Opinion
Case number 00-72484
June 27, 2001
ORDER
This action concerns an application by the Plaintiff Doris J. Moore, for an award of disability insurance benefits from the Social Security Administration pursuant to Title II of the Social Security Act ("the Act"). At issue are the motions for summary judgment that have been filed by Moore and the Defendant, Commissioner of Social Security ("Commissioner"). For the reasons that have been set forth below, the Court will (1) grant the Commissioner's request for dispositive relief and (2) deny Moore's motion for summary judgment.
I.
On September 12, 1996, Moore submitted a request for disability benefits with the Social Security Administration. In her application, Moore claimed to have been disabled as a result of pelvic and abdominal pain, endometriosis, chest pain and shortness of breath. Moore's petition was initially rejected by the Commissioner and subsequently denied upon her request for reconsideration. Following the administrative denial of her claim for disability benefits, Moore sought, and received, a hearing before an administrative law judge on July 8, 1998. On August 20, 1998, Administrative Law Judge John M. Hammerly issued a written decision, in which he determined that Moore was not disabled within the meaning of the Act. On March 31, 2000, the Appeals Council declined Moore's request for an administrative review of the Administrative Law Judge's decision.
After exhausting her administrative remedies, Moore, proceeding without the benefit of counsel, filed a Complaint in this Court on June 1, 2000, in which she asked that the Commissioner's determination be set aside. Shortly thereafter, both parties filed motions for summary judgment (to wit, Commissioner on November 15, 2000 and Moore on November 22, 2000). On January 31, 2001, Magistrate Judge Donald A. Scheer filed a Report pursuant to 28 U.S.C. § 636 (b)(1)(A), in which he recommended that this Court grant the Commissioner's motion for a summary judgment. On February 9, 2000, Moore filed her objections to his Report, contending that she had submitted a sufficiency of substantial evidence upon which the Court could reasonably conclude that she was disabled and, thus, entitled to receive disability insurance benefits.
II.
In her objections, Moore contends that she submitted "more than enough sufficient evidence in [her] claim" during the administrative hearing on July 8, 1998. (Pl's Objections at 1). In support of this contention, Moore maintains that Administrative Law Judge Hammerly failed to afford the appropriate significance to the testimony of the vocational expert, Richard Szydlowski. Id.Additionally, she asserts that the Administrative Law Judge did not properly consider the medical testimony in the record regarding her pelvic adhesions. Id.Finally, Moore avers that Administrative Law Judge Hammerly erroneously concluded that her lung disease would not exceed a period of twelve (12) months. Id.
III.
Federal Rule of Civil Procedure 72(b) requires a district judge to "make a de novo determination upon the record . . . of any portion of the magistrate judge's disposition to which specific written objection has been made." Fed.R.Civ.P. 72(b); see United States v. Raddatz, 447 U.S. 667, 672 (1980). Following this review, the district judge may "accept, reject, or modify the recommended decision" of the magistrate judge. Raddatz, 447 U.S. at 673. Judicial review of the Commissioner's decision is limited to a determination of whether the findings of fact are supported by substantial evidence and the Commissioner employed the proper legal criteria in reaching a decision. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). The phrase, substantial evidence, means "such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Id.. The substantiality of the evidence must be based on the record as a whole. Id. at 388. In reviewing the record for substantial evidence, a court may not decide the facts anew, reassess the evidence, or substitute its own judgment for that of the Commissioner. Hale v. Secretary of Health and Human Svcs., 816 F.2d 1078, 1082 (6th Cir. 1987). Indeed, if supported by substantial evidence, the Commissioner's decision must be upheld even if the reviewing court would have decided the matter differently. Kansella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983).
IV.
In her objections to Magistrate Judge Scheer's report, Moore insists that she has fully satisfied the standards of the substantial evidence test because there is ample evidence in the record to support her claim for disability benefits. In order to establish a compensable disability under the Social Security Act, 42 U.S.C. § 301-1397e, an individual must demonstrate that she is unable to engage in any substantial gainful activity due to a medically determinable physical or mental impairment which has lasted, or can be expected to last, for a continuous period of not less than twelve (12) months. 42 U.S.C. § 1382c(a)(3)(A). The severity of the mental or physical impairment must be such that the claimant is not only unable to do her previous work but cannot engage in any other kind of substantial gainful work which exists in the national economy when such factors as age, education and work experience are taken into consideration. 42 U.S.C. § 1382c(a)(3)(B).
To assist in the determination of whether a claimant is disabled within the meaning of the Act, the Secretary of Health and Human Services ("Secretary") has promulgated the following five (5) step evaluation process:
Step One: If the claimant is currently working, and the work represents a substantial gainful activity, there will be no finding of a disability regardless of claimant's age, education, and work experience.
Step Two: If claimant does not have a severe impairment or combination of impairments, which significantly limits her physical or mental ability there will be no finding of a disability.
Step Three: If claimant does have a severe impairment and that impairment meets the duration requirement listed in Appendix 1, or is equal to a listed impairment, the claimant will be found to be disabled without consideration as to age, education, and work experience.
