Opinion
CIVIL ACTION NO. 01-CV-73472-DT
May 23, 2002
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RECOMMENDATION: Plaintiff's Motion for Summary Judgment should be GRANTED and Defendant's Motion for Summary Judgment should be DENIED, as there was no substantial evidence on the record that Plaintiff could perform any substantial gainful activity,
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Plaintiff filed applications for Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits in June 1998, alleging that she bad been disabled and unable to work since June 19, 1998, at age 35, due to severe fibromyalgia, with symptoms of fatigue, muscle weakness in her arms, legs and hands, and pain in all of her extremities, Benefits were denied initially and upon reconsideration by the Social Security Administration. A requested novo hearing was held in March 2000, before Administrative Law Judge Alan R. Diodore, who subsequently found that the claimant was not entitled to disability benefits because she retained the ability to perform a restricted range of light work with a sit/stand option. The Appeals Council declined to review the ALJ's decision and Plaintiff commenced the instant action for judicial review of the denial of disability benefits. The parties have filed Motions for Summary Judgment and the issue for review is whether Defendant's denial of benefits was supported by substantial evidence on the record.
Plaintiff was 36 years old at the time of the administrative hearing, had three children, ages 3, 4, and 10, and was separated from her husband (TR 42). She had a high school education, was a certified nursing assistant, and had been employed as a home health/nurse's aide and in the restaurant business as a cook, waitress, and bartender in the relevant past (TR 38-42). The work as a nurse's aide involved caring for the sick and elderly and performing some house work, and required lifting up to 250 pounds and considerable standing and walking (TR 39). Plaintiff stated that she stopped working in June 1998 after experiencing muscle spasms on her way to see a patient (TR 50-51). She testified that she started slinking and crying and called her treating physician, who instructed her that she was to be completely off work (TR 51), The claimant complained of tremors in her hands and legs, severe daily headaches that sometimes caused her to be sick and required her to lay down for several hours, severe and constant pain in her neck, shoulders, lower back, hips and knees, and arthritis in her knees, with several surgeries in each knee (TR 4449). She also testified at the hearing that she did not sleep very well, had muscle spasms and numbness in her arms and legs, suffered extreme fatigue, experienced dizziness daily, was depressed, had difficulty concentrating, and was easily frustrated and upset (TR 49-50).
Plaintiff testified at the hearing that she was receiving $879 per month in long term disability benefits from her former employer (TR 44).
Plaintiff also claimed to suffer from bronchial asthma, urinary urgency, and episodes of diarrhea and constipation (TR 51, 184). However, she does not dispute the ALJ's finding that these impairments were not severe. Thus, the undersigned will only address her allegation that substantial evidence does not support the Law Judge's findings that her fibromyalgia and depression were not disabling, although the other conditions contribute to an overall assessment of her ability to work.
Plaintiff reported taking 800 milligrams of Motrin four times per day for pain relief, 200 milligrams Tylenol every two hours as needed for pain, and Vicodin as needed for more severe pain (TR 58, 154). She took Desipramine daily for her headaches, Zoloft for depression, and Ambien to help her sleep (TR 58, 154). She estimated at the hearing that she could stand for one to two hours, in intervals, and walk only 15 to 20 feet before her legs started slinking, but could not push, pull, move her feet up and down on controls, bend over and pick up an object, squat, crawl, or climb a ladder or stairs (TR 53-54, 57, 59). Despite these claimed impairments, Plaintiff was able to take care of her basic personal needs, help her children get ready for school, drive short distances, cook and shop with assistance, do light housework such as dusting and laundry with help and frequent rest periods, visit with family and friends, watch television, and read (TR 51, 57, 120-123, 132-135).
