Opinion
Case No. 00-CV-10156-BC
February 13, 2003
The plaintiff filed the present action on May 8, 2000 seeking review of the Commissioner's decision denying the plaintiff's claim for widow's benefits upon disability. The case was referred to United States Magistrate Judge Charles E. Binder by this Court's predecessor, the Honorable Victoria A. Roberts 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 a reversal of the Commissioner's decision. The defendant filed a motion for summary judgment requesting that the decision of the Commissioner be affirmed in all respects.
Magistrate Judge Binder filed a Report and Recommendation on December 1, 2000, recommending that plaintiff's motion for summary judgment be denied, defendant's motion for summary judgment be granted and that the findings of the commissioner be affirmed. The plaintiff filed timely objections to the Report and Recommendation and this matter is now before the Court.
The Court has reviewed the file, the Report and Recommendation and the objections thereto, and has made a de nova review of the administrative record in light of the objections filed. The plaintiff's principal objection is that the Magistrate Judge did not properly evaluate the plaintiff's contention, made in her motion for summary judgment, that the Administrative Law Judge's hypothetical question posed to a vocational expert was defective because it did not include all of the salient facts.
The plaintiff in this case is now fifty-five years of age and has a tenth grade education. She was a stay-at-home mom, but went back to work after her husband had a heart attack, following his retirement, in 1989. The plaintiff's husband eventually died of heart problems in 1994.
The plaintiff worked as a seamstress receiving an hourly wage, but was unable to continue that work because of what she claims to be disabling back pain. She tried working at the same occupation on a piece-work basis so that she could establish her own pace, but eventually had to give that up as well.
The plaintiff applied for Social Security disability benefits on the basis of her husband's work record May 19, 1997, claiming that she was unable to work as of July 2, 1996. After her claim was denied initially and upon reconsideration, the plaintiff appeared before Administrative Law Judge (ALJ) William J. Musseman on December 8, 1998. The ALJ filed a decision on January 29, 1999 concluding that the plaintiff was not disabled.
The Social Security Act provides for widows insurance benefits payable to a claimant who has attained the age of fifty years and who is disabled, if the disability began within seven years after the insured spouse dies or seven years after the claimant was last entitled to disability benefits. Sec 42 U.S.C. § 402(e)(1)(B)(ii),(c)(4); 20 C.F.R. § 404.335(c).
After amendments to the Social Security Act in 1990, the definition of "disability" for the purpose of a claimant for widow's insurance benefits is the familiar one found at 42 U.S.C. § 423(d)(1)(A): a person is disabled if that person is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." The claimant must demonstrate that the impairments suffered "are of such severity that he [or she] is not only unable to do his [or her] previous work but can not, considering his [or her] age, education, and work experience, engage in any kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
In determining that the plaintiff was not disabled, the ALJ applied the five-step sequential analysis set forth in 20 C.F.R. § 404.1520, and concluded that the plaintiff had not engaged in any substantial gainful activity (step-one); that plaintiff's lumbar spondylolisthesis, major depressive disorder and left shoulder pain were "severe" within the meaning of the regulations (step-two); the impairments did not meet or equal any of the listings in the regulations (step-three); and that the plaintiff could not perform her previous work as a seamstress (step-four). At step-five, the ALJ concluded that the plaintiff had the residual functional capacity to perform a limited range of light duty work, that is, work that involves lifting and carrying no more than twenty pounds and up to ten pounds frequently, a sit-stand option at will, no squatting, kneeling, crawling or climbing, no repetitive bending, overhead work or repetitive reaching, and no complex tasks. The ALJ further found that there were a significant number of those jobs available in the national economy, and therefore the Commissioner met his burden of establishing that the plaintiff was able to perform some work.
The plaintiff's sole objection is that in determining that the plaintiff had the residual functional capacity to do light work, the ALJ failed to properly pose a hypothetical question to the vocational expert, having omitted the plaintiff's need to lay down periodically during a typical day. The plaintiff contends, therefore, that the hypothetical question posed does not reflect the evidence in the whole record.
It is well established that assessment of residual functional capacity for work must be made only after all of a claimant's limitations have been taken into account. 20 C.F.R. § 416.945. Further, a hypothetical question posed to a vocational expert must include a "complete assessment of [the claimant's] physical and mental state and should include an accurate portrayal of her individual physical and mental impairments." Howard v. Commissioner of Social Security, 276 F.3d 235, 239 (6th Cir. 2002) (internal quotes omitted) (quoting Varley v. Secretary of Health Human Services, 820 F.2d 777, 779 (6th Cir. 1987)).