Step Four: If claimant is unable to perform the work she has done in the past due to her impairment, the Secretary will consider claimant's residual functional capacity, age, education, and past work experience to determine if she can do other work. If she cannot, claimant will be found to be disabled.
Step Five: If the claimant is able to perform other work in the national economy, in view of her age, education and previous work experience, there will be no finding of a disability.20 C.F.R. § 404.1520, 416.920 (2001); see also Preslar v. Secretary of Health and Human Services, 14 F.3d 1107, 1109 (6th Cir. 1994). Throughout the first four steps of the evaluation process, the claimant bears the burden of proof Id.However, if the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden shifts to the Secretary to show that the claimant is able to perform other available work in the national economy. Id.at 1110.
The phrase, " work which exists in the national economy," when applied to Social Security issues, is defined as work which exists in significant numbers either in the region where such an individual lives or in several regions in the country. 42 U.S.C. § 1382c(a)(3)(B).
The record in the instant action indicates that Moore complained of; and received treatment for, pelvic and abdominal pain associated with endometriosis, as well as for chest pain and shortness of breath between 1992 and 1998. Her medical records also indicate that she suffered from dysmenorrhea (to wit, painful menstruation), stage 1 endometriosis with fibroid uterus and omental adhesions to the fundus of the uterus, as well as spontaneous pneumothorax. (Tr. 167, 222). Moore underwent an exploratory laparatomy for pelvic pain and received lysis of adhesions in her uterus in 1991 and 1992. (Tr. 143.) In 1993, she underwent a final laparoscopy for lysis of the adhesions and a treatment of her endometriosis. Id.Moore was scheduled to receive another laparoscopy for lysis of adhesions in 1997. However, Dr. Valerie Montgomery-Rice cancelled the procedure because, in her opinion, it would likely cause damage Moore's bowel structure. Id.at 211. Moore also received treatment for her pneumothorax in April 1998, when she was admitted to the hospital after complaining of chest pains. (Tr. 222). She remained in the hospital for a period of nine (9) days during which a chest tube was inserted in order to allow her left lung to expand. Id.Following the insertion of the chest tube, Moore's shortness of breath condition improved and she felt "much better" at the end of her hospital stay. Id.
Moore has been prescribed a number of medications for treatment of her conditions, including Terazol, Triphasil birth control pills, Toradol, Anaprox, Flagyl, and Tylenol #3. (Tr. 15, 167).
Moore, who worked as a medical assistant between 1992 and 1995, resumed her employment in 1997 and continued in that capacity until she suffered a left pneumothorax. (Tr. 78, 119).
In his application of the five-step evaluation process to relevant facts in the record, Administrative Law Judge Hammerly concluded that Moore was not disabled within the meaning [of the Act. It was his determination that, although Moore had severe impairments, including a history of pelvic and abdominal pain, dysmenorrhea, pelvic adhesions and endometriosis, she did not have an impairment, or any combination of impairments that was listed in or equal to the listing in Part 404, Sub-part P, Appendix 1. He also opined that Moore would be able to maintain substantial gainful work activity despite her gynecological impairments. (Tr. 17). In reaching this conclusion, the Administrative Law Judge relied primarily on the medical assessments of Moore's treating physicians between 1996 and 1997. (Tr. 15-16). All of her physicians during this period indicated that her pain, although severe, was intermittent in nature, could be controlled with medication, and did not prevent her from performing sedentary to light physical activity. Id.; see also (Tr. 114, 116, 142, 167). Administrative Law Judge Hammerly also noted that, in addition to the medical record, Moore's testimony during the hearing indicated that her pneumothorax problem had been resolved. Thus, it was his view that Moore's pain would neither substantially impair her ability to work nor last for twelve (12) months. In his opinion, these findings were underscored by Moore's daily activities, which he found to be inconsistent with her claims of total disability. Additionally, it was the view of Administrative Law Judge Hammerly that Moore's plan for another pregnancy was also inconsistent with her claims of disability. (Tr. 17).
An impairment meets the requirements of the listing only when it manifests the specific findings that are described in the set of medical criteria for the particular listing. 20 C.F.R. § 404.1525 (d) (2001)
Based on Moore's previous work experience as a medical assistant the vocational expert, Richard Szydlowski, determined that there were approximately 1, 500 jobs in the metropolitan area of Detroit which she was qualified to perform. However, in light of his assessment of her testimony during the administrative hearing, Szydlowski opined that Moore was not capable of performing any work activity. (Tr. 38).
Moore's daily activities included the ability to perform household chores, drive an automobile, cook and shop for her three year old son and the two other children who live with her.
Based on its own review of the facts in the record, the Court is satisfied that the totality of the evidence was, and continues to be, sufficient to support the Administrative Law Judge's ultimate decision regarding Moore's inability to satisfy the listing requirements.
V.