A Vocational Expert, Daniel O'Neill, classified Plaintiff's past employment as a home health aide as semi-skilled, heavy work, and the restaurant employment as semi-skilled, medium work, and stated that the claimant did not have any skills transferable to light or sedentary work (TR 61). The VE testified that Plaintiff would be precluded from all work if her testimony were credible and correct to the degree she stated it, because the tremors and muscle spasms in her hands and arms would rule out meeting the industrial standards for work in the sedentary and light categories, and the need to take a two to three hour nap a day would be prohibitive of regular employment, as would her claimed pain and lack of concentration (TR 61-62). The VE further testified that severe daily headaches accompanied by dizzy spells and an inability to function at any meaningful level would rule out competitive employment (TR 63). However, if the claimant were capable of a restricted range of light work, the VE testified that there were numerous unskilled jobs that she still could perform, including cashiering, assembly work and non-construction labor (essentially bench work) (TR 62). These unskilled, light positions were simple and routine, allowed a sit/stand option, required no climbing or work at unprotected heights, and avoided excessive atmospheric pollutants (TR 62).
The medical evidence revealed that Plaintiff complained to her treating physician, Dr. William Kerr, of chronic back and neck pain, dizziness, frequent headaches and depression, in December 1997 (TR 248), and of fatigue with increased muscle weakness and tremors for the past three months, in January 1998 (TR 238). Plaintiff sought treatment for recurrent fatigue, muscle weakness, arm and leg tremors, dizziness with constant vertigo, and constant headaches again in March 1998 (TR 236). A neurological examination that same month by Dr. Steven Huder revealed normal muscle strength, tone and bulk, a very rapid fine tremor of her upper extremities, a slightly antalgic gait, good ranges of motion, and tender points in her paraspinal and trapezius muscles (TR 166). Medical tests, including an MRI, an EMG/Nerve Conduction Study, and a Brainstem Auditory Evoked Response test were all negative or within normal limits, but her sedimentation rate was elevated at 62 (with a normal range of 0-20) (TR 170-175, 179). Dr. Huder noted that the negative tests did not exclude the diagnosis of fibromyalgia, which was still very likely "given this patient's clinical picture and mildly elevated sedimentation rate with very tender muscles" (TR 170).
An antalgic gait is a characteristic gait resulting from pain on weightbearing in which the stance phase of the gait is shortened on the affected side, Stedman's Medical Dictionary, 698 (26th ed. 1995).
The claimant continued to complain to Dr. Kerr of fatigue, aching all over, falling asleep while driving, facial numbness, and shaky legs in April and June 1998, and he diagnosed her with severe fibromyalgia (TR 219-221). The doctor initially stated that the Plaintiff was disabled and unable to work because of severe fibromyalgia from June 11 to June 22, 1998 (TR 230), and he subsequently extended her leave another four weeks, to July 27, 1998, because she remained disabled due to severe fibromyalgia which had worsened over the past few months, frequent severe muscle pains and spasms in her back and legs, extreme weakness, and moderate bronchial asthma (TR 218, 227, 229). Dr. Kerr helped fill out a Handicapper Parking Permit Application for the claimant in June 1998 in which he stated that she was unable to walk more than 200 feet without having to stop and rest due to severe fibromyalgia with muscle spasms and severe pain in her leg muscles and back, and that he considered this to be a permanent condition (TR 237).
Dr. Kerr noted that Plaintiff reported feeling a little better in July, August and September 1998, but that she still complained of aching and stiffness and was "obviously in discomfort sitting in [a] chair" in August 1998 (TR 216-218). Dr. Huder conducted a follow-up neurological examination of rho claimant in October 1998 (TR 195-196). Plaintiff reported experiencing dizzy spells, chronic fatigue, episodic vertigo, constant headaches, constant pain concentrated in her neck, back and legs, crying spells and depression (TR 195). Dr. Ruder noted that the Plaintiff had a depressed affect, antalgie gait, and multiple very tender muscle trigger points in her back, neck, legs and arms diffusely, and diagnosed her with fibromyalgia, depression, chronic daily headaches, chronic vertigo and syncope (TR 195).