In this case, there is conflicting evidence as to the plaintiff's physical capabilities and objective medical condition. The Magistrate Judge described these at pages 7 through 9 of his Recommendation and Report. Summarized briefly, the record indicates that diagnostic studies demonstrated degenerative changes in the plaintiff's lumbar spine from 1996. A CT scan showed a disc herniation but a MRI study done approximately six weeks later showed bulging with no herniation. The ALJ noted that an X-ray study done a few days later revealed degenerative disc changes with narrowing disc space at the L5-S1 level, but no disc herniation was mentioned in this report, although there is no evidence that an X-ray study is capable of showing frank herniation. The plaintiff's treating physicians opined that she suffered from radiculopathy secondary to a herniated disc, and that she was a candidate for surgery. She also suffered bursitis of the right shoulder and had been given medication to treat depression. She was reluctant to undergo surgery, however, and no operation was ever performed.
A state agency physician concluded that the plaintiff was capable of performing a limited range of medium work, and a consultative physician, although finding some physical limitation, opined that the plaintiff had no limitation in motion although she had difficulty in squatting.
The plaintiff's testimony is consistent with the limitations which she now urges, particularly the inability to sit or stand throughout an entire work day without frequent periods of rest. However, the ALJ chose to give "great weight" to the findings of the consultative physician, and concluded that the plaintiff's statements of her pain and limitations were not "fully credible." The ALJ found that the consultative physician's opinion was supported by the plaintiff's reports of daily activity, which portrayed a person more physically capable than the plaintiff ultimately claimed to be, and who was able to perform a limited range of light work.
The Court's task in cases such as this is to review the findings of the Administrative Law Judge to determine whether they are supported by "substantial evidence" and are based upon the proper legal standard. See 42 U.S.C. § 405(g). "Substantial evidence means more than a scintilla of evidence. It means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Lashley v. Secretary of Health Human Services, 708 F.2d 1048, 1053 (6th Cir. 1983) (citations omitted).
The plaintiff alleges that the ALJ did not accurately read the plaintiff's reports of daily activity, choosing instead to take "bits and pieces" from the record and aggregate them to produce a false impression of her lifestyle. It is well established that a fair reading of the administrative record must include consideration of all the evidence in context. A "substantial evidence" evaluation does not permit a selective reading of the record. "Substantiality of evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence or even a great deal of evidence. Rather, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.) (internal quotes omitted). See also Laskowski v. Apfel, 100 F. Supp.2d 474, 482 (E.D. Mich. 2000).
The task of this Court on judicial review, then, is to examine the administrative record, particularly the portion upon which the ALJ has placed "great weight," to determine if such reliance is justified within the framework of the substantial evidence test.
In finding that the opinions of the plaintiff's treating physicians was overcome by the statements of the consultative physicians, the ALJ found that the latter opinions were corroborated by the plaintiff's own statements, and therefore deserved "great weight." The ALJ concluded:
In her daily activity sheets, the claimant stated she cares for her personal hygiene, cares for her dog, cooks, does housework, drives, shops, watches television and visits with friends (Exhibit 22F). . . . She appears able to perform numerous activities during the day."
Tr. at 15.
The Court's review of Exhibit 27F discloses that the plaintiff kept daily activity sheets for September 11 through 13, 1998. On the first date the plaintiff arose at 8:30, used the bathroom, showered and took care of her personal needs. At 9:00 a.m., she took several medications including pain medications. At 10:00 am, she recites that she was "having pain in [her] leg" while standing so she sat on the couch and rested with her foot elevated. She was still resting at 11:00 a.m., and reports that at 11:30 am. "the pain hasn't stopped." She took another pain pill and fell asleep. She slept until 2:00 p.m., when her daughter came and woke her. She was up and down off the couch from 2:00 p.m. to 4:00 p.m., at which time she arose to check on her pet dog. At 5:00 p.m., she fixed a sandwich and walked to the mailbox, and an hour later started to fill out paperwork but took another pain pill because of pain in her leg and back. She visited with friends at 7:00 p.m., but notes that she could not "sit or stand very long." She took her medication and went to bed at 10:00 p.m.
