Case Number 01-10020-BC.
August 3, 2004
The plaintiff filed the present action on January 11, 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 for summary judgment to reverse the decision of the Commissioner and award her benefits. 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 September 27, 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 the 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 defendant's response thereto, 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) that the plaintiff is not disabled. The plaintiff argues that both the magistrate judge and the ALJ failed to address a diagnosis that the plaintiff suffered from fibromyalgia, which the plaintiff claims to be the principal impairment in this case. The plaintiff also assails the magistrate judge's conclusions regarding the opinion of one of the plaintiff's treating physicians, Dr. J.M. Goldberger. Although the magistrate judge found that Dr. Goldberger was "hopeful" the plaintiff could return to work, the plaintiff contends this finding ignores the context of Dr. Goldberger's office reports that the plaintiff's disability was severe. Moreover, the plaintiff argues that the magistrate judge misstated the letter and substance of Dr. Goldberger's reports in his recommendation. The plaintiff also contends that although discussed in her motion for summary judgment, the magistrate judge failed to mention or discuss Preston v. Secretary of Health and Human Services, 854 F.2d 815 (6th Cir. 1988), a Sixth Circuit opinion regarding fibrositis and chronic fatigue syndrome. Finally, the plaintiff argues that the magistrate judge improperly relied on the conclusions of the defendant's "consultative examiner."
The plaintiff, who is now forty-nine years old, applied for a period of disability and disability insurance benefits on May 23, 1998, when she was forty-four years old. The plaintiff worked for several years as a production worker in several different factories, and for two years she held a second job as a sales associate at a Sears retail store. She last worked on July 18, 1997, which was the date she alleged her disability began as a result of a slip and fall accident that was not work-related.
In her application for disability insurance benefits, the plaintiff alleged that she was unable to work due to pain in her low back, left leg, and left knee following the slip-and-fall injury. Her claim was initially denied, and the denial was upheld on reconsideration. On October 5, 1999, the plaintiff appeared before ALJ John Ransom when she was forty-five years old. ALJ Ransom filed a decision on December 27, 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. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since July 18, 1997 (step one); the medical evidence in the plaintiff's case established that she has "severe" impairments of left shoulder derangement, carpal tunnel syndrome bilaterally, low back pain, knee pain, and adjustment disorder (step two); the plaintiff does not have an impairment or combination of impairments that meet or equal a listing in the regulations (step three); and the plaintiff could not perform her previous work as a production worker or salesperson (step four).
In applying the fifth step, the ALJ concluded that the plaintiff retained the residual functional capacity to perform a restricted range of sedentary work with limitations of lifting no more than ten pounds; a sit-or-stand option; no repetitive bending, twisting or turning; no crawling, squatting, kneeling, or climbing; no repetitive pushing or pulling, gripping or grasping; and a low stress job that is simple or repetitive in nature with no work above the shoulder level. Relying on the testimony of a vocational expert, the ALJ found that such jobs as inspector, cashier, sorter, and security monitor 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, who denied the plaintiff's request for review on December 8, 2000.
All parties agree with the magistrate judge that the plaintiff has the burden of proving disability in order to qualify for social security disability benefits, and that "disability" is defined as the "inability to engage in any substantial gainful activity" due to a "physical or mental impairment" that could cause death or might reasonably be expected to last continuously for at least twelve months. See 42 U.S.C. § 423(d)(1)(A). Of course, a person is not disabled merely because her limitation prevents her from performing previous work, if that person can perform other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The parties also accept the rule that the authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and "whether there is substantial evidence in the record to support the findings." Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)). The plaintiff takes issue with the application of this rule, however, arguing that the magistrate judge and the ALJ culled from the record only that evidence that favored a determination of no disability, violating the familiar instruction that a decision can not be based on a single piece of evidence in disregard of other pertinent evidence that exists in the record, see Hephner v. Matthews, 574 F.2d 359, 362 (6th Cir. 1978), and that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
The arguments advanced by the plaintiff, the Court believes, can be distilled into two points: first, the ALJ and the magistrate judge did not address the diagnosis of fibromyalgia or apply the analysis suggested by the Sixth Circuit in Preston v. Sec'y of Health Human Services; and second, the ALJ failed to give a good reason for failing to accept the statements of the plaintiff and her primary treating physician, Dr. Goldberger, that she suffered from pain that was a disability. To these arguments, the Commissioner responds that the ALJ's failure to consider fibromyalgia as a severe impairment is irrelevant when the ALJ found several other sever impairments, and the magistrate judge was correct in concluding that the ALJ's findings were supported by substantial evidence because they were based entirely on the physical limitations described by Dr. Goldberger and affirmed by the plaintiff, which were consistent with the residual functional capacity found by the ALJ.
The Court finds it most convenient to take these objections and responses in reverse order. The Commissioner is correct in observing that Dr. Goldberger imposed limitations on the plaintiff that are consistent with the ability to perform work at the sedentary level. Dr. Goldberger wrote in October 1997, approximately three months after the plaintiff's injury accident, that the plaintiff could return to work with restrictions consisting of no "climbing, bending, squatting, [and] weight restrictions over 10 lbs." Tr. at 239. By February 1998, Dr. Goldberger believed that the plaintiff's physical limitations would prevent her from returning to her previous jobs, but in March 1998, he decided that plaintiff could work at a job if it were "truly sedentary." Tr. at 144. He offered examples of ticket taker at a theater, library aide, and reading to shut-ins at a nursing home. Ibid.
The ALJ seized on this evidence and concluded that it was consistent with the plaintiff's own testimony describing her limitations. See Tr. at 18. He represented that the plaintiff testified that she could stand or sit for up to ten minutes and found that her own characterization of her limitations was consistent with work at the sedentary exertional level.
Jobs are sedentary if walking and standing are required "occasionally" and other sedentary criteria set forth in the regulations are met. 20 C.F.R. § 404.1567(a) (2002) ("Sedentary work involves lifting no more than ten pounds at a time and occasionally carrying articles like docket files, ledgers, and small tools. . . ."). According to Social Security Ruling (SSR) 83-10,
"[o]ccasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than 2 hours of an 8hour work day, and sitting should generally total approximately 6 hours of an 8-hour work day. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.
However, the record indicates that the plaintiff testified that she could stand for no more than two minutes and she was always uncomfortable sitting. Tr. at 251. She said that she has trouble turning her neck due to shoulder pain, she has pain in her shoulder, knee and low back, and she cannot raise her arm above shoulder level. Id. at 246, 250. She cannot comb her hair or get dressed without assistance, and she is unable to get in and out of a bath tub. Id. at 251. She also said that her energy level is so low that her daily activity consists of moving from the bed to the couch, and she typically lies down for most of an eight-hour day. Id. at 253-54.
The vocational expert testified that if the plaintiff were limited by the need to lie down most of the day there would be no jobs available in the national economy that she could perform. Id. at 261. The Commissioner's argument that the ALJ's residual functional capacity findings track the plaintiff's description of her limitations, consistent with sedentary work, and thus are supported by substantial evidence cannot be accepted. Moreover, the ALJ never rejected the plaintiff's testimony as not fully credible. One might imply such a ruling from the ALJ's ultimate determination, and indeed the Court likely would have little trouble finding evidence in the administrative record supporting such a ruling if it were made, see Walters v. Commissioner of Social Sec., 127 F.3d 525, 531-32 (6th Cir. 1997) (holding that "[d]iscounting credibility to a certain degree is appropriate where an ALJ finds contradictions among the medical reports, claimant's testimony, and other evidence"), but that is not the function of the Court on review. Rather, "[i]f an ALJ rejects a claimant's testimony as incredible, he must clearly state his reasons for doing so." Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994) (citing Auer v. Secretary of Health Human Services, 830 F.2d 594, 595 (6th Cir. 1987)); see also Social Security Ruling (SSR) 96-7p (holding that the ALJ's "determination or decision must contain specific reasons for the finding on credibility . . . to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight"). However, the ALJ failed to explain his decision in light of the plaintiff's testimony, and therefore it is not supported by substantial evidence.
There is no evidence in the decision that the ALJ considered the diagnosis of fibromyalgia. Fibromyalgia has been said to constitute a diagnosis by limitation, see Preston, 854 F.2d at 817-18 (observing that "[a]s set forth in the two medical journal articles . . . fibrositis causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances. . . . [I]t is a process of diagnosis by exclusion and testing of certain `focal tender points' on the body for acute tenderness which is characteristic in fibrositis patients"). However, the Secretary has noted that chronic fatigue syndrome and fibromyalgia are medically determinable and that the presence of certain symptoms, including the presence of focal trigger points, may be sufficient to establish the diagnosis. See Social Security Ruling (SSR) 99-2p ("CFS [chronic fatigue syndrome] is a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity. The current case criteria for CFS, developed by an international group convened by the Centers for Disease Control and Prevention (CDC) as an identification tool and