Opinion
Case Number 01-10230-BC.
November 12, 2004
The plaintiff filed the present action on July 2, 2001 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 to remand to further proceedings under sentence four of 42 U.S.C. § 405(g). The defendant filed a motion for summary judgment requesting affirmance of the Commissioner's decision.
Magistrate Judge Binder filed a report and recommendation on October 3, 2003 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. In his summary judgment motion, the plaintiff argued that substantial evidence does not support the decision of the Administrative Law Judge (ALJ) that the plaintiff was not disabled because the disability determination was based entirely and inappropriately on the Medical-Vocational Guidelines (the "grid rules"), which only should have been used as a framework in this case because there allegedly were additional, non-exertional impairments. The plaintiff also assigned as error the failure to reopen a prior determination made in 1978 that a prior disability had ceased because of medical improvement. The plaintiff objects to the magistrate judge's rejection of those contentions, and he repeats many of his summary judgment arguments in his objections to the magistrate judge's recommendation.
The plaintiff is presently fifty-nine years old and has not worked since 1974 when he was injured while employed as an iron worker. He was found to be disabled from that injury in an August 13, 1976 decision by an ALJ, but his Social Security disability benefits were discontinued in August, 1978 after a continuing disability review (CDR) concluded that he had improved medically. Because he never returned to work, however, his insured status ceased as of March 31, 1982. See 42 U.S.C. §§ 416(i), 423(d)(1)(A); 20 C.F.R. § 404.130(b) (stating that a worker's insured status ceases after the last quarter in which he had twenty quarters of contribution into the Social Security system within a forty-quarter period).
In his most recent application for disability insurance benefits, the plaintiff alleged that he became disabled on September 1, 1978, the day after his unfavorable decision following the CDR. He states that he was unable to work due to a long history of degenerative joint disease and assorted sprains, strains, and pains that affected his back. IIis application was initially denied, and the denial was upheld on reconsideration. The plaintiff made a timely request for a hearing and on September 2, 1999, the plaintiff appeared before ALJ William J. Musseman when he was fifty-six years old to challenge the denial of his application. He also requested the ALJ to reopen the prior CDR determination. ALJ Musseman filed a decision on September 22, 1999 in which he found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. Because of the expiration of the plaintiff's insured status eighteen years earlier, the ALJ properly confined his disability determination to the period when the plaintiff was eligible under the Social Security Act. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since September 1, 1978 (step 1); the plaintiff suffered from substantial impairments consisting of lower back and cervical pain with degenerative changes, which were "severe" within the meaning of the Social Security Act, but he did not suffer from severe psychological impairments (step two); the plaintiff did not have an impairment or combination of impairments that met or equaled a listing in the regulations (step three); and the plaintiff could not perform his previous work as an iron worker (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform a full range of sedentary and unskilled work. He found that the plaintiff was fully literate, he was thirty-six years old at the end of the relevant period and therefore was considered a younger individual, and he had no transferable skills. The ALJ then applied Medical-Vocational Rule 201.24, which directed a finding of "not disabled." See 20 C.F.R. Pt. 404, Subpt. P, Appendix 2 § 201.24. No vocational expert witness testified at the hearing. After ALJ Musseman issued his decision, the plaintiff sought review from the Appeals Council, which was denied on April 10, 2001.
The magistrate judge conducted an exhaustive review of the administrative record, which will not be repeated here. He rejected the plaintiff's argument that alleged irregularities at the administrate level of review required a remand. The plaintiff had asserted in his motion that his due process rights were abridged because the ALJ did not include the complete file from the 1978 CDR determination in the record of the present case, and therefore the plaintiff was denied the right to a full review of the decision not to reopen that determination. The magistrate judge found that there was no credible evidence of an unadjudicated mental impairment that existed during the relevant period twenty years earlier, and thus no basis to reopen the prior determination. Although the plaintiff's objections point out that this observation does not account for the documentation that was allegedly "removed from the file," a claim that is only obliquely suggested by the record in this case, it does not address the point that the Court does not have jurisdiction to review the refusal to reopen an old disability determination under 42 U.S.C. § 405(g). See Califano v. Sanders, 430 U.S. 99, 108 (1977). The plaintiff has made no colorable constitutional claim supported by the record that would permit an exception to this rule.
