Opinion
Case No. 00-10327 BC
September 30, 2003
The plaintiff filed the present action on December 1, 2000 seeking review of the Commissioner's decision denying the plaintiffs claim for a period of disability, disability insurance benefits and supplemental security income benefits under Titles II and 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), The defendant initially filed a motion to remand alleging that the tape of the administrative hearing could not be located, and a new record was needed. That motion was never pursued and the administrative record was filed, presumably because the tape was subsequently located. The Court will deny the defendant's motion to remand as moot, Thereafter, the plaintiff filed a motion to remand for further proceedings or in the alternative for summary judgment seeking payment of benefits. The defendant filed a motion seeking summary judgment in favor of the Commissioner, to which plaintiff responded.
Magistrate Judge Binder filed a Report and Recommendation on October 31, 2001 recommending that the plaintiffs motion to remand for further proceedings, or in the alternative, 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, to which the defendant responded, and this matter is now before the Court
The Court has reviewed the file, the report and recommendation, the plaintiffs objections, and the Commissioner's response to the objections, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff raises several objections as to the manner in which the magistrate judge recounted the contents of the administrative record, and failed to directly address the legal arguments that the plaintiff raised in his motion for summary judgment. Specifically, the plaintiff complains that the magistrate judge failed to consider the Administrative Law Judge's (ALJ) alleged failure to evaluate all of the factors in Social Security Ruling (SSR) 96-7p when finding that the plaintiffs subjective complaints of disabling back pain were not fully credible. The plaintiff also contends that the magistrate judge did not properly consider evidence suggesting that the plaintiff s condition deteriorated over time following his back surgery. In addition, the plaintiff suggests that the magistrate judge did not address the combined effect of the plaintiffs severe mental impairment (depression) and physical impairment when considering the reasonableness of the ALJ's residual functional capacity assessment. Next, the plaintiff states that the residual functional capacity finding was not supported by substantial evidence, primarily because the ALJ did not include the requirement that the plaintiff lay down four to five times per day for ten minutes at a time, and therefore, the plaintiff argues, the hypothetical question, which omitted this requirement, was unsound. Finally, the plaintiff observes that the magistrate judge failed to address the conflict in the opinions of the treating psychiatrist and the consulting (and testifying) psychologist with respect to the plaintiffs mental impairment, and a disagreement with respect to their respective conclusions on the plaintiffs global assessment of functioning (GAP).
Claude Welch is now forty-seven years old, He worked for a heating and cooling contractor installing heating, ventilation and air conditioning equipment until July 31, 1996, when he alleges that he became disabled, Mr. Welch was injured at work when he fell down an uncompleted stairway and hurt his back on June 16, 1996. Me eventually was diagnosed with a herniatcd disc and underwent a lamincctomy in August 1996. He tried to return to work between May and July 1997, but was unable to do so because of back pain that became progressively worse, He suffered a heart attack in October 1997, and successfully underwent angioplasty with the insertion of a stent.
The plaintiffs claim for disability was based on his back injury and heart attack. His application was initially denied, and the denial was upheld on reconsideration. The plaintiff then appeared before ALJ Earl A. Witten on August 25, 1999, when the plaintiff was forty-three years old. ALJ Witten filed a decision on January 27, 2000 denying benefits because he found that the plaintiff was not disabled. The ALJ reached this conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404, 1520, 416, 920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since the alleged onset date of July 31, 1996 (step one); the plaintiff suffered from substantial impairments, which the ALJ found to be "severe," including disorders of the back, sequella from a myocardial infarction and an affective disorder (step two); none of these impairments by themselves or in combination met or equaled the listing in the regulations (step three); and the plaintiff could not perform his previous work, which the ALJ found to be skilled and to require heavy exertional effort (step four), In applying the fifth step, the ALJ concluded that the plaintiff retained the residual functional capacity to perform a significant range of sedentary work that was restricted to jobs that did not involve repetitive bending, twisting, turning, crawling, squatting, kneeling or climbing, and did not involve work at unprotected heights; permitted him to sit or stand at his option; and only occasionally require dealing with the general public, Relying on the testimony of a vocational expert, and using the Commissioner's medical vocational guidelines as a framework, see20 C.F.R. Pt, 404, Subpt. P, App, 2 §§ 201.28, 201.29, the ALJ found that the plaintiff was not disabled because jobs including unskilled manufacturing work such as assembly, sorting, grading, checking and fabrication fit within those limitations, and that these jobs existed in significant numbers in the national economy.
