Opinion
Case Number 00-10468-BC.
July 9, 2004
The plaintiff filed the present action on January 12, 2001 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 Commissioner or in the alternative that the case be remanded for additional testimony. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner.
Magistrate Judge Binder filed a Report and Recommendation on July 17, 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.
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 objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ). The plaintiff also complains that the ALJ did not pose complete and accurate hypothetical questions to the vocational expert. The plaintiff states that the ALJ's hypothetical questions did not include all of the plaintiff's restrictions and limitations, particularly his nonexertional limitations, and failed to include any mention of his sleep apnea, fatigue, or limited intellectual functioning.
The plaintiff, who is now forty-nine years old, first applied for a period of disability and disability insurance benefits on November 6, 1995, when he was forty years old. The plaintiff worked for twenty-two years as a laborer in a shop and as a bricklayer. He last worked in 1994. He alleged that he became disabled on May 15, 1994, but later amended his application to state a disability date of March 1, 1998. This amendment reflected the denial of a prior application for Title II and XVI benefits that was denied by the Commissioner finally on February 25, 1998, which operated to bar consideration of earlier periods of disability. See 20 C.F.R. §§ 404.987-404.989; Drummond v. Comm'r of Soc. Sec., 126 F.3d 837, 841 (6th Cir. 1997).
In his present application for disability insurance benefits and supplemental security income filed on June 1, 1998, the plaintiff alleged that he was unable to work as a result of leg pains, a sleeping disorder, diabetes, and arthritis. His claim was initially denied, and the denial was upheld on reconsideration. On March 17, 2000, the plaintiff appeared before ALJ Robert Brown when he was forty-five years old. ALJ Brown filed a decision on May 15, 2000 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, 416.920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since March 1, 1998 (step one); the medical evidence in the plaintiff's case established that he has "severe" impairments of diabetes, sleep apnea, and borderline intellectual functioning (step two); these impairments did not by themselves or in combination meet or equal a listing in the regulations (step three); and the plaintiff could not perform his previous work as a utility man (step four).
In applying the fifth step, the ALJ concluded that the plaintiff's residual functional capacity was for the full range of sedentary work. His limitations included no work that involves lifting more than ten pounds, no climbing, avoids excessive fumes, and is performed in a nonhazardous, clean-air working environment with no production line use of his upper extremities, involving only simple, repetitive, non-complex tasks that take into account his borderline intellectual functioning. Relying on the testimony of a vocational expert, the ALJ found that such jobs as assembler, manual inspector, sorter/packer, identification clerk, and ticket seller fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on November 17, 2000.
The plaintiff has the burden to prove that he is disabled and therefore entitled to benefits. Boyes v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
Under 42 U.S.C. §§ 423(d)(1)(A) (B) and 1382c(a)(3)(A) (B), a person is disabled if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" and the impairment is so severe that the person "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 activity which exists in the national economy." Further, "[a] physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(1)(C), 1382c(a)(3)(D).
To determine disability, the Commissioner has prescribed the five-step process noted above and set forth in 20 C.F.R. §§ 404.1520 and 416.920. However, if the plaintiff has satisfied his burden through the first four steps of the analytical process, the burden shifts to the Commissioner to establish that the plaintiff possesses the residual functional capacity to perform other substantial gainful activity. Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). See also Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). "To meet this burden, there must be a finding supported by substantial evidence that plaintiff has the vocational qualifications to perform specific jobs." Varley, 820 F.2d at 779 (internal quotes and citations omitted).
As the magistrate judge observed, the Commissioner concluded that the plaintiff did retain the residual capacity to perform some work, and he suggests that the Commissioner's findings are supported by substantial evidence. However, the plaintiff contends that the list of jobs suggested by the vocational expert at the plaintiff's administrative hearing is inaccurate because the ALJ omitted from his hypothetical question limitations pertaining to the plaintiff's mental impairments. Indeed, the ALJ concluded in his decision that the plaintiff retained the capacity to perform "only simply [sic] repetitive noncomplex tasks that take into account his borderline intellectual functioning." Tr. at 23. However, ALJ Brown did not include any limitation accounting to borderline intellectual functioning in his questions to the vocational expert at the March 17, 2000 hearing. Nonetheless, those limitations were included in the hypothetical questions posed at the prior hearing before ALJ Ransom, and ALJ Brown was permitted to rely on the information elicited on that record to make his step-five determination.
The plaintiff also criticizes the hypothetical question posed to the vocational expert because he claims it did not completely account for his limitations on ability to concentrate. He points to the Psychiatric Review Technique Form (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. He argues that "often" implies deficiencies in concentration fifty percent of the time, or within a range of 37-1/2 % to 62-1/2 %. He then points to then-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 his 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.
The record in this case contains no such evidence. Rather, ALJ Ransom's formulation of residual functional capacity in constructing the hypothetical question included limitations relating to the plaintiff's "functional illiteracy." Tr. at 39. It is reasonable to conclude, therefore, that the vocational expert actually took into account the limitations that the plaintiff is advocating in this Court.
Finally, the plaintiff complains that the ALJ failed to account for the plaintiff's need to nap or rest three times each day, which would have made him unable to perform any work in a competitive environment. However, the ALJ explained that he did not account for those limitations because he did not fully credit the plaintiff's testimony. The magistrate judge reviewed the rules that apply to the ALJ's assessment of pain complaints and concluded that they were properly applied at the administrative level, and the plaintiff does not take issue with that section of the report. Moreover, 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).
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 #11] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #12] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.