Dr. Bradley Haas examined the claimant at the request of the Commissioner in October 1998 (TR 184-187). She complained of a five-year history of shortness of breath secondary to asthma and a ten-year history of multiple aches and pains (TR 184). Plaintiff reported that she could sit for 30 minutes, stand and walk for 15 minutes, and occasionally lift up to 20 pounds (TR 184). Dr. Haas observed that the claimant was anxious, tearful, tremulous, and at times histrionic (TR 185). He reported that Plaintiff had a normal range of motion in all joints, had full use of her hands, was able to pick up a coin, open a door and tie shoelaces, had negative straight leg raising, a normal gait, had no difficulty getting on or off the examining table, and had mild difficulty heel and toe walking and squatting (TR 185-187). Dr. Hans concluded that the Plaintiff had mild fibromyalgia trigger point tenderness with no evidence of radiculopathy, theorized that her respiratory medicines might be contributing to her tremor, and observed that her tremor markedly worsened as she became more anxious (TR 187).
Dr. James MacKenzie saw the claimant in November 1998, at the request of Dr. Huder, for a rehabilitation evaluation (TR 189-191), Plaintiff reported chronic pain, episodic tremors, a history of chronic dizzy spells, chronic daily headaches, and chronic fatigue (TR 189). She exhibited a moderate degree of pain behavior throughout the examination, no gross motor deficits in her extremities, a goad passive range of motion in all major joints, as well as reasonably full and pain-free cervical range of motion, negative straight leg raises and an essentially normal gait (TR 190). The doctor stated that he could not get a feel for any discrete trigger points because the claimant responded affirmatively to pressure in almost all of the areas in the upper and lower extremities (TR 190). He opined that she suffered from a complex chronic pain syndrome likely associated with a major somatization disorder and/or a major functional Component, probable depression, and a history of asthma (TR 191). Dr. MacKenzie recommended referral to a multidisciplinary pain clinic with a strong psychophysiological/psychiatric intervention or to community mental health (TR 191).
Plaintiff underwent arthroscopic knee surgery in November 1998 for chondromalacia of the patella in her right knee (TR 197-201). She recovered well, treated her pain with Motrin, and was instructed in December 1998 to resume as much normal activity as possible (TR 263-264).
Douglas Halgren, Ph.D., performed a consultative psychological examination of the claimant in December 1998 (TR 202-211). He observed that the Plaintiff was oriented, exhibited fair insight, had low self-esteem, a dysthymic mood, a decreased level of activity, and that she seemed motivated (TR 206-207). She reported difficulty concentrating and recalling information and that she had thoughts of suicide (TR 206-208), Dr. Halgren did not consider her to be exaggerating or minimizing her symptoms to a significant degree (TR 207). Plaintiff was able to recall five digits repeated forward, three backward, and only one object out of three after three minutes (TR 208). Dr. Halgren diagnosed the claimant with major depressive disorder, mild, and assigned her a current GAF score of 65, representing only mild symptoms (TR 211).
A score of 61 to 70 on the Global Assessment of Functioning (GAF) scale represents "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, [with] some meaningful interpersonal relationships," Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994).
Dr. Kerr examined the claimant again in December 1998 (TR 212-213). She reported that she was unable to stand for longer than 5 or 10 minutes at a time, walk more than 200 feet, or sit for longer than 45 to 60 minutes at a time (TR 213). He observed that she was in no apparent distress sitting in a chair, that her ranges of motion were within normal limits, and that her primary complaint was muscle pain and fatigue after minor exertion (TR 213). He diagnosed her with chronic pain syndrome associated with muscle pain and fatigue aggravated by minor exertion, depression, anxiety, and well-controlled bronchial asthma (TR 212).
A medical examiner completed a Psychiatric Review Technique form and Mental Residual Functional Capacity Assessment of the Plaintiff in December 1998 (TR 250-262). He opined that the claimant was moderately limited in ten different areas, would not do well in demanding work settings due to those moderate limitations in pace and persistence, and that she retained the capacity to perform simple tasks on a sustained basis (TR 259-261).
