Opinion
Case Number 00-10460-BC.
July 14, 2004
The plaintiff filed the present action on December 5, 2000 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 seeking reversal of the decision of the Commissioner and an award of 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 August 23, 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 main thrust of the plaintiff's motion for summary judgment was that the Administrative Law Judge (ALJ) failed to consider additional evidence that the plaintiff submitted, she says, before the ALJ issued his decision (although it was submitted beyond the thirty-day period following the hearing allowed by the ALJ before he closed the record), and therefore she suffered a deprivation of due process. In light of the new submission, the plaintiff argued, the ALJ's decision on the plaintiff's residual functional capacity to perform a restricted range of light work does not pass the substantial evidence test.
The magistrate judge found that substantial evidence did, in fact, support the "not disabled" conclusion of the Commissioner. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the ALJ. Specifically, however, the plaintiff contends that the magistrate judge failed even to address the argument relating to the later-submitted evidence, that is, the medical records of Dr. Gavin Awerbuch regarding the plaintiff's obstructive sleep apnea and other conditions. See Tr. at 167-175. The plaintiff argues that Dr. Awerbuch's report demonstrates that she cannot get restful sleep and establishes that she cannot work. Although it appears that the plaintiff submitted this report to the ALJ just a little more than a week before he issued his decision, the plaintiff contends that the importance of this report should have been recognized and reviewed by the ALJ and ultimately by the magistrate judge. The plaintiff notes that the information was presented to the Commissioner's Appeals Council for its review; however the magistrate judge's treatment of this point consisted only of a reference to boiler-plate language that the Sixth Circuit does not consider such evidence in assessing the record as presented to the ALJ. Indeed, a review of the report and recommendation discloses that the magistrate judge utterly failed to address the argument that the later-submitted evidence should have impacted the ALJ's decision or that it supported the plaintiff's request for a remand to consider new and material evidence, despite the fact that this issue was squarely presented in the motion papers filed by both parties.
The plaintiff, who is now fifty-four years old, applied for a period of disability and disability insurance benefits on November 13, 1997, when she was forty-eight years old. The plaintiff worked in the housekeeping industry for thirteen years cleaning hotels and offices. She last worked on September 16, 1997, which was the date she alleged her disability began when she slipped and fell on wet tile near an ice-making machine.
In her application for disability insurance benefits, the plaintiff alleged that she was unable to work because of pain in her back and the back of her head, with occasional numbness in her leg and arm. Her claim was initially denied, and the denial was upheld on reconsideration. The plaintiff requested a hearing before an ALJ. On December 8, 1998, the plaintiff appeared before ALJ John A. Ransom when she was forty-nine years old. ALJ Ransom filed a decision on February 23, 1999 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 September 16, 1997 (step one); the medical evidence in the plaintiff's case established that she has "severe" impairments of bilateral carpal tunnel syndrome, radiculopathy, disc herniation and status post cancer surgery (step two); these impairments did not by themselves or in combination meet or equal a listing in the regulations (step three); and the plaintiff could not perform her previous work as a housekeeper, which the ALJ found was unskilled and required a light-to-medium exertional level (step four).
In applying the fifth step, the ALJ concluded that the plaintiff retained the residual functional capacity to perform a restricted range of light work. Her limitations included no repetitive bending, twisting or turning; no repetitive pushing or pulling, gripping or grasping; no air or vibrating tools could be used; no prolonged walking, standing or lifting; and no production line type use of upper extremities. Relying on the testimony of a vocational expert, the ALJ found that such jobs as visual inspector, information clerk, self-service gas station attendant, and order clerk fit within those limitations, and these jobs existed in significant numbers in the local and regional economies. Following the decision by the ALJ, the plaintiff appealed to the Commissioner's Appeals Council, who denied the plaintiff's request for review on November 27, 2000. Thereafter, the plaintiff filed the present action seeking review of the Commissioner's decision.
The plaintiff does not contest the proposition that she 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 [her] previous work but cannot, considering [her] 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 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).
Here, the ALJ concluded that the Commissioner met his burden of proving that the plaintiff could perform some work that was available in the national economy. 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 ALJ and the magistrate judge adequately summarized the evidence in the record — save the plaintiff's February 15, 1999 submission — and that summary need not be repeated here. It is sufficient to observe that no medical provider or examiner had opined that the plaintiff's functional limitations were inconsistent with work at a light exertional level, which the Secretary defines as work that
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b). Although the plaintiff testified at the administrative hearing to more severe limitations, the ALJ found that her testimony was not fully credible, and the Court agrees with the magistrate judge that the ALJ's credibility determination, which is afforded considerable deference, is supported by substantial evidence.
However, the plaintiff contends that Dr. Awerbuch's records submitted with the plaintiff's attorney's February 15, 1999 letter contradict the ALJ's residual functional capacity determination, or at the very least they justify a remand under sentence four of 42 U.S.C. § 405(g) for further consideration. Sentence four of 42 U.S.C. § 405(g) states:
The Court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.
The authority conferred upon the Court by this sentence, however, is subject to the substantial evidence rule noted above. Sentence five of Section 405(g) states: "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."
The magistrate judge suggested that substantial evidence exists in this record to support the ALJ's determination that the plaintiff was not disabled. The plaintiff does not agree with the magistrate judge's conclusion, but, as the Court reads her argument, that position is based primarily on Dr. Awerbuch's "new" evidence.