In her final objection to Magistrate Judge Scheer's report, Moore avers that Administrative Law Judge Hammerly's conclusions about the duration of her pneumothorax condition were erroneous. (Pl.'s Objections at 1). Moore maintains that there is substantial evidence in the administrative record to support her contention that she suffers from lymphangiomyomatosis which, in her words, is "a rare chronic deteriorating lung disease with no current treatment or cure." Thus, she believes that her "only option" is to have a bilateral lung transplant. Id.Moore ostensibly based her opinion on two medical reports that had been written by Dr. Richard M. Chesborough and were placed into the record subsequent to the close of the administrative hearing (namely, July 24, 1998 and August 20, 1998). In making his evaluation of Moore's pending request for disability benefits, Magistrate Judge Scheer examined the documents in question and concluded that they did not render a clear diagnosis. (Report and Recommendation of January 31, 2001 at 9-10). These reports had made reference to the multiple air cysts that were found in the Moore's lung. In recording his impressions, Dr. Chesborough noted that the findings on July 24, 1998 "may represent early stages of emphysema, or possibly histiocytosis X, or lymphangiomytosis [sic]." (Tr. 245). He also opined that Moore's lung volumes had neither increased nor decreased. Id.The diagnostic report of August 20, 1998 revealed that, even though there had been a "mild airway obstruction and air trapping," the airway resistance was normal. Id.at 247.
In further support of her objection, Moore attached a May 24, 1999 letter from Dr. Kevin Moss, as well as a record of the medical evaluations by Drs. Joseph Anderson and Kevin Chan on June 23, 2000 and July 11, 2000, respectively. In his letter, Dr. Moss indicated that Moore, who suffers from "lymphangioleiomyomatosis and respiratory bronchiolitis . . . will no longer be able to engage in gainful employment." In their June 23rd and July 11th evaluations, Drs. Anderson and Chan concluded that Moore's condition suggested findings of either angio leiomyomatosis or lymphangioleiomyomatosis.
Leiomyomatosis is "a condition in which multiple leiomyomas occur throughout the body." Dorland's Illustrated Medical Dictionary at 911 (28th ed. 1994). This Dictionary defines (1) letomyoma as a "benign tumor derived from smooth muscle, most commonly in the uterus; called also a fibroid and fibroid tumor" and (2) angioleiomyoma as a "vascular leiomyoma." Id Conversely, lymphangiomyomatosis, is defined as "a progressive disorder of women of childbearing age, marked by proliferation of atypical smooth muscle cells in the walls of the lymphatics of the lower respiratory tract, pleura, mediastinum, and retroperitoneum." Id.at 968.
It is an error for the district court to consider newly presented material in determining whether substantial evidence supported the Commissioner's decision of non-disability. Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). However, this Court may request the Commissioner to consider additional evidence upon a showing by a claimant that (I) the evidence is material and (2) she had good cause for failing to present the evidence in a prior hearing. 42 U.S.C. § 405 (g) see also Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991); see also Clive v. Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996). A finding of materiality by the Court requires the petitioner to demonstrate that there is a reasonable probability that the hearing officer would have arrived at a different result if he been presented with the same evidence during the course of the proceedings. Sizemore v. Secretary of Health and Human Svcs., 865 F.2d 709, 711 (1988).
42 U.S.C. § 405 (g) provides in pertinent part:
The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence in to the record in a prior proceeding . . . .
In the instant action, Moore has met her burden with respect to the second prong of the Section 405(g) analysis. Inasmuch as the written evaluations from Drs. Anderson and Chan had not been conducted prior to the completion of the administrative hearing, Moore has established a good cause for her failure or inability to present these medical reports to the hearing officer in a timely manner. Regarding the materiality prong under Section 405(g) and with recognition that it is a close question, the Court concludes that Moore has failed to meet her burden. Only one physician, Dr. Moss, opined that Moore would be precluded from engaging in any gainful employment as a result of her physical maladies. Unfortunately for Moore, Dr. Moss' conclusion jis not supported by any specific evidence of the laboratory tests upon which he presumably relied or the diagnostic procedures that were ostensibly employed by him in reaching this result. See King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); see also Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984) (treating physicians generally accorded substantial deference if opinion is based on sufficient medical data). Further, the evaluation by Dr. Chan indicates that, although Moore did appear to have lymphangioleiomyomatosis (to wit, numerous tiny cysts throughout both lungs), she was temporarily "disqualified for consideration for a lung transplantation based on her continued use of tobacco products as well as recreational drugs and her fairly normal lung function" and that "therapeutic intervention for at least three to six months was warranted." (Pl's Objections, Ex. C at 2).
Having reviewed the newly submitted evidence, the Court finds that it is insufficient to warrant a determination that the administrative law judge would have arrived at a different conclusion if he been presented with this evidence during the proceedings.
Accordingly, the Court (1) accepts the recommendation of Magistrate Judge Scheer, (2) grants the Commissioner's motion for summary judgment, and (3) denies Moore's motion for summary judgment.
IT IS SO ORDERED.
JUDGMENT
On this date, the Court entered an order in which it adopted the report of Magistrate Judge Donald A. Scheer and granted the Motion for Summary Judgment by the Defendant, Commissioner of Social Security. Accordingly, a judgment shall be entered in favor of the Commissioner and against the Plaintiff, Doris J. Moore.
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