Opinion
Case No. 3:04CV7068.
May 16, 2005
ORDER
This is a social security disability case in which the United States Magistrate Judge has filed a Report and Recommendation recommending affirmance of the decision of the Administrative Law Judge (ALJ), which denied plaintiff's application for benefits. The plaintiff, pro se, has filed objections to the Report and Recommendation. For the reasons that follow, those objections shall, on de novo review, be overruled. The Magistrate Judge's Report and Recommendation shall be adopted, and judgment shall be entered in favor of the defendant and against the plaintiff.
Procedural Background
Plaintiff filed an application for disability insurance benefits (DIB) on August 21, 1998. He alleged that his was disabled beginning on July 25, 1997, because of discogenic and degenerative back disorders. His initial and reconsideration applications were denied. On September 21, 1999, plaintiff, represented by Richard Oestreich who served as plaintiff's counsel and vocational expert (VE), appeared and testified at a hearing before ALJ K. Michael Foley. On March 30, 2000, ALJ Foley ruled for the defendant. There is no evidence in the record that plaintiff sought judicial review of the ALJ's negative determination.
On December 20, 2000, plaintiff again filed an application for DIB claiming that his disabling condition began on July 25, 1997. This application, likewise, was denied upon plaintiff's initial application and upon his request for reconsideration.
Plaintiff filed a third application for SSI/DIB on August 21, 2001, again alleging that his disability began on July 25, 1997. This application, as with the other two applications plaintiff filed, was denied upon plaintiff's initial application and upon his request for reconsideration. On September 8, 2002, ALJ Nino A. Sferrella conducted a hearing at which plaintiff and VE Samuel Osipow appeared and testified. The ALJ issued a decision on January 16, 2003, ruling for the defendant. The Appeals Counsel denied plaintiff's request for review, rendering ALJ Sferrella's decision the final decision of the Commissioner. Plaintiff timely filed this request for judicial review pursuant to 42 U.S.C. § 405(g). On December 1, 2004, the Magistrate, upon conducting her own de novo review recommended to me that the decision of the Commissioner be affirmed and plaintiff's complaint be dismissed. Plaintiff timely appealed the Magistrate's Report and Recommendation to me.
Factual Background
Prior to 1997, plaintiff was employed as a machine operator, truck driver, and carpenter. In 1997, plaintiff stopped working when he suffered a herniated disk in his lower back at L5-S1. He had a laminectomy for this injury which relieved some pain; however, plaintiff suffered from depression and anxiety. In March, 2000, plaintiff underwent pain management therapy. The pain subsided for a short period of time before resuming. Plaintiff was diagnosed with hypertension in 2000.
In 2002, plaintiff treated with a physician for pain management — aqua and drug therapy — associated with his chronic and severe low back pain and sciatica. The drug therapy that plaintiff was under made his pain tolerable such that he was able to walk without crutches. In February and June, 2002, plaintiff underwent localized drug therapy, "saddleblocks," which decreased the intensity and temporarily relieved his pain.
The VE testified that plaintiff was unable to return to his past relevant work; in fact, the VE testified that plaintiff was not able to engage in any work — testimony that the ALJ determined was not credible. The ALJ determined that plaintiff could engage in some light work and most sedentary work.
The period of medical treatment pertinent to this adjudication began on March 31, 2000.
In April, 2000, plaintiff was diagnosed with post laminectomy syndrome and lumbar radiculopathy. On April 21, 2000, plaintiff underwent a lumber epidural steroid injection.
Plaintiff continued drug therapy for pain during August and September, 2000. On December 20, 2000, plaintiff was diagnosed with sleep apnea and prescribed a CPAP machine. Plaintiff's physician, Dr. J.E. Godwin, determined that plaintiff's symptoms of severs oxygen desaturation and apneas were well controlled with the CPAP machine. However, plaintiff returned the CPAP to Dr. Goodwin on May 4, 2001, complaining that he did not like the device.
Plaintiff suffered continual back pain through December 22, 2000. On December 29, 2000, plaintiff's glucose and creatinine levels exceeded the normal ranges.
On January 2, 2001, plaintiff had x-rays taken of his chest; these x-rays showed no active cardiopulmonary disease. On January 20, 2001, plaintiff underwent a myocardial stress perfusion study; the results of which were normal. Blood tests performed on January 3, 2001, and February 23, 2001, showed that plaintiff had elevated cholesterol and triglyceride levels.
On March 12, 2001, Dr. Kwame Osei assessed plaintiff's residual functional capacity (RFC) and determined that plaintiff could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an eight-hour workday, and engage in unlimited pushing and/or pulling. Dr. Osei determined that plaintiff should not climb ladders, ropes, or scaffolds, but that he could occasionally climb using a ramp/stairs, balance stoop, kneel, crouch, and crawl.
