UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION WENDY L. GALLIEN, Plaintiff, Case Number 00-10370-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 October 3, 2000 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. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner s decision and that the case be dismissed with prejudice. Magistrate Judge Binder filed a Report and Recommendation on April 19, 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, to which defendant responded, and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, the plaintiff s objections, and the Commissioner s response to those objections, and has made a de novo review of the administrative record in light of the parties submissions. The plaintiff s objections focus on the magistrate judge s failure to adequately address alleged defects in the Administrative Law Judge s (ALJ) hypothetical question poised to the vocational expert at the administrative hearing. Specifically, the plaintiff alleges that the functional limitations incorporated into the hypothetical question were not broad enough to reflect the plaintiff s actual condition because (1) the frequency of concentration deficits, which the plaintiff claims should be quantified in terms of a numerical percentage, was not consistent with allowing work over the period of an eight-hour day; (2) insufficient emphasis was placed on Dr. Henry Odunlami s findings contained in his March 18, 1998 report regarding the plaintiff s condition; and (3) neither the ALJ nor the magistrate judge properly accounted for the impact of side effects of the plaintiff s psychiatric medications. The plaintiff, who is now thirty-two years old, applied for disability insurance benefits on February 4, 1998. She previously worked as an assembly line worker, cashier and bagger at retail and supermarket stores, nurse s aid, and food preparation person. She alleged that the onset of her disability was January 20, 1998 and that she has not been engaged in substantial gainful activity since then. The plaintiff s claim for disability was not based on any exertional restrictions or physical impairments. Rather, the plaintiff has been diagnosed with bipolar and anxiety disorders, and she claims that these psychiatric ailments render her disabled within the meaning of the Social Security Act. -2-
The plaintiff s application was initially denied, and the denial was upheld on reconsideration. The plaintiff then appeared before ALJ William J. Musseman with her attorney on January 4, 2000 for an administrative hearing. ALJ Musseman filed a decision on March 8, 2000 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. 404.1520. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since January 20, 1998 (step one); the plaintiff suffered from several impairments that the ALJ found to be severe, including bipolar disorder and an anxiety disorder (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 unskilled to semiskilled and require medium to very heavy exertional effort (step four). In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform work in a low-stress environment with no production quotas, only minimal supervision, only occasional dealings with coworkers, no dealings with the general public, and performing only simple one- or two-step tasks that require no written instructions. The ALJ found that the plaintiff s residual functional capacity was not affected by any exertional limitations. Relying on the testimony of a vocational expert, the ALJ found that such jobs as assembler and inspector fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies. Based on that evidence, and using the framework of the Commissioner s Vocational Guideline 204.00, the ALJ concluded that the plaintiff was not disabled and denied benefits. -3-
The medical evidence in the case is summarized in adequate detail by the ALJ and the magistrate judge. The plaintiff indeed underwent mental health hospitalizations prior to the alleged onset date, including hospitalizations in September 1995 and January 1996. In addition, the medical records indicate that the plaintiff was admitted briefly for an emergency room visit in February 1998, and admitted to the hospital on another occasion in June 1998. She underwent outpatient treatment for her bipolar and anxiety disorders from February 1998 through January 1999. The principal treating psychiatrist in this case is Dr. Odunlami, although the plaintiff also underwent an evaluation at the request of the Disability Determination Service by psychologist Dr. George Pestrue. The findings of these medical providers are set forth in the magistrate judge s report. 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, -4-
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 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). -5-
To evaluate a claim of disability based on mental impairment, the Commissioner is required to utilize a standard technique at the administrative hearing level, in order to detect the need for additional evidence, focus on the functional consequences of the mental disorder, and marshal and present the facts. 20 C.F.R. 404.1520a(a). This procedure is meant to fulfill the statutory obligation established in 42 U.S.C. 421(h), which is intended to insure that a qualified mental health professional evaluates a mental impairment and any applicable residual functional capacity before a determination of disability is made. In addition, pursuant to the statute, the Commissioner has prescribed rules for evaluating mental impairments. See 20 C.F.R. 404.1520a. According to the prescribed procedure in effect at the time of the administrative hearing, the Commissioner first determines whether there is a medically determinable mental disorder specified in one of nine diagnostic categories. See 20 C.F.R. 404.1520a; 20 C.F.R. Pt. 404. Subpt. P, App. 1 12.00A. The clinical findings are referred to as the A criteria. Thereafter, the Commissioner measures the severity of a mental disorder in terms of functional restrictions, known as the B criteria, by determining the frequency and intensity of the deficits. According to 20 C.F.R. 404.1520a(c)(3), the B criteria require an evaluation in four areas with a relative rating for each area. Thus, the Commissioner must evaluate activities of daily living and social functioning and rate those on a five-point scale ranging through none, slight, moderate, marked and extreme. A third area concentration, persistence, or pace is rated on a five-point scale ranging through never, seldom, often, frequent, and constant. The fourth area deterioration or decompensation in work or work-like settings calls for a rating of never, once or twice, repeated (3 or more), and continual. See 20 C.F.R. 404.1520a(c)(4). If the mental impairment has been determined to be severe, see 20 C.F.R. 404.1520a(d)(1), the ALJ then determines whether the -6-
