Opinion
Case Number 00-10446-BC.
July 14, 2004
The plaintiff filed the present action on December 1, 2000 seeking review of the Commissioner's decision denying the plaintiff's claim 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 to remand for further proceedings. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner, to which plaintiff responded.
Magistrate Judge Binder filed a report and recommendation on July 18, 2001 recommending that the plaintiff's motion to remand 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 had the residual functional capacity to perform a limited range of work at a "light" exertional level, since the ALJ, according to the plaintiff, did not properly evaluate the plaintiff's subjective complaints of pain. Another objection focuses on the ALJ's step-two analysis: the plaintiff criticizes the failure to explain the reasoning for the conclusion that the plaintiff's impairments did not meet or equal a listing in the Secretary's regulations. The plaintiff also complains that the ALJ's hypothetical questions to the vocational expert failed to consider her carpal tunnel syndrome and vision loss. As a result, the expert stated that the plaintiff could work as a sewing machine operator and visual inspector; however, those jobs require the use of foot controls, which the plaintiff says she cannot operate due to her foot and ankle pain, and visual acuity, respectively. The plaintiff asks that the case be remanded with the instruction that the ALJ incorporate all severe impairments within the hypothetical question to the vocational expert. Finally, the plaintiff complains that the magistrate judge failed to evaluate the evidence in the record "taken as a whole."
The plaintiff, who is now forty-nine years old, first applied for disability and supplemental security income benefits on January 22, 1998, when she was forty-two years old. She immigrated from Laos where she worked on a farm. In this country, she worked as a dishwasher for three months in 1989 and has no other relevant work history. The plaintiff has no education and cannot speak English. She is married and has nine children, eight of whom lived with her and her husband at the time of the administrative hearing.
The plaintiff alleged that she became unable to work on June 25, 1993, although her disability was evaluated as of the January 22, 1998 application date. Her claim was initially denied, and the denial was upheld on reconsideration. The plaintiff appeared before ALJ William J. Musseman on December 9, 1998 when she was forty-three years old. ALJ Musseman filed a decision on January 27, 1999 denying benefits because he found that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ reached this 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 any substantial gainful activity (step one); the plaintiff suffered from cervical myofascial pain, lumbar radiculopathy, carpal tunnel syndrome, tarsal tunnel syndrome, vision loss, and diabetes with neuropathy to the feet (step two); this impairment did not itself or in combination meet or equal a listing in the regulations (step three); and the plaintiff had no past relevant work history (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity for light work. Her limitations included no lifting or carrying over twenty pounds at a time and up to ten pounds frequently; a sit/stand options; an ability to alternate positions frequently; no prolonged standing or walking (at most 5 minutes per hour); no overhead reaching, no repetitive head or neck turning; no repetitive bending, squatting or kneeling; no writing or written instructions; and no conversation with the general public or co-workers. Relying on the testimony of a vocational expert, the ALJ found that such jobs as light bench assembly, sedentary assembly, visual inspector, and sedentary sewing machine operator fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies.
The main thrust of the plaintiff's quarrel with the magistrate judge's report is that the magistrate judge failed to find that the ALJ's determination of the plaintiff's residual functional capacity (RFC) was "faulty," and the hypothetical question to the vocational expert based on that RFC was therefore defective. The RFC is faulty, the plaintiff claims, because it did not account for her "severe" impairments, as found by the ALJ, relating to her carpal tunnel syndrom, foot and ankle pain, and vision.
Regarding the plaintiff's foot and ankle pain, the plaintiff contends that the magistrate judge did not apply the facts of the case to the cited regulation governing the evaluation of subjective complaints of pain. The magistrate judge merely recited the requirements of 20 C.F.R. § 404.1529 and then concluded that there was insufficient evidence on which to overturn the decision. See RR at 15. The plaintiff points to evidence in the record that her foot pain was caused by a "double crush phenomenon," that is, a condition of two nerves ending in the same peripheral region that independently have been compromised. See tr. at 139. In this case, there is evidence that the plaintiff suffers from peripheral neuropathy and also lumbosacral radiculopathy affecting the left ankle.
In order for complaints of pain to support a disability finding, under 20 C.F.R. § 404.1529(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 plaintiff's pain symptoms in light of objective medical evidence including the activity which precipitates or aggravates the plaintiff's symptoms, the plaintiff's daily activities, the intensity and duration of her 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 her disability due to pain and therefore he discounted her 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 ed. 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 are assessed. See Jones v. Comm'r of Soc. 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).
In this case, the ALJ rejected the plaintiff's testimony as not fully credible. He stated:
She testified that she cannot do anything. However, this is inconsistent with the objective medical findings. During her consultative examination on March 21, 1998, she had no difficulty getting on and off the examination table and no difficulty in walking heal to toe (Exhibit 6F). There was no dexterity loss, and she was able to pick up a coin, open a door and fasten buttons. She had a "slightly" limited cervical rotation with no evidence of radiculopathy. Notes by Dr. Lisa Olsen in May 1998 state the claimant had difficulty walking on her heals, but she had normal fait (Exhibit 5F, pg 7). Notes on April 22, 1998, state the claimant's previous MRI showed minimal bulging annulus at L5-S1 without disc herniation (Exhibit 7F, pg 3). The claimant does have functional limitations, and these have been accounted for in the current residual functional capacity.
