Opinion
Case Number 01-10080-BC.
July 14, 2004
The plaintiff filed the present action on February 20, 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 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 decision of the Commissioner to which the plaintiff replied
Magistrate Judge Binder filed a Report and Recommendation on September 28, 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 plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff can lift twenty pounds and thus perform work at the "light" exertional level. The plaintiff argues that no physician of record who treated or examined him has provided an opinion that he is able to lift twenty pounds, and that Dr. Murray B. Levin, a physician who performed a consultative examination, actually restricted the plaintiff to lifting no more than ten pounds. The plaintiff contends that the ALJ erred by not failing to give "great weight" to Dr. Levin's opinion and that of his treating physician, Dr. James Campau, that he is limited to sedentary employment. Since sedentary work is all that he can do, the plaintiff reasons, the ALJ used the wrong Grid Rule to guide his decision and the "proper" Grid Rule dealing with sedentary work mandates a finding of "disabled."
The plaintiff, who is now sixty years old, first applied for a period of disability and disability insurance benefits on February 7, 1997, when he was fifty-three years old. The plaintiff worked for thirty-one years as a laborer insulating pipes, tanks, duct work, and boilers. He suffered a fall on the job in approximately 1983 and injured his legs and ankle. He recovered and continued to work but developed back pain and weakness in his left foot and leg that grew progressively worse over time. He last worked on September 27, 1996, which was the date he alleged his disability began.
In his application for disability insurance benefits, the plaintiff alleged that he was unable to work as a result of pain in his leg and a left foot drop. His claim was initially denied, and the denial was upheld on reconsideration. On March 30, 1998, the plaintiff appeared before ALJ William J. Musseman when he was fifty-four years old. ALJ Musseman filed a decision on April 23, 1998 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 27, 1996 (step one); the medical evidence in the plaintiff's case established that he has "severe" degenerative disc disease (step two); this impairment did not by itself or in combination meet or equal a listing in the regulations (step three); and the plaintiff could not perform his previous work as a laborer installing insulation, which the ALJ characterized as semi-skilled and requiring heavy exertional effort (step four).
In applying the fifth step, the ALJ concluded that the plaintiff retained the functional capacity to perform a range of light work. His limitations included lifting no more than twenty pounds, frequently lifting and carrying no more than ten pounds, and no walking. The ALJ also found that the plaintiff has the nonexertional requirement of the need for a discretionary sit-or-stand option. Relying on the testimony of a vocational expert, the ALJ found that such jobs as assembler, cashier, and order clerk fit within those limitations, and that those jobs existed in significant numbers in the local and regional economies. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on January 6, 2001.
The plaintiff contends that the Commissioner erred in determining that he is not disabled. It is a fundamental principle that the plaintiff bears the burden of proving entitlement to benefits under Title II of the Social Security Act, which means that the plaintiff must establish that he suffers from a disability, as that term is defined in the Act. See Boyse v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). "Disability" means:
inability 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 12 months.42 U.S.C. § 423(d)(1)(A). A claimant suffers from a disability "only if his physical or mental . . . impairments are of such severity that he 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 work which exists in the national economy." 42 U.S.C. § 423(d)(1)(B). The concept of disability, then, 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 ALJ in this case concluded that the plaintiff retained the capacity to perform light work. Although the plaintiff acknowledges that he is able to perform sedentary work, he says that he cannot lift the twenty pounds necessary to perform light work, as it is defined by the Secretary, and that his self-described lifting restriction is supported by the medical opinions in the record.
The terms "sedentary work" and "light work" imply more than their common meaning; they have become terms of art within the Social Security context because they have been precisely defined by the Secretary. Jobs are sedentary if walking and standing are required "occasionally" and other sedentary criteria set forth in the regulations are met. 20 C.F.R. § 404.1567(a) (2002) ("Sedentary work involves lifting no more than ten pounds at a time and occasionally carrying articles like docket files, ledgers, and small tools. . . ."). According to Social Security ruling (SSR) 83-10,
"[o]ccasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than 2 hours of an 8hour work day, and sitting should generally total approximately 6 hours of an 8-hour work day. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.
"Light work," on the other hand,
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). The plaintiff insists that the ALJ's conclusion that he could perform light work is wrong and he seeks judicial relief from that ruling.
