UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. Plaintiff, Case Number BC v. Honorable David M.

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION SANDRA M. FORD, Plaintiff, Case Number BC v. Honorable David M. Lawson COMMISSIONER OF SOCIAL SECURITY, Defendant. / OPINION AND ORDER ADOPTING MAGISTRATE JUDGE S REPORT AND RECOMMENDATION, DENYING PLAINTIFF S MOTION FOR SUMMARY JUDGMENT, AND GRANTING DEFENDANT S MOTION FOR SUMMARY JUDGMENT TO AFFIRM THE DECISION OF THE COMMISSIONER The plaintiff filed the present action on December 21, 2000 seeking review of the Commissioner s decision denying the plaintiff s 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). Thereafter, the plaintiff filed a motion for summary judgment seeking reversal of the decision of the Administrative Law Judge and an award of benefits. The defendant filed a motion for summary judgment requesting affirmance of the Administrative Law Judge s decision. Magistrate Judge Binder filed a Report and Recommendation on September 5, 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.

2 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 objection challenges the magistrate judge s conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ). The plaintiff testified at her administrative hearing that she suffered from pain and fatigue that prevented her from working a full, eight-hour day. The ALJ found that those complaints were not fully credible and concluded that the plaintiff retained the capacity to perform some sedentary work. The plaintiff concedes that the issue in this case is the credibility of the plaintiff. Pl. s Obj. to R&R at 2. Citing Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994), the plaintiff contends that the ALJ failed to apply the sevenfactor test discussed in that case for evaluating the credibility of claimants who complain of disabling pain. The plaintiff, who is now forty-six years old, applied for disability insurance and supplemental security income benefits on July 28, She previously worked as the manager of a gas station, a supervisor at an adult foster care facility, and a hardware store manager. She alleged that the onset of her disability was April 26, 1997 and that she has not been engaged in substantial gainful activity since then. The plaintiff s claim for disability was based on a history of seizure disorder (epilepsy), depression, and muscle and joint pain attributable to arthritis and possible Addison s disease or, alternatively, Systemic Lupus Erythematosis (SLE). Her application was initially denied, and the denial was upheld on reconsideration. The plaintiff then appeared before ALJ John A. Ransom on December 16, 1998, when the plaintiff was forty-one years old. ALJ Ransom filed a decision on February 24, 1999 denying benefits because he found that the plaintiff was not disabled within the -2-

3 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 , The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since April 28, 1997 (step one); the plaintiff suffered from a major or minor seizure disorder, which the ALJ characterized as epilepsy, a depressive disorder, and arthritis with possible Addison s disease or SLE, all impairments that the ALJ found to be severe (step two); none of these impairments by themselves or in combination met or equaled a listing in the regulations (step three); and the plaintiff could not perform her previous work, which the ALJ found to be semi-skilled and to require medium to very heavy exertional effort (step four). In applying the fifth step, the ALJ concluded that the plaintiff s residual functional capacity was limited to performing a restricted range of sedentary work. Those limitations included work with no unprotected heights or working around moving machinery, controlled clean air environment, no temperature extremes, and involving simple repetitive work. Relying on the testimony of a vocational expert, the ALJ found that such jobs as assembler, inspector, packager/sorter, clerk, and security guard monitor fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies. Observing that the plaintiff was forty-one years old at the time and had a high school education, and considering her semi-skilled work experience with no transferrable skills, the ALJ, using the Commissioner s medical-vocational guidelines as a framework, specifically Rule , concluded the plaintiff was not disabled within the meaning of the Social Security Act. The medical evidence in this case is summarized in adequate detail by the ALJ and the magistrate judge. Prior to April 1997, the plaintiff treated with Dr. Laurey Hanselman, a -3-

4 family physician, for complaints that included muscle pain, fatigue, rashes, and sleep disturbances. Dr. Hanselman referred the plaintiff to Dr. Errol H. Rushovich, an endocrinologist, in July Dr. Rushovich initially suspected Addison s disease because of the plaintiff s family history of that ailment, but eventually ruled it out. The plaintiff continued to treat with other specialists referred by her primary care physicians and followed up with Drs. Ruchovich and Hanselman through 1996 and into She was prescribed a variety of medications summarized by the magistrate judge, and she variously reported improvement in her symptoms. However, the medical records from the Northern Michigan Health Services indicate increasing complaints of fatigue through March 1997, and an entry from April 30, 1997, four days after the alleged disability onset date, indicates that the plaintiff had been hospitalized in Ann Arbor for Addison s disease and hypokalemia. Approximately two weeks after the hospitalization, Dr. Hanselman from Northern Michigan Health Services reports on May 12, 1997 that the patient [s]tate[s] overall she is feeling slightly better every day and her energy level is improving. She continues to be under increased stress and discussed the importance of stress management. Tr. at 268. Dr Hanselman released the plaintiff to return to work on June 1, 1997 (restricted to a forty-hour work week) but on June 1 the plaintiff was admitted to North Mercy Hospital because of a seizure. The plaintiff was discharged the following day with medication. It does not appear that the seizures recurred. Medical records from August 1997 indicate that the plaintiff s Addison s disease was improving and overall she is feeling better. Tr. at In September 1997, the plaintiff underwent a physical examination at Northern Michigan Health Services and the records -4-

5 document complaints of a rash that apparently started when she was using a tanning booth. Tr. at 254. She also complained of sinus and ear pain. A physical examination confirmed the rash but otherwise was unremarkable. The plaintiff was counseled regarding the use of her medication. A January 1998 consultative examination by Dr. Michael J. Miller documented complaints of weight gain, forgetfulness, and fatigue. She was diagnosed with an autoimmune deficiency syndrome, a history of seizure disorder, depression, and obesity. The plaintiff also treated with a psychologist for depression upon the referral of Dr. Hanselman. In September 1997, the plaintiff saw psychologist Rebekah Bond. That relationship terminated in October 1997 when Dr. Bond apparently refused the plaintiff s request for narcotic medications because they were contraindicated for patients with depression, which Dr. Bond diagnosed. In February 1998, Dr. Margaret Cappone conducted a consultative examination and diagnosed a depressive disorder. At the administrative hearing, the plaintiff described her complaints of fatigue and joint swelling. She stated that she took naps for several hours at a time each day, but acknowledged that none of her doctors had placed her on any restrictions concerning her activities, and she admitted that she had no adverse side effects from her medication. Her activities of daily living included grocery shopping, vacuuming, doing housework, crocheting, watching television, and preparing meals with her husband. She said that she visited friends once a week and read. Her daily activity log recited that she walked one quarter mile per day, she could perform daily activities as long as she could sit, she could stand for ten minutes at a time, and she could lift and carry up to twenty pounds. She also noted that standing and walking caused her pain on a daily basis. -5-

6 As noted above, the ALJ concluded the plaintiff could perform a restricted range of sedentary work. In reaching that conclusion, the ALJ necessarily rejected the plaintiff s testimony that her pain and fatigue required her to nap daily for at least six to seven hours. In finding that testimony not fully credible, the ALJ referred to the plaintiff s activities of daily living which included her attending to her personal needs, doing minimal housework, shopping, crocheting, reading, and watching television; the fact that Dr. Rushovich was not able to pinpoint the nature of the plaintiff s problems; and the fact that the plaintiff s hypothyroidism and epilepsy appear to be controlled by medication. The ALJ also observed that no definitive diagnosis was made for the plaintiff s apparent joint disease. The ALJ also observed that there was no significant limitation in the plaintiff s social functioning. It is a fundamental principle that the plaintiff bears the burden of proving entitlement to benefits under Title II and Title XVI of the Social Security Act, which means that the plaintiff must establish that she 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), 1382c(a)(3)(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), 1382c(a)(3)(B). The concept of disability, then, relates to functional limitations. Although these -6-

7 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). 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). In her objections, the plaintiff seems to suggest that the Court of Appeals in Felisky required administrative law judges to specifically address all of the factors for the evaluation of complaints of pain as set forth in 20 C.F.R This Court does not read Felisky to impose such a requirement, however. The Court of Appeals specifically endorsed the iteration of the pain evaluation formula set forth in Duncan, 801 F.2d at 853, as the basic standard in a more succinct form. Felisky, 35 F.3d at

8 The plaintiff here criticizes the ALJ for not specifically addressing factors such as the location, frequency, and intensity of pain; the precipitating and aggravating factors; the side effects of medications; and treatment other than medications for pain. However, the plaintiff points to no evidence in the record that refers to those factors and is supportive of a conclusion that the plaintiff s pain is disabling and that her complaints described at the administrative hearing were fully credible. It is, after all, the plaintiff who carries the burden of proof of disability. Moreover, the Court finds that the ALJ s reliance on the plaintiff s description of her activities of daily living and the amorphous and evolving diagnosis of her suspected ailments by her physicians is reasonable and constitutes substantial evidence to support the ALJ s conclusions. This finding is fortified by the absence of any opinion of any physician in the record that the plaintiff was restricted from employment in any fashion, save for Dr. Hanselman s limitation in June 1997 of the plaintiff to a forty-hour work week. The Court finds that the ALJ s determination of the plaintiff s residual functional capacity, which was incorporated into the hypothetical questions posed to the vocational expert, is supported by the administrative record. 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 -8-

9 claimant s testimony to be inaccurate. Jones v. Comm r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). 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 #12] is DENIED. It is further ORDERED that the defendant s motion for summary judgment [dkt #15] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice. Dated: February 25, 2004 Copies sent to: William D. White, Esquire William L. Woodard, Esquire Magistrate Judge Charles E. Binder /s/ DAVID M. LAWSON United States District Judge -9-