Plaintiff began treating with Dr. N. Craig Boss at the East Jordan Family Health Center in January 1999 (TR 266). She reported a history of fibromyalgia and depression, with increased fatigue and pain in her neck, back and legs (TR 266). The doctor observed 3+ trigger points, good free range of motion in her extremities, and good strength in her lower extremities (TR 266). Dr. floss continued to treat the claimant, and noted in an April 1999 examination that she complained of headaches, neck and back pain, and left and right leg symptoms, and that she reported that she had not used any medications for the past month, with no significant worsening or improvement of her condition (TR 288). Tender points were elicited in the upper and mid back, which Plaintiff rated as 2-3 on a 0-3 scale (TR 288). Dr. Boss diagnosed the claimant with fibromyalgia with myofascial pain, and possible underlying depression and anxiety, especially with stressful social situations (TR 288). Plaintiff reported to Dr. Boss in May 1999 that she had attempted to return to work at a job in a factory for a short period, but had to quit because of increased pain, as well as tremors and swelling in her hands (TR 288).
The Law Judge incorrectly stated that Plaintiff rated her pain during this examination as 2-3 on a 10 point scale, instead of a 3 point scale (TR 20).
Dr. Boss referred Plaintiff to the Munson Medical Center Pain Clinic in July 1999 (TR 279). Dr. Sean Rivard examined the claimant and noted that she was alert and oriented, had a non-antalgic gait, was able to heel and toe walk, and that all 18 trigger points for fibromyalgia were mildly to markedly positive (TR 279). Plaintiff's range of motion was decreased, secondary, he opined, to guarding (TR 280), Dr. Rivard diagnosed the claimant with fibrornyalgia, non-restorative sleep disturbance, and fatigue (TR 280). He noted in subsequent examinations that Plaintiff complained of pain ranging from six to eight on a 10 point scale, that extension of her neck caused dizziness, she had trouble sleeping, and that she walked short distances, with a cane (TR 281-285). Dr. Rivard also noted that Plaintiff had significant trembling in her extremities, especially with exertion (TR 281, 284).
Vincent Cornellier, Ph.D., a psychologist at the Munson Pain Clinic, also evaluated the claimant in July 1999 (TR 277-278). Plaintiff characterized her pain as an 8 on a 10 point scale, and related that attending school "was somewhat exciting to her and distracting" (TR 277) Dr. Cornellier reported that Plaintiff suffered from major depression, both endogenously and reactively, and was "floundering with regard to her fibrornyalgia" (TR 277-278) Plaintiff was also evaluated for physical therapy in July 1999 (TR 290-291). The therapist noted marked muscle tightness, to the point of spasm, in the claimant's upper extremities and back, decreased ranges of motion, and poor muscle bulk and definition in her shoulders, back, lumbar and hip areas (TR 290). There are no subsequent records of follow-up therapy sessions in the record.
Finally, Dr. Boss completed a questionnaire in February 2000, prepared by Plaintiff's attorney (TR 293). The doctor responded affirmatively to the questions of whether continuous, distracting pain, fatigue and weakness prevented the claimant from giving attention to job duties in a two-hour block of time and from maintaining a regular work schedule (TR 293). He also answered that Plaintiff was prevented from performing even a low-stress job for 40 hours a week because of continuous, distracting pain, fatigue and weakness that aggravated her stress and mental problems (TR 293). Dr. Boss responded that the claimant needed to take about a one hour nap or rest period in an eight-hour day (TR 293). He then noted that these answers were based on Plaintiff's subjective history and highly recommended contacting the pain clinic for a specialty summary (TR 293).
Plaintiff submitted additional medical evidence to the Appeals Council following the hearing (TR 315-327). This evidence consisted of a therapist's report from Antrim Kalkaska Community Mental Health dated June 21, 2001 (TR 315-319), over one year after the ALJ rendered his decision in this Case, and an article on fibromyalgia (TR 320-327). The Appeals Council considered this new evidence, but still denied Plaintiff's request for review and stated that the ALJ's decision stood as the final decision of the Commissioner (TR 6). Therefore, this additional evidence can only be considered by the undersigned if it is "now" and "material" and the claimant has demonstrated "good cause for not having incorporated the new evidence into the administrative record," see Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir, 1993), which Plaintiff has failed to do in this case. See Casey v. Secretary, 987 F.2d 1230, 1233 (6th Cir. 1993).