Moreover, it is not seriously contested that the plaintiff's new exhibit cannot be considered in determining whether substantial evidence in the record exists. In Cline v. Commissioner of Social Security, 96 F.3d 146 (6th Cir. 1996), the court of appeals endorsed the rule that "where the Appeals Council considers new evidence but declines to review a claimant's application for disability insurance benefits on the merits, the district court cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ's decision." Id. at 148 (citing Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993)). The court of appeals applied this same limitation in a case where evidence was submitted to the Appeals Council yet it was never considered in Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 685 (6th Cir. 1992). The prevailing view in the Sixth Circuit appears to be that in such circumstances, the plaintiff's remedy is to seek a remand under sentence six of 42 U.S.C. § 405(g), and the Court will construe the plaintiff's request accordingly.
"In order to obtain a remand for further administrative proceedings, [sentence six of] Section 405(g) clearly requires a showing of both materiality and good cause." Cline, 96 F.3d at 149. The Secretary's regulation that addresses the Appeals Council's function is 20 C.F.R. § 404.970, which states that the Appeals Council will review a case if there is an abuse of discretion by the ALJ, a legal error, a failure to support the ALJ's findings by substantial evidence, or a broad policy issue presented by the case. 20 C.F.R. § 404.970(a). The regulation then states:
(b) If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the Administrative Law Judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the Administrative Law Judge hearing decision. It will then review the case if it finds that the Administrative Law Judge's action, findings or conclusion is contrary to the weight of the evidence currently of record.20 C.F.R. § 404.970(b) (emphasis added). In other words, the Appeals Council has an obligation to review submissions, but only if the submissions constitute "new and material evidence." In Cotton v. Sullivan, 2 F.3d at 696, the court of appeals reversed the district court's judgment in favor of a Social Security claimant where the district court based its determination in part on evidence that had been submitted to the Appeals Council but never submitted to the ALJ. The court noted that the district court's option in such circumstances is to remand to the Agency, but only if good cause can be demonstrated. In passing, the court made reference to the Eighth Circuit's decision in Nelson v. Sullivan, 966 F.2d 363 (8th Cir. 1992), which it declined to follow, but nonetheless in which the court stated: "when new and material evidence is submitted to the Appeals Council, . . . [t]he newly submitted evidence is to become part of what we will loosely describe here as the `administrative record,' even though the evidence was not originally included in the ALJ's record. If the Appeals Council does not consider the new evidence, a reviewing court may remand the case to the Appeals Council if the evidence is new and material." Id. at 366 (emphasis added).
Finally, in Wyatt, the court of appeals noted that where new evidence is presented after the administrative hearing is closed, the "court can remand for further consideration of the evidence only where the party seeking remand shows that the new evidence is material." 974 F.2d at 685 (emphasis added). This rule extends to all stages following the hearing before the ALJ, including where new evidence is presented on appeal to the Sixth Circuit. See Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 243 (6th Cir. 2002).
In this case, the ALJ agreed to keep the record open for thirty days after the December 8, 1998 hearing so that the plaintiff could submit additional medical evidence. There was no objection to that time limit. The plaintiff's February 15, 1999 submission was sent well after the record was closed, and therefore the Court will evaluate whether the evidence warrants further consideration as new and material information under the criteria outlined above.
The submission, which can be found in the Administrative Record at Tr. 167-175, consists of four reports and an opinion letter that were "Dictated but not Reviewed" by Dr. Awerbuch. It is true, as the plaintiff contends, that one of the reports describes an examination that occurred after the date of the administrative hearing, but the balance of the records predate the hearing by as many as five months. The plaintiff argues that the latest report, dated January 18, 1999, introduces the diagnoses of fibromyalgia and obstructive sleep apnea, but the evidence shows that fibromyalgia was discussed in the earlier records. The plaintiff has offered no justification for the late submission, so there is no basis upon which the Court can conclude that good cause exists for the late submission, except for the January 18, 1999 report. The only "new" evidence contained in that report is Dr. Awerbach's impression that the plaintiff suffered from obstructive sleep apnea.
The inclusion of obstructive sleep apnea in Dr. Awrbuch's differential impressions appears to be based exclusively on history and an examination that revealed "a short stocky neck with excessive tissue in the posterior pharynx." Tr. at 170. Dr. Awerbuch ordered a polysomnogram, which presumably could have been confirmatory, but there is no record of the test having been conducted, and certainly no results, and there is no evidence of any palliative treatment ordered for this condition.
The plaintiff testified at the administrative hearing that she became drowsy during the day, but she attributed this condition to the side effects of her medication. Tr. at 189-91, 195. She never complained about obstructive sleep ailments at the hearing or, according to the record, at any time before her post-hearing visit to Dr. Awerbuch on January 18, 1999. "In order for the claimant to satisfy [her] burden of proof as to materiality, [s]he must demonstrate that there was a reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with the new evidence." Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711 (6th Cir. 1988) (citing Carroll v. Califano, 619 F.2d 1157, 1162 (6th Cir. 1980)). The Court concludes that the plaintiff has not met that burden here. The Court does not believe that the new evidence would have persuaded the Secretary that the plaintiff's residual functional capacity was different than ultimately found by the ALJ. Therefore, she has not established a right to a remand for further consideration under sentence six of 42 U.S.C. § 405(g).
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.
Accordingly, it is ORDERED that the Magistrate Judge's report and recommendation is ADOPTED as modified and 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.