However, the plaintiff puts a different gloss on the missing evidence argument in his objections by stating that the old record showed a psychological impairment that would have provided a "bridge" to the report of psychologist R. Cornette, Ph.D., who examined the plaintiff in 1999 and attempted to diagnose a psychological impairment in the plaintiff projected back to the relevant period. That argument attempts to address the rule that medical evidence is relevant to prove a disability only while the claimant enjoyed insured status. Estep v. Weinberger, 525 F.2d 757, 757-58 (6th Cir. 1975). Medical evidence that postdates the insured status date may be, and ought to be, considered, but only insofar as it bears on the claimant's condition prior to the expiration of insured status. Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976) ("Medical evidence of a subsequent condition of health, reasonably proximate to a preceding time, may be used to establish the existence of the same condition at the preceding time."); IIiggs v. Bowen, 880 F.2d 860, 862-63 (6th Cir. 1988).
The ALJ acknowledged Dr. Cornette's report but found nonetheless that there was insufficient evidence of a psychological impairment during the relevant period. There is substantial evidence in the record, described by the magistrate judge, which supports that conclusion. The plaintiff makes an argument that might support an alternate view of the record. However, the Commissioner's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Lashley v. Sec'y of Health Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983). The reviewing court must affirm the Commissioner's findings if they are supported by substantial evidence and the Commissioner employed the proper legal standard. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). This Court may not base its decision on a single piece of evidence and disregard other pertinent evidence when evaluating whether substantial evidence in the record exists. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). But 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'y of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989).
The plaintiff's invocation of an argument that a psychological impairment existed during the relevant period is also intended to support the claim that the ALJ should not have relied exclusively on the grid rules to fulfill the step-five burden. The grid rules, that is, the Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpt. P, Appendix 2, allow the Secretary to take "administrative notice" of the availability of jobs in the national economy that can be performed by individuals who have the personal characteristics that Congress deems relevant: the claimant's age, education, job experience, and functional capacity to work. See 42 U.S.C. §§ 423(d)(2)(B). See Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). "[R]ote application of the grid is inappropriate" when a claimant suffers from not only an exertional impairment, but also another limitation that diminishes his capacity to work. Id. at 926. However, the ALJ found that the plaintiff did not suffer from a psychological limitation. Therefore, the plaintiff's psychological condition was no obstacle to applying the grid rules to direct a finding of "not disabled."
The plaintiff also argues that his need to use a cane was a limitation that prevented direct application of the grid rules. He says that the ALJ should have taken that limitation into account, included the limitation in the assessment of the plaintiff's residual functional capacity to engage in gainful activity, and summoned a vocational expert to determine whether there were sufficient jobs available to allow the Commissioner to meet his step-five burden. See Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987) (holding that at step five of the sequential evaluation process the Commissioner carries the burden to establish that the plaintiff possesses the residual functional capacity to perform work). The ALJ noted that the plaintiff testified that he used a cane during the applicable period, but the ALJ rejected the plaintiff's testimony as not fully credible, a finding that the plaintiff also criticizes.
The Court views that plaintiff's contention that cane usage is another impairment that prevents direct application of the grid rules as simply a challenge to the finding that he could perform full range of sedentary activity. However, there is no evidence in the record that contradicts that finding except for the plaintiff's own testimony concerning his limitations due to pain. 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).
That standard has been implemented by 20 C.F.R. § 404.1529(b) (1995), which requires the plaintiff to 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 his 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 his disability due to pain and therefore he discounted his 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 Social 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 agrees with the magistrate judge that substantial evidence supported the credibility finding.
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 to remand for further proceedings [dkt # 25] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 31] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.
JUDGMENT
In accordance with the Order entered on this date,It is ORDERED AND ADJUDGED that judgment is GRANTED in favor of the defendant and against the plaintiff.
It is further ORDERED AND ADJUDGED that the determination of the Commissioner of Social Security is AFFIRMED and that the complaint is DISMISSED with prejudice.