The next day, the plaintiff arose at 11:00 a.m., attended to her personal hygiene, took her pain medication and then visited with her granddaughter from 12:30 p.m. to 2:00 p.m. At 2:00 p.m., she reported that her "back is hurting" but did not want to take a pain pill so she "laid on the couch for an hour." At 3:00 p.m. she took more pain medication (Vicodin and Ibuprofen) and reclined on the couch. From 4:00 to 6:30 p.m., she made herself a snack, walked to the mailbox, straightened up around the house, and then laid down and watched TV for an hour. At 7:30 p.m. she took more Vicodin and rubbed her leg with cream to try to ease the pain. At 9:30 p.m., she washed dishes but then laid down again at 10:00 p.m. and rested her leg and back. She went to bed at 11:00 p.m., but woke up at 3:00 a, m. because of cramps in her leg and back, took Vicodin, and walked about in an effort to relief the cramps.
On the third day, the plaintiff arose at 9:30 a.m., showered, dressed and made her bed. She took her medication again at 10:00 a.m., walked outside at 11:00 a.m. to check the weather, and then sat on the couch to watch television. A friend came over and visited at 12:00 p.m. and ate lunch with her, but thereafter at 2:00 p.m. the plaintiff laid down once again after the person left her house. She took another pain pill (Vicodin) and continued to lay down until 4:30 p.m. At 5:30 p.m., she ate supper, put clothes in the dryer and attended to her painful leg. She had to take another pain pill at 6:00 p.m. because she "can't stand it anymore." She took additional medication at 9:30 p.m., and went to bed. But she awoke again at 1:00 a.m. because she could not sleep due to pain and cramps in her leg.
According to 20 C.F.R. § 404 (1567)(b), "light work"
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.
The Court finds it curious that the ALJ pointed to Exhibit 22F in support of his conclusion that the plaintiff "appears able to perform numerous activities during the day." Exhibit 22F, reviewed above, does not support that conclusion, and it does not corroborate the consultative physician's opinion. Reading the entire Exhibit in context, the conclusion is unavoidable that the Exhibit fails to furnish substantial evidence to support the ALJ's conclusion. To the contrary, it casts considerable doubt on the suggestion that the plaintiff could function in a competitive work environment for an entire workday.
What remains in the record is the conclusion of the state examiner and consultative physician, each of whom saw the plaintiff for the brief periods within which they conducted their examinations, However, a treating physician's opinion should be given greater weight than those opinions of consultative physicians who are hired for the purpose of litigation and who examine the claimant only once. See Jones v. Sceretaty of Health Human Services, 945 F.2d 1365, 1370 (6th Cir. 1991); Ferris v. Secretary of Health, Human Services, 773 F.2d 85, 90 (6th Cir. 1985). The plaintiff's treating physicians confirm the objective bases for the plaintiff's complaints of intractable pain.
In this case, the plaintiff's daily activity logs were consistent with her testimony before the ALJ. The ALJ did pose a hypothetical question to the vocational expert which included a requirement that the plaintiff must "lay down or recline at least a total of three hours a day during the work day." The vocational expert responded that there were no jobs available in the national economy, with that additional requirement. Tr. at 205.
The ALJ's conclusion that the plaintiff was capable of performing a limited range of light duty work is not supported by substantial evidence in the whole record. The vocational expert confirmed that there are no jobs available in the national economy which conform to the plaintiff's physical limitations.
Here, the record shows that the plaintiff's "proof of disability is overwhelming." See Mowrey v. Heckler, 771 F.2d 1966, 1973 (6th Cir. 1985). It is appropriate, therefore, to remand this case for benefits because "all essential factuals issues have been resolved and the record adequately establishes plaintiff's entitlement to benefits," Faucher v. Secretaty of Health Human Services, 17 F.3d 1771, 1776 (6th Cir. 1994).
Accordingly, it is hereby ORDERED that the Magistrate Judge's Report and Recommendation is REJECTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 17] is GRANTED.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 18] is DENIED.
It is further ORDERED that the decision of the Commissioner is REVERSED, and the matter is remanded to the Social Security Administration for an award of benefits to plaintiff as of her eligibility date of May 19, 997. See 20 C.F.R. § 404.335(c).