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 administrative record is well abstracted by the magistrate judge and need not be repeated here. To summarize, the medical records show that the plaintiff began treating with Dr. Campau, his family doctor, for complaints of back pain and leg weakness in August 1996. Neurolgist Greg Dardas, M.D. saw the plaintiff on referral and performed electrodiagnostic studies, documented the plaintiff's pain complaints, and suggested additional imaging studies to rule out suspected lumbar stenosis. Imaging studies in December of that year showed mild degenerative disc disease in the lumbosacral region but there was no impingement or radiculopathy. Dr. Mark Jones, another neurologist to whom the plaintiff was referred, found "no significant lesion." Physical therapy performed in January 1997 resulted in limited improvement and the plaintiff's prognosis was not optimistic. In that same month, Dr. Jones obtained lumbar and cervical myelograms but was unable to determine a cause of the plaintiff's left leg weakness.
One year later, in January 1998, the plaintiff was examined by Dr. Murray B. Levin at the request of Asbestos Workers Local 47. Dr. Levin's report provides the principal foundation for the plaintiff's argument in this Court. Dr. Levin found some weakness in the muscles of the plaintiff's left leg. His conclusion was recited by the magistrate judge in his report, and it will be repeated here:
Although this man has some mild low back discomfort, he has no evidence of a disc. He seems to have some type of neurological disorder that is manifest by weakness to the left leg associated with an abnormal reflex on this extremity. He also has overactive reflexes on the right as well. The etiology of this neurological abnormality is not apparent to me on the basis of this evaluation, but it is sufficiently severe to interfere with this man's function as an asbestos worker because of the nature of that job. He is disabled from that type of activity, and I am sure it will be permanent unless a curable cause for this man's neurological disorder is forthcoming. However, for the time being he could handle a sedentary-type job were it available.
Tr. at 159-60.
The plaintiff argues that Dr. Levin's opinion that the plaintiff "could handle a sedentary-type job" is in essence a limitation that the plaintiff could perform no more than sedentary work as defined by the Secretary. He asserts that no other evidence supports the plaintiff's capacity to lift more than ten pounds, and certainly not the twenty pounds required by the Secretary's "light work" criteria, and therefore the ALJ's residual functional capacity determination for light work is not supported by substantial evidence.
Among the defects in the plaintiff's argument is the assumption that Dr. Levin intended to incorporate, or even was aware of, the physical limitations in the Secretary's definition of sedentary work. There is no evidence that Dr. Levin intended to impose a lifting restriction on the plaintiff. In fact, none of the plaintiff's treating physicians have imposed lifting restrictions. The only evidence in the administrative record of such restrictions is found in the Residual Functional Capacity Assessment completed by Dr. John C. Hoyt on March 25, 1997 stating that the plaintiff could frequently lift ten pounds and occasionally lift twenty pounds. Dr. Levin was not sending his report to a state agency of any other entity affiliated with the Social Security Administration. There is no evidence that he was conversant with the legal terminology that infuses the Social Security regulations. Dr. Levin was not a treating physician and therefore his opinion does not enjoy the degree of deference generally afforded those who can provide a longitudinal view of the plaintiff's condition. See 20 C.F.R. § 404.1527(d)(2). But even a treating physician's opinion may be rejected if there is good reason to do so. Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988). Where a treating physician renders an opinion using legal language as opposed to medical terminology, the court may reject it if it is not supported by clinical evidence in the record. See Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993).
Dr. Levin's opinion that the plaintiff "could handle a sedentary-type job" does not mean that the plaintiff could perform only within the limits of sedentary work defined by the Social Security regulations, nor is it evidence of such a limitation. The plaintiff argues that there is no evidence that he could lift more than ten pounds, but that argument ignores the rule that it is the plaintiff's burden to establish disability, and there is no medical evidence that the plaintiff is restricted in the amount of weight he can lift. The Court believes that the ALJ's conclusion that the plaintiff could perform a range of light work is supported by substantial evidence on the whole record.
The ALJ was guided by the Secretary's "Grid Rules," specifically 20 C.F.R. pt. 404, Subpt. P, App. 2, Rule 202.14. That Grid Rule, applied to persons who are literate and able to communicate in English and whose previous job experience was semi-skilled but without transferable skills, calls for a finding of "not disabled" for persons approaching advanced age who are capable of undertaking light exertional work and who have a high school education. The Court finds no error in referring to that Grid Rule or in refusing to use Table No. 1, which applies to those whose work capacity is limited to sedentary work.
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.
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 #12] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.