The crux of the dispute in this case is centered on the ALJ's rejection of the plaintiffs testimony describing his disabling pain because it was not fully credible, coupled with the ALJ's decision to accept the testifying psychologist's opinion of the plaintiffs ability to function over that of the treating psychiatrist The plaintiff sown testimony would support a finding of disability, since he described a combination of impairments that would prevent him from performing even sedentary work because he could not sit or stand in any combination of positions for a full work day, and this condition lasted more than twelve months, Of course, when the plaintiff claims that he is disabled, the ALJ is not required simply to take his word for it, just as the ALJ may not disregard a claimant's testimony without good reason, Nonetheless, it is the ALJ's responsibility to determine the facts within the framework of the rules established by Congress, the Secretary of Health and Human Services, and the Commissioner of Social Security.
The social security system established by Congress is comprised of an administrative level at which claims arc adjudicated, and a judicial level at which administrative decisions arc reviewed by the federal courts solely to determine if they arc within statutory authority and arc not arbitrary and capricious. See Sullivan v. Zebley, 493 U.S. 521 (1990), At the administrative level, the state agency, pursuant to authority delegated by the Social Security Administration, makes the initial determination and processes the first appeal. See Bowen v. Yuckcrt, 482 U.S. 137, 142 (1987).
The Court's task in reviewing a Social Security disability determination is a limited one. The ALJ's findings arc conclusive if they arc 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 arc supported by substantial evidence on the whole record. See Wright v. Mcmanari, 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 Scrvs., 667 F.2d 524, 535 (6th Cir, 1981) (quoting Richardson v. Peralex, 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, however, is obliged to review the ALJ's findings relating to credibility to insure that the rules have been applied. Here, there is little doubt that the plaintiffs relief following his back surgery in August 1996 was short-lived. Contrary to the plaintiffs contention in his objections, the magistrate judge acknowledged this fact, and the record, including the reports of Dr. Donald Newman, docs document some positive findings. Likewise, the ALJ found that the plaintiffs "underlying medically determinate impairments . . . could reasonably cause the pain or symptoms alleged," Tr. at 19. More is required for a disability determination, however.
Although subjective complaints of pain may be sufficient to support a claim of disability, sec Glass v, See'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).
This analytical template reflects the requirements included in the regulations. Under 20 C.F.R. § 404 J 529(b) (1995), the plaintiff must establish an underlying medical condition, and then show either (1) that objective medical evidence confirms the severity of the alleged pain arising from the condition, or (2) the medical condition, objectively determined, is at a level of severity which can reasonably be expected to give rise to the alleged pain. If the plaintiff satisfies this burden, the ALJ must then evaluate the intensity and persistence of the plaintiffs pain symptoms in light of objective medical evidence including the activity which precipitates or aggravates the plaintiffs symptoms, the plaintiff's daily activities, the intensity and duration of his symptoms, and medications, treatment and other means to relieve the symptoms. 20 C.F.R. § 404.1529(c) (1995).
The ALJ concluded, however, that the plaintiff overstated his disability due to pain and therefore he discounted his testimony, In evaluating a claimant's complaints of pain, the ALJ quite properly may consider the claimant's credibility, See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Kirk v. Sec'y of Health Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). In assessing the credibility of a witness, personal observations are important. In fact, it is one of the reasons underlying the preference for live testimony. See 2 McCormick on Evidence § 245, at 94 (4th cd. 1992); cf. Ohio v. Roberts, 448 U.S. 56, 63-64 (1980). Thus, an ALJ, who has observed a witness' demeanor while testifying, should be afforded deference when his credibility findings arc assessed, See Jones v. Comm'r of Social Sec., 336 F.3d 469, 475-76 (6th Cir. 2003); Villarreal v. Sec'y of Health Human Servs., 818 F.2d 461, 463 (6th Cir. 1987), The Court is not obliged to accept an ALJ's assessment of credibility, however, if the finding is not supported by substantial evidence. Beavers v. Sec'y of Health, Educ. Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978).
The plaintiff contends that the ALJ ignored the mandate of SSR 96-7p, which provides, in part, as follows:
In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. § 404, 1529(c) and 416, 929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
61 Fed, Reg. 34,471, 34,485 (1996). The record, however, suggests otherwise. The ALJ specifically stated:
In giving consideration to the claimant's complaints of pain, the undersigned has considered the nature, location, onset, duration, frequency, radiation, and intensity of pain by reviewing the medical records and the testimony of the claimant. Consideration has also been given to the precipitating or aggravating factors, type of medication, dosage, effectiveness and side effects, type of treatment, the claimant's daily activities, and other matters relating to the claimant's condition,
Tr. at 19. The ALJ did not deal in depth with each of these factors; however, he is not required to do so, See Anderson v. Bowen, 868 F.2d 921, 924 (7th Cir. 1989). The ALJ's review of the medical record was thorough and comprehensive, as even the plaintiff has acknowledged, The Court finds that the ALJ applied the rules for evaluating the plaintiffs credibility and that his decision was supported by substantial evidence.
