plaintiff responded with some difficulty as to calculations. She arrived at no definitive diagnosis and deferred the prognosis, but found that the plaintiff's current level of functioning was 80 to 82 on the Global Assessment of Functioning (GAF) scale. The GAF scale is reflected in Axis V of a differential diagnosis. "Axis V is for reporting the clinician's judgment of the individual's overall level of functioning. This information is useful in planning treatment and measuring its impact, and in predicting outcome. The reporting of overall [psychological, social, and occupational] functioning of Axis V is done using the Global Assessment of Functioning (GAF) Scale." See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders — Text Revision 34 (DSM-IV-TR), 30 (4th ed. 2000). A GAF Scale of 71 to 80 indicates no more than slight impairment in areas such as social or occupational functioning. Id. at 32.
Other medical consultants reviewed the plaintiff's medical records in August and October 1996 and concluded that the plaintiff retained the capacity to preform unskilled work on a sustained basis. However, the plaintiff apparently became noncompliant with her medication prescription and was hospitalized for a breakdown from May 6 through 19, 1997. She was assessed by a medical social worker, Eraina Poole, in April 1998 an found to have a GAF of 53 (and as low as 30 during the previous year) due to delusions and hallucinations, but the plaintiff was still refused to take her medication. Moreover, the notes from the East Village Psychological Clinic from January 9, 1998 state that the plaintiff had experienced no delusions or hallucinations and that her thought content was under control. The notes through February 1999 repeat the observation that the plaintiff was noncompliant with medication orders.
The plaintiff in this Court does not contest any findings as to exertional capacity. However, she says that the ALJ's findings on her mental impairment is not supported by substantial evidence. The Court disagrees. 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. § 423(d)(1)(A) (B), a person is disabled if 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." The Commissioner's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence 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). See also Lashley v. Sec'y of Health Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983). The reviewing court must affirm the Commissioner's findings if they are supported by substantial evidence and the Commissioner employed the proper legal standard. Walters v. Comm'r of Social Sec., 127 F.3d 525, 528 (6th Cir. 1997). This Court may not base its decision on a single piece of evidence and disregard other pertinent evidence when evaluating whether substantial evidence in the record exists. 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'y of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). 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 record supports the finding that the plaintiff was disabled due to her psychiatric condition in 1989, she enjoyed a long history of stability living and functioning in the community while taking her medication, she acknowledged to the examiner that she was not troubled by anxiety or depression, she voluntarily stopped taking her medication, and she relapsed into difficulty for which she was hospitalized for fourteen days in May 1997. The general rule is that a claimant who does not follow a treatment regime that will mollify an impairment and permit the claimant to work cannot claim a disability or benefits. See Johnson v. Sec'y of Health and Human Servs., 794 F.2d 1106, 1111 (6th Cir. 1986) (stating that "[t]he general rule is that an impairment that can be remedied by treatment with reasonable effort and safety cannot support a finding of disability"); see also 20 C.F.R. 405.1530(a) (b) (stating that "[i]n order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work," and "[i]f you do not follow the prescribed treatment without a good reason, we will not find you disabled or, if you are already receiving benefits, we will stop paying you benefits"). An exception to that rule arises when the plaintiff can demonstrate that palliative measures may be ineffective or even harmful. However, in this case, the evidence supports a conclusion that the treatment was effective, and plaintiff offers no evidence or argument that she had a good reason to discontinue her medication. See Plank v. Sec'y of Health and Human Servs., 734 F.2d 1174, 1176 (6th Cir. 1984) (holding that the plaintiff's failure to submit evidence indicating good reason to stop taking medication "indicates that there probably is no evidence to be offered"). The ALJ's determination that the plaintiff could perform medium work despite her mental impairment, therefore, had substantial evidentiary support.
Nor was the ALJ's determination internally inconsistent. The plaintiff argues that the ALJ did not completely account for her limitations on her ability to concentrate. She points to the PRTF and suggests that the range of frequency of this deficiency in five categories from "never" to "constant," with "often" being the third category, implies a linear range that can be arithmetically quantified. She argues that "often" implies deficiencies in concentration fifty percent of the time, presumable within a range of 37-1/2 % to 62-1/2 %. She then points to the decision in Bankston v. Comm'r of Social Sec., 127 F. Supp. 2d 820, 827 (E.D. Mich. 2000), to support her argument that she cannot perform medium work at a sustained level.
In Bankston, the court indeed attempted to quantify the term "often," but reversed the ALJ's no-disability finding not because the hypothetical question failed to incorporate that concept, but rather because the claimant's attorney actually posed a question to the vocational expert that incorporated the notion that the deficit occurred more than fifty percent of the time and obtained a response that supported a disability finding.
The record in this case contains no such evidence. Rather, the ALJ's formulation of residual functional capacity in constructing the hypothetical question including limitations of "no complex task to be defined as one and two step task only, no dealing with the general public, only occasional dealing with co-workers . . . a low stress job which defines as no hourly production quotas." Tr. at 59. It is reasonable to conclude, therefore, that the vocational expert actually took into account the limitations that the plaintiff is advocating in this Court.
After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the although the magistrate judge did not properly review the administrative record or apply the correct law in reaching his conclusion, his conclusion that substantial evidence supports the ALJ's determination that the plaintiff is not disabled within the meaning of the Social Security Act is correct.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 12] is REJECTED IN PART AND ADOPTED IN PART.
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 # 11] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.