LAW JUDGE'S DETERMINATION
The Law Judge found that Plaintiff was severely impaired as a result of fibrornyalgia and depression, but that these impairments were not severe enough, alone or in combination, to meet or equal the Listing of Impairments. He also found that Plaintiff's complaints of severe and chronic fatigue and pain were not fully credible. The ALJ recognized that the claimant's impairments precluded her from performing complex jobs requiring the lifting of more than 20 pounds, sitting, standing or walking for prolonged periods, any climbing or work at unprotected heights, or exposure to excessive atmospheric pollutants, but found that she still retained the residual functional capacity to perform a reduced range of light work, within those limitations identified by the Vocational Expert.STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioners decisions. Judicial review off those decisions is limited to determining whether her findings are supported by substantial evidence and whether she employed the proper legal standards. Richardson v. Porales, 402 U.S, 389, 401 (1971); Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a preponderance; it is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)); Walters, 127 F.3d at 528. This court also does not try cases do novo, or resolve conflicts in the evidence, or decide questions of credibility. See Brainard v. Secretary, 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, the court must examine the administrative record as a whole, Kirk v. Secretary, 667 F.2d 524, 536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner's decision is supported by substantial evidence, it must be affirmed, even if the reviewing court would decide the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial evidence also supports the opposite conclusion. Her v. Commissioner, 203 P.36 388, 389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the substantial evidence standard "presupposes that there is a zone of choice within which decision makers can go either way, without interference from the courts").
If the Commissioner's decision is not supported by substantial evidence, the court can reverse the decision and award benefits, but only if (1) there is an adequate record, Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985); (2) there are no unresolved, essential factual issues, Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994); and (3) the record "compels" the conclusion that a plaintiff has established legal entitlements to benefits, INS v. Elias-Zacharias, 502 U.S. 478, 481 n. 2 (1992) (emphasis in original). If these conditions are not met, the court may not award benefits and must remand the case under sentence four of 42 U.S.C. § 405(g) for additional fact finding.
Sentence four of 42 U.S.C. § 405(g) states:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing.
DISCUSSION AND ANALYSIS
A plaintiff seeking Social Security disability benefits has the ultimate burden of establishing an entitlement to those benefits by proving the existence of a disability. Key v, Callahan, 109 F.3d 270, 274 (6th Cir. 1997). The Plaintiff's Social Security disability determination was made in accordance with a five step sequential analysis. In the first four steps, Plaintiff must show that:
(1) she is not presently engaged in substantial gainful employment; and
(2) she suffers from a severe impairment; and
(3) the impairment meets or is medically equal to a "listed impairment;" or
(4) she does not have the residual functional capacity (RFC) to perform her relevant past work,See 20 C.F.R. § 404.1520(a)-(e). If Plaintiff's impairments prevent her from doing her past work, the Commissioner would consider her RFC, age, education and past work experience to determine if she could perform other work. If she could not, she would be deemed disabled. Id. § 404.1520(f). The Commissioner has the burden of proof only on "the fifth step, proving that there is work available in the economy that the claimant can perform." Her, 203 F.3d at 391. And, to meet this burden, the Commissioner must make a finding "supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." Varle v. Secretary, 820 F.2d 777, 779 (6th Cir. 1987). This "substantial evidence" may be in the form of vocational expert testimony in response to a hypothetical question, "but only `if the question accurately portrays (the claimant's) individual physical and mental impairments.'" Id. (citations omitted).
The undersigned is persuaded that while Plaintiff's depression would not preclude her from performing a limited range of light work, substantial evidence does not exist on the record that Plaintiff had the REC to perform substantial gainful activity. When determining the claimant's RFC, the ALJ is required to consider "all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence, such as an individual's own statement of what he or she is able or unable to do . . . ." SSR 96-Sp, Medical Source Opinions on Issues Reserved to the Commissioner, 61 Fed. Reg. 34471, 34473 (1996). The VE expressly testified that Plaintiff would be precluded from all work if her testimony were credible and correct to the degree she stated, However, because the ALJ discounted the claimant's credibility and the medical evidence in the record, he did not rely on this portion of the VE's testimony in determining the claimant's residual functional capacity.
