Opinion
Case Number 02-10130-BC.
January 31, 2005
The plaintiff filed the present action pro se on May 10, 2002 seeking review of the Commissioner's decision denying the plaintiff's claims for supplemental security income benefits under Title XVI 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 "affirm [her] request for SSI disability." The defendant filed a motion for summary judgment requesting affirmance of the Commissioner's decision. Magistrate Judge Binder filed a report and recommendation on November 26, 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, 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 handwritten objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff is not disabled. She contended in her motion that her impairment met one of the Listings in the Secretary's regulations, although she did not specify which one. In her objections, she contends that she meets the Listing for "throat cancer." She also challenges the conclusion that she has the capacity to perform a range of light work, as determined by the administrative law judge (ALJ), contending that she cannot lift more than twenty pounds or engage in pushing and pulling because of pain. She claims that she cannot lift this weight and complete any light work because of continuous pain.
The plaintiff advanced similar arguments in her motion for summary judgment. As a result of thyroid tumors, the plaintiff underwent a thyroidectomy. She believes that because of the surgery, she can no longer hold a glass of water or perform sedentary or light work; she alleges that she is in extreme pain. The plaintiff further asserts that she cannot speak, read, write, or understand English, and has but a fourth grade education, which taken together with her English skills, substantially limits the number and types of jobs she is qualified to perform. In fact, the plaintiff contends, the ALJ admitted that she could perform only minimal work with these impairments and that there are no jobs in the regional or nation economy for which she is qualified.
The plaintiff, presently fifty years old, applied for supplemental security income benefits on May 24, 1999 when she was forty-five years old. At the time she applied for benefits, the plaintiff had no vocationally relevant past work experience. In June of 1998, the plaintiff was referred for evaluation and treatment of bilateral thyroid nodules. On July 27, 1998, on the recommendation of Dr. John Murphy, the plaintiff underwent a total thyroidectomy. The pathology report revealed colloid nodules, multifocal with fibrosis and chronic hemorrhage and chronic lymphocytic nonspecific thyroiditis, but there is no report of a neoplasms or other cancerous process. The plaintiff had no previous work experience and alleged that she became disabled on February 1, 1999 due to thyroid cancer, headaches, leg pain and numbness, and chest pain.
In her application for benefits, the plaintiff alleged that she was unable to work due to thyroid cancer and back pain. On May 4, 2000, the plaintiff appeared before ALJ Henry Perez, Jr. when she was forty-six years old. ALJ Perez filed a decision on July 26, 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. § 416.920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since the alleged onset of disability (step one); the plaintiff suffered from substantial impairments consisting of status post thyroid cancer, headaches, bilateral lower extremity pain and numbness, and chest pain, which were "severe" within the meaning of the Social Security Act (step two); none of these impairments alone or in combination met or equaled a Listing in the regulations (step three); and the plaintiff had no relevant past work experience (step four).
In applying the fifth step, the ALJ found that the plaintiff had a fourth grade education and is illiterate, and he concluded that although the plaintiff's exertional limitations do not allow her to perform the full range of light work, she was capable of performing work restricted to lifting any carrying up to ten pounds frequently and no more than twenty pounds occasionally in which she would be allowed a sit and stand options; involving no frequent climbing, balancing, stooping, kneeling, crouching, or crawling; and requiring work that can be learned through simple demonstration. 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 she could perform a limited range of light work, and that jobs such as assembler, packager, and sorter fit within those limitations. Based on that finding and using the Medical-Vocational Guidelines found at 20 C.F.R. Part, 404, Subpart P, Appendix 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 April 26, 2002.
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. § 1382c(a)(3)(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. § 1382c(a)(3)(D).
To determine disability, the Commissioner has prescribed the five-step process noted above and set forth in 20 C.F.R. § 416.920. 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 concept of disability relates to functional limitations. Although these functional limitations must, of course, be caused by a physical or mental impairment, in the end, "[i]t is an assessment of what [the claimant] can and cannot do, not what she does and does not suffer from." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (referring to assessment of residual functional capacity).
The plaintiff contends that she established disability at step three of the process because she proved that she suffered from a severe impairment the met one of the Secretary's Listings. In this Circuit, in order to qualify as "disabled" under a Listing in the Secretary's regulations, a claimant must demonstrate that he or she meets all of the criteria contained in the Listing. See Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 855 (6th Cir. 1986).
The ALJ found that none of the plaintiff's severe impairments met or equaled a Listing, and the magistrate judge did not address this argument. As mentioned above, the plaintiff did not suggest in her motion for summary judgment which Listing might apply, but she made reference in her objections to the Listing dealing with cancer. To meet the Listing for malignant neoplastic diseases, the plaintiff must furnish evidence that allows the Commissioner to make an appropriate assessment, as follows:
1. We need medical evidence that specifies the type, extent, and site of the primary, recurrent, or metastatic lesion. When the primary site cannot be identified, we will use evidence documenting the site(s) of metastasis to evaluate the impairment under 13.27.
2. For operative procedures, including a biopsy or a needle aspiration, we generally need a copy of both the:
a. Operative note.
b. Pathology report.
3. When we cannot get these documents, we will accept the summary of hospitalization(s) or other medical reports. This evidence should include details of the findings at surgery and, whenever appropriate, the pathological findings.
4. In some situations we may also need evidence about recurrence, persistence, or progression of the malignancy, the response to therapy, and any significant residuals. (See 13.00G.)20 C.F.R. Pt. 404, Subpt. P, App. 1, § 13.00D. There is no evidence in the record of pathology consistent with cancer. Moreover, the listing for thyroid cancer requires the following proof:
13.09 Thyroid gland.
A. Anaplastic (undifferentiated) carcinoma.
OR
B. Carcinoma with metastases beyond the regional lymph nodes progressive despite radioactive iodine therapy.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 13.09. There is no medical evidence in the administrative record of either of these conditions.
The plaintiff also challenges the ALJ's findings on her residual functional capacity because she says that she has too much pain to perform at the level found by the ALJ. 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).
The Sixth Circuit has prescribed an analytical framework for evaluating subjective complaints of pain:
First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain.Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). The Secretary's regulations also contain these requirements. See 20 C.F.R. § 404.1529(b).
In this case, the ALJ found that the plaintiff's complaints of pain were not fully credible primarily based on the undisputed medical evidence in the administrative record that showed no objective basis for the plaintiff's complaints. The reports of Dr. John Blanchard, Dr. Rizwan Qadir, and Dr. Raina Ernstoff all acknowledge the plaintiff's subjective complaints of pain, but they also all state that the objective testing is normal. It is fair to conclude, therefore, that the objective medical evidence does not establish an underlying medical condition or confirm the severity of the alleged pain.
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 Court has little trouble here concluding, as did the magistrate judge, that substantial evidence supports the findings of the ALJ at each step of the five-step sequential analysis. The plaintiff did not carry her burden through any of the first four steps, and the ALJ's conclusion that the Commissioner carried its step-five burden is supported by the evidence in the administrative record.
After a de novo review of the entire record and the materials submitted by the parties, the Court agrees with the magistrate judge that substantial evidence in the whole record supports the Commissioner's decision that the plaintiff was capable of gainful activity and therefore was not disabled within the meaning of the Social Security Act.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 14] is ADOPTED.
It is further ORDERED that the plaintiff's motions for summary judgment [dkt # 9, 13] are DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 12] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.