Tr. at 15-16. The Court agrees with the magistrate judge's conclusion that substantial evidence supports the ALJ's determination. The ALJ gave reasons for his conclusion and pointed to specific medical evidence in the record. The Court's task in reviewing a Social Security disability determination is a limited one, and the ALJ's findings are conclusive if they are supported by substantial evidence, according to 42 U.S.C. § 405(g). "`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, 667 F.2d at 535 (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 v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). 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 believes, therefore, that the ALJ properly accounted for the appropriate level of lower extremity limitation in determining the plaintiff's RFC.
The plaintiff also claims that the RFC is inconsistent with the list of impairments that the ALJ found to be "severe" in his step-two analysis. As noted above, the ALJ found that the plaintiff suffered from the severe impairments carpal tunnel syndrome and vision loss, among others, but no limitations accounting for poor vision or manual impairment were included in the RFC or the hypothetical question posed to the vocational expert. The plaintiff argues in essence that if a limitation is found to be severe at step two of the sequential analysis, then that severe impairment should be taken into account by limiting the jobs that the plaintiff could perform. Based on that inconsistency, the plaintiff suggests that the list of jobs that the vocational expert stated the plaintiff could perform conflicts with the description of such jobs contained in the Dictionary of Occupational Titles.
The Court believes, however, that conflating the step-two analysis with the RFC determination distorts the meaning and purpose of both. In this Circuit, the step-two burden of establishing a "severe" impairment has been characterized as "de minimis." See Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Murphy v. Sec'y of Health Human Servs., 801 F.2d 182, 185 (6th Cir. 1986). The Commissioner states that an impairment is "not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities, [such as] walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . [u]nderstanding, carrying out, and remembering simple instructions, [and] [u]se of judgment." 20 C.F.R. § 404.1521. Thus, in Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985), the Court of Appeals held that an impairment qualifies as "non-severe" only if it "would not affect the claimant's ability to work," regardless of the claimant's age, education, or prior work experience. Id. at 691-92. The prevailing view, then, is that only slight abnormalities that minimally affect a claimant's ability to work can be considered non-severe. Higgs, 880 F.2d at 862; Farris v. Sec'y of Health Human Servs., 773 F.2d 85, 90 (6th Cir. 1985). Therefore, the application of the requirement to establish "severity" is quite "lenient," and generally it is "employed as an administrative convenience to screen out claims that are `totally groundless' solely from a medical standpoint." Higgs, 880 F.2d at 862-63.
Residual functional capacity, on the other hand, is an "assessment of [the claimant's] remaining capacity for work," once his limitations have been considered. 20 C.F.R. § 416.945(a). It is meant "to describe the claimant's residual abilities or what the claimant can do, not what maladies a claimant suffers from — though the maladies will certainly inform the ALJ's conclusion about the claimant's abilities." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002).
A claimant's severe impairment may or may not affect his or her functional capacity to do work. One does not necessarily establish the other. In this case, for instance, the plaintiff had some vision loss that, under the Secretary's definition, could be found as "severe," but the ALJ reasonably could have concluded that the correction of that vision to 20/25, see tr. at 124, did not limit the plaintiff's ability to perform light work. Likewise, the plaintiff suffered from bilateral carpal tunnel syndrome, but there is evidence that she underwent a right carpal tunnel release procedure in 1994 and the same operation of the left in 1998, both with good success, justifying the conclusion that no significant limitation resulted from that impairment as far as performing light work is concerned.
The Court finds no inconsistency in these determinations by the ALJ, nor are there any resulting conflicts with the Dictionary of Occupational Titles.
The plaintiff also complains that the ALJ did not explain his reasons for concluding that the plaintiff did not meet or equal Listings 1.05, 2.02 and 9.08. As the plaintiff notes, explication of the facts as applied to the regulations is "essential" to meaningful appellate review. Hurst v. Sec'y of Health Human Servs., 753 F.2d 517, 519 (6th Cir. 1985) (quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)). However, there is no requirement that the ALJ review each listing on the record and explain their inapplication. Moreover, the plaintiff does not argue that she meets or equals any of the listings. She merely criticizes the ALJ's analysis of them. The Court will not predicate a remand on an argument that the record contains no explanation of the facts in light of a regulation that no party contends is genuinely in issue.
Finally, the plaintiff contends that the hypothetical question posed to the vocational expert was incomplete because all of the plaintiff's limitations were not included. The Court finds, however, that the ALJ included all those limitations consistent with the RFC that he found. The rule that a hypothetical question must incorporate all of the claimant's physical and mental limitations does 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." Casey 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.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation is ADOPTED.
It is further ORDERED that the plaintiff's motion to remand [dkt #16] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #17] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.