On March 29, 2001, a carotid and vertebral ultrasound and CT brain scan were performed; the results of which were normal. However, around the same time, Dr. Chalisani diagnosed plaintiff as depressed and recommended treatment for vocational, pharmacological, and pain management.
On June 20, 2001, Dr. Rodney Routsong determined that plaintiff suffered from lumbar somatic dysfunction and status post lumbar laminectomy, but determined that plaintiff did not suffer from lumbar radiculopathy or myelopathy.
Dr. Esther E. Van Dyne, Ph.D., determined that, as a result of attending pain management classes, plaintiff had made significant progress in controlling his pain. Additionally, plaintiff's sleep and functional abilities had improved.
On August 17, 2001, Dr. Chalisani said that plaintiff was unemployable and suffered from mild depression which moderately limited plaintiff's functional abilities.
On September 5, 2001, Dr. Gary Hinzman, as had Dr. Osei, determined that plaintiff could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours in an eight-hour workday, sit about six hours in an eight-hour workday, and engage in unlimited pushing and/or pulling.
On August 20, 2001, plaintiff's triglycerides and cholesterol levels were still in excess of the recommended range.
In September, 2001, Dr. Donna Winter, Ph.D., determined that plaintiff suffered from depression characterized by flat affect and somatic dysfunction. Dr. Winter determined that plaintiff's functional limitations were mild with respect to restricting the activities of daily living, social functioning, and maintaining concentration, persistence, or pace.
Dr. Naren Lakshmipathy performed facet blocks to plaintiff's L4-5 and L5-SI on June 5 and July 3, 2002.
Standard of Review
Judicial review of a denial of benefits by the Commissioner of Social Security "is limited to determining whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were employed. Hughey v. Comm'r of Soc. Sec., 46 Fed. Appx. 252, 252-53 (6th Cir. 2002) (citing Garcia v. Sec'y of Health Human Servs., 46 F.3d 552, 555 (6th Cir. 1995)). This is a high burden for plaintiff to overcome.
Discussion
The ALJ found, and the Magistrate Judge found substantial evidence supported that finding, that the plaintiff was not under a disability as defined under the Social Security Act.
I agree that there is substantial evidence to support that finding; those who have examined and treated plaintiff have concluded that he can work, as did independent examiners.
Plaintiff offers several pages of conclusory objections to almost each and every paragraph of the Magistrate Judge's Report and Recommendation. Most of plaintiff's objections can be appropriately characterized as plaintiff simply disagreeing with the result or insisting that the ALJ should not have found certain witnesses credible and, conversely, insisting that certain witnesses should have been found credible, without offering any substantive reasons why the ALJ erred. Further, plaintiff objects that the ALJ did not pursue certain lines of evidence. I find that plaintiff's objections are without merit.
Significantly, plaintiff objects that his physician of record was not found to be credible. However, the Commissioner is not bound by a conclusory statement offered by a treating physician that is unsupported by detailed and objective documentation. 20 C.F.R. § 404.1527(d)(2004); Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 855 (6th Cir. 1986).
Plaintiff also objects to the ALJ treating ALJ Foley's determination as res judicata. Res judicata attaches when an agency holds a trial-type hearing. Drummond v. Comm'r of Soc. Sec., 126 F.3d 837, 841 (6th Cir. 1997). Further, "[a] decision concerning a claimant's eligibility for social security benefits is an `initial determination' under the social security regulations. 20 C.F.R. § 404.902. An initial determination is binding unless the claimant requests reconsideration or the Commissioner revises its decision. 20 C.F.R. § 404.905. An initial determination is subject to the doctrine of administrative res judicata." Id. (emphasis added) (citations omitted). Plaintiff did not appeal the ALJ Foley's determination. Therefore, not only was the current ALJ allowed to consider the ALJ Foley's determination, he was required to.
The ALJ properly considered the evidence in the record as a whole and reasonably concluded that plaintiff's subjective complaints of debilitating limitations were not credible, and that plaintiff was not disabled. Plaintiff's suggestion that the ALJ did not properly assess credibility and that the ALJ should have pursued additional lines of evidence fail to show any error by the ALJ. Plaintiff has not established the existence of any evidence which could reasonably be expected to have an impact on the issue of plaintiff's work related abilities after March 30, 2000.
Conclusion
I agree with the Magistrate Judge that substantial evidence supported the ALJ's decision to deny plaintiff's application for benefits. It is accordingly,
ORDERED THAT:
1. Plaintiff's objections to the Report and Recommendation of the United States Magistrate Judge be, and the same hereby are overruled;
2. Plaintiff's request for sanctions be, and the same hereby is denied;
3. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
So Ordered.