Although Plaintiff complained of and was diagnosed with depression, substantial evidence in the record supports the Law Judge's finding that this impairment was not disabling, as the medical records consistently revealed that this depression was "mild" and alone would not prevent her from performing simple, unskilled work (TR 202-211, 259-261, 277-278).
Social Security Rulings as well as the Commissioner's regulations are generally treated by the courts as binding on the Commissioner, Haick v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994); Carter v. Sullivan, 909 F.2d 1201, 1202 (8th Cir. 1990).
Careful consideration of a claimant's credibility regarding her pain allegations is particularly crucial when analyzing a claim for disability benefits based on fibromyalgia. As this Court previously explained, the disability determination of fibromyalgia claimants is necessarily more complicated "because normal clinical test results do not necessarily suggest the absence of a disability." Runyon v. Apfel, 100 F. Supp.2d 447, 450 (E.D. Mich. 1999). As the Sixth Circuit noted:
[F]ibrositis [fibromyalgia] causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances. In stark contrast to the unremitting pain of which fibrositis patients complain, physical examinations will usually yield normal results a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.
Preston v. Secretary, 854 F.2d 815, 817-18 (6th Cir. 1988).
The Seventh Circuit further explained that,
[Fibromyalgia's] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996).
While the Law Judge agrees that the claimant suffers from the severe impairment of fibromyalgia, the issue is whether the consequences or symptoms therefrom render her totally disabled from working.
The record before the Administrative Law Judge consisted of Plaintiff's testimony and the reports of several doctors who examined and treated her. The ALJ noted that there was no concrete" evidence in the record supporting the claimant's allegations that she suffered dizziness, headaches, tremors and bowel/bladder problems to the degree she alleged, the objective medical tests were normal, and there was no objective evidence of significant muscle weakness, spasm, or atrophy, decreased range of motion in her back or joints, or evidence of any motor, reflex, sensory, or neurological deficit (TR 19-20). As noted above, the presence of predominantly normal objective medical findings in fibromyalgia cases does not necessarily suggest the absence of a disability. See Preston, 854 F.2d 817-818; Runyon, 100 F. Supp, 2d at 450 ("[T]he normal objective medical findings noted by physicians are inherently less reliable given the nature of fibromyalgia."). Rather, as this Court has previously explained,
[T]he weight of the opinion must depend primarily on the factors provided in 20 C.F.R. § 404.1527, including (1) examining relationship; (2) treatment relationship, (3) supportability; (4) consistency with the record as a whole; and (5) specialization.
Runyon, 100 F. Supp.2d at 450.
According to Social Security Ruling 96-7p, whenever the claimant's testimony about pain is not substantiated by objective medical evidence,
the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record . . . includ[ing] . . . the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.
SSR 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Reg. 34483, 34485 (1996). Subjective complaints by a claimant may support a finding of disability where objective medical evidence confirms the severity of the alleged pain or where an objectively determined medical condition of such severity (such as fibromyalgia) can reasonably be expected to give rise to that pain. See Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989). The courts do not require that the medical evidence fully corroborate the severity of the symptoms. See Beavers v. Secretary, 577 F.2d 383, 386 (6th Cir. 1978) (reasoning that, if such a requirement were imposed, "there would be no occasion for subjective, personal testimony in a disability hearing"); see also 20 C.F.R. § 404.1529(c)(2).
Although it is for the Secretary to resolve conflicts in the evidence and to decide questions of credibility, Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987), a finding that a claimant is not credible must be supported by substantial evidence in the same manner as any other ultimate factual determination. See Harris v. Heckler, 756 F.2d 431 (6th Cir. 1985) (rejecting the ALJ's "unexplained credibility finding" because the evidence of record "clearly corroborate[d]" plaintiffs assertions of pain); see also Brock v. Secretary, 791 F.2d 112, 114 (8th Cir. 1986) ("[B]efore an ALJ may reject a claimant's subjective complaints of pain, the Aid must make express credibility determinations and set forth the inconsistencies in the record that lead the ALJ to reject the claimant's complaints of pain.").