The plaintiff also complains that the ALJ did not adequately account for the plaintiff's mental impairment (severe depression) when determining the plaintiffs residual functional capacity. This complaint relates to the plaintiffs other argument concerning the competing evidence from the treating and consulting mental health professionals. Dr. M. H. Syed and Dr. Gerald R. Williams both treated the plaintiff and found his GAF to be in the range of forty-five to forty-seven, indicating serious psychological symptoms or serious impairment in social or occupational functioning. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders — Text Revision 34 (DSM-IV-TR), 30 (4th cd. 2000), The ALJ, however, concluded that the plaintiffs limitations were not nearly so severe, relying primarily on the opinion of Dr. Jeffrey Andert, a psychologist who conducted a record review and testified at the administrative hearing. Dr. Andert in turn, based his opinion in part on the plaintiffs own description of his activities and his participation in the state internship program in which he worked four days per week on a computer, filing documents, and working at other tasks.
The plaintiff argues that the treating physician rule ought to govern in this case and should have swayed the ALJ toward a determination of a more profound mental impairment. Indeed, the Rule promulgated by the Secretary states that: "more weight [will be given] to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or reports of individual examinations, such as consultative examinations or brief hospitalizations," 20 C.F.R, § 404.1527(d)(2). The Sixth Circuit has consistently applied this rule, A treating physician's opinion should be given greater weight than those opinions of consultative physicians who arc hired for the purpose of litigation and who examine the claimant only once. See Jones v. Sec, *y of Health Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991); Farm v. Sec'y of Health Human Scrvs., 773 F.2d 85, 90 (6th Cir, 1985), If a treating physician's opinion is not contradicted, complete deference must be given to it. Walker v. Sec'y of Health Human Servs, 980 F.2d 1066, 1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). However, 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).
Here, the ALJ found that the plaintiffs performance in the state intern program did not amount to substantial gainful activity, but nonetheless displayed a level of functioning beyond that to be inferred from Dr. Side's conclusions, The ALJ also discounted the severity of the plaintiffs mental impairment because the plaintiff apparently discontinued his medication and failed to keep appointments with his psychiatrists. See Tr. at 15-16.
This evidence provides record support for the ALJ's findings, including a justification for rejecting the opinion of Dr. Syed that the plaintiff was operating in the severely impaired range. Although the evidence supports a contrary conclusion, which the Court may well have drawn from the record, substantial evidence also supports the findings of the ALJ, who actually observed the testimony of some of the witnesses, and to whom factual determinations arc entrusted.
In fashioning a hypothetical question to the vocational expert, the ALJ accommodated the plaintiffs mental impairment by limiting the range of jobs to those requiring only one— or two-step processes, low stress, and limited contact with coworkers and the public. The ALJ also refused to base his conclusion on a hypothetical question that included the need to lie down during the day, The plaintiff claims that the hypothetical questions, therefore, were improper because the plaintiffs mental and exertional limitations were not properly taken into consideration. The Magistrate Judge did not deal with these issues in any detail.
It is true that there is evidence in the record that would have supported a hypothetical question that contained more severe restrictions. However, the ALJ did not find that those restrictions were as severe as the plaintiff contends. The rule that a hypothetical question must incorporate all of the claimant's physical and mental limitations docs not divest the ALJ of his or her obligation to assess credibility and determine the facts. In fashioning the hypothetical question to be posed to the vocational expert, the ALJ "is required to incorporate only those limitations accepted as credible by the finder of fact." Cascy v. Sec'y of Health Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). "[A]n ALJ is not required to accept a claimant's subjective complaints and may properly consider the credibility of a claimant when making a determination of disability," and "can present a hypothetical to the [vocational expert] on the basis of his own assessment if he reasonable deems the claimant's testimony to be inaccurate." Jones, 336 F.3d at 476, The ALJ's hypothetical questions were valid in this case.
After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the Magistrate Judge reached the proper conclusion. The Court finds against the plaintiff on those issues properly presented but not addressed by the Magistrate Judge.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the plaintiffs motion to remand or in the alternative for summary judgment [dkt #23] 5s DENIED as moot.
It is further ORDERED that the defendant's motion for summary judgment [dkt #24] is GRANTED. The findings of the Commissioner arc AFFIRMED, and the complaint is DISMISSED with prejudice.
It is further ORDERED that the defendant's motion to remand [dkt #14] is DENIED AS MOOT.