impairment meets one of the Commissioner s listings and at least two of the B criteria have been met. A claimant must be found to have conditions listed in the last point of each of the scales in at least two of the B criteria in order to establish a limitation which is incompatible with the ability to do any gainful activity. See 20 C.F.R. 404.1520a(c)(4). If the impairment is not disabling, but has been found to be severe, the ALJ must perform a residual functional capacity assessment to determine whether the claimant is able to perform some jobs in spite of the mental limitations. See 20 C.F.R. 404.1520a(d)(3). The ALJ in this case completed the PRTF by appropriately concluding that the plaintiff suffered from an affective disorder and an anxiety disorder under the A criteria. In evaluating the B, or functional criteria, the ALJ found that the plaintiff suffered from moderate restrictions of activities of daily living, moderate difficulties in maintaining social functioning, often encountered deficiencies of concentration, persistence or pace resulting in the failure to complete tasks in a timely manner at work, and experienced episodes of deterioration or decompensation at work once [or] twice. Tr. at 26-29. The plaintiff alleges that some of these findings were not supported by substantial evidence in the record, particularly focusing on the March 1998 report that disclosed psychiatric symptoms that were considerably more severe. Indeed, Dr. Odunlami s March 18, 1998 report characterizes the plaintiff as markedly limited in her ability to make simple work-related decisions, complete a normal work day without interruptions from psychological symptoms, and appropriately interact with the general public. Tr. at 235. However, as both the magistrate judge and the ALJ observed, the evaluation of the plaintiff by this same psychiatrist on other dates, including July 31, 1998, September 24, 1998, October 9, 1998, December 3, 1998, January 14, 1999, and -7-
July 5, 1999 characterize the plaintiff as continuing to do fine, stable, doing better, and continuing to do well. A review of the medical records suggests to the Court that the severity of the plaintiff s psychological conditions waxed and waned over the period under scrutiny. The ALJ s conclusion, however, that the plaintiff could perform work subject to the limitations contained in the hypothetical question was not an unreasonable one and is supported by substantial evidence in the record. This is particularly so when one recalls that the statutory definition of disability requires a condition to last for a continuous period of not less than twelve months. See 42 U.S.C. 423(d)(1)(A). The plaintiff also criticizes the hypothetical question posed to the vocational expert because she claims it did not completely account for her limitations on ability to concentrate. She points to the PRTF and suggests that the range of frequency of this deficiency in five categories from never to constant, with often being the third category, implies a linear range that can be arithmetically quantified. She argues that often implies deficiencies in concentration fifty percent of the time, or within a range of 37-1/2 % to 62-1/2 %. She then points to Chief Judge Lawrence Zatkoff s decision in Bankston v. Comm r of Soc. Sec., 127 F. Supp. 2d 820, 827 (E.D. Mich. 2000), to support her argument that the hypothetical question posed in this case was defective. In Bankston, the Court indeed attempted to quantify the term often, but reversed the ALJ s no-disability finding not because the hypothetical question failed to incorporate that concept, but rather because the claimant s attorney actually posed a question to the vocational expert that incorporated the notion that the deficit occurred more than fifty percent of the time and obtained a response that supported a disability finding. -8-
The record in this case contains no such evidence. Rather, the ALJ s formulation of residual functional capacity in constructing the hypothetical question included limitations of no dealing with the general public, no complex tasks,... defined as 1 and 2 step only[, no] written instructions, minimal supervision, no hourly production quotas and only minimal dealing with co-workers. Tr. at 312. It is reasonable to conclude, therefore, that the vocational expert actually took into account the limitations that the plaintiff is advocating in this Court. Moreover, it is apparent from the ALJ s decision that he did not believe that the plaintiff s deficiencies of concentration prevented her from attending to work for six hours of an eight-hour work day. 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 v. Comm r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). Finally, the plaintiff claims that the hypothetical question did not properly account for the side effects of the medication that she was taking. It is true that the plaintiff testified that some of the medication she was taking gave [her] the shakes. Tr. at 295. Some of the medical records suggests that the plaintiff had trouble functioning because she was heavily -9-
medicated, particularly in March 1998. However, reports from sessions with Dr. Odunlami in December 1998, January 1999, and July 1999 indicate that patient has no medication side effects, she denies any medication side effects, and she states that her medication is fine. Tr. at 264, 273, 281. The record in the case, therefore, supports the conclusion that medication side effects did not contribute to the plaintiff s disability, and the magistrate judge committed no error in failing to account for that factor. 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 #8] is DENIED. It is further ORDERED that the defendant s motion for summary judgment [dkt #11] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice. Dated: February 19, 2004 Copies sent to: Kenneth F. Laritz, Esquire Sheila H. Gaskell, Esquire Magistrate Judge Charles E. Binder /s/ DAVID M. LAWSON United States District Judge -10-