Plaintiff has consistently complained to her treating and examining physicians since December 1997 of chronic pain, muscle weakness, dizziness, headaches, fatigue, and tremors (TR 168, 184, 189, 195, 212-213, 216-221, 238, 248, 266, 281-285, 288), and these doctors have opined that her complaints and her elevated sedimentation rate were consistent with a diagnosis of fibromyalgia (TR 170, 187, 195, 280, 288). While the objective medical tests were essentially normal, other than the elevated sedimentation rate, the doctors did note trembling, at times significant, in the claimant's extremities (TR 166, 187, 281, 284), and that she had multiple very tender muscle trigger points (TR 166, 187, 195, 266, 279, 288), and prescribed various medications to treat her symptoms (TR 154). And, contrary to the Law Judge's statement that none of the treating or examining physicians had issued restrictions or imposed limitations upon Plaintiff's ability to perform either the physical or mental demands of work (TR 19), her treating physician, Dr. Kerr, did find her disabled and restrict her from working in June 1998 (TR 218, 227, 229-230), and there are no records that she was ever released to return to work. Further, no treating or examining physician has opined that she can work, or in what capacity.
Further, the claimant has a long and steady work history (TR 41-42, 87-917 96, 158), there is no evidence that she was malingering, and the consulting psychologist opined that the claimant appeared motivated and did not appear to be exaggerating or minimizing her symptoms (TR 206-207). In fact, the claimant attempted to return to work in May 1999, but quit after 6 days because of severe pain and weakness, and tremors and swelling in her hands (TR 142-143, 288).
Moreover, Plaintiff's daily activities do not undermine her complaints or the physician's conclusions. Plaintiff consistently stated that she drove only short distances, cooked and shopped for short periods of time, with assistance, and could only do minimal housework, with frequent rest periods (TR 51-53, 120-123, 132-135). This testimony was corroborated by Plaintiff's mother and friends (TR 114-119, 136-141, 161-164). These minimal activities do not represent a "significant amount of daily activities," as the Law Judge suggests (TR 21), and do not support a finding that she could perform light work, or any work, on a sustained basis.
In sum, no treating or examining physician expressed an opinion regarding Plaintiff's ability to work, other than her treating physician in June 1998 who opined that she was disabled and could not work. Also, there is nothing in the medical record showing any inconsistencies or other reasons to disbelieve Plaintiff's reports of her symptoms or that any treating or examining physician questioned the those symptoms. And, the Vocational Expert testified that Plaintiff would be precluded from all work if her testimony were credible and correct to the degree she stated it. The record evidence thus substantiates that Plaintiff was unable to work since at least June 1998. Therefore, having examined the record as a whole, the undersigned finds that the ALJ's decision is not supported by substantial evidence and must be reversed.
Having found that the decision of the ALJ must be reversed, the issue then becomes whether this matter should be remanded to the agency for further consideration, or remanded for an award of benefits. The Court of Appeals has held:
If a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits only if all essential factual issues have been resolved and the record adequately establishes a plaintiffs entitlement to benefits.Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994); see also Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985) (noting that the Secretary's decision can be reversed and benefits awarded if "the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking"). Thus, the issue is whether the record on the question of the claimant's limitations is adequate, and, if it is, whether the evidence of disability is overwhelming, or proof of disability is strong and contrary evidence is lacking.
As discussed above, the medical and vocational evidence clearly established that Plaintiff did not have the RFC to perform either her past relevant work or any other work in the national economy. There is no need for a remand to take additional evidence, which would only delay the receipt of benefits to which Plaintiff is clearly entitled. Accordingly, it is recommended that Plaintiff's Motion for Summary Judgment should be granted, that of Defendant denied, and the instant case remanded to the Commissioner for a computation and award of benefits.
Either party to this action may object to and seek review of this Report and Recommendation, but must act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity will not preserve all objections that parry might have to this Report and Recommendation. Willis v. Secretary, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern District of Michigan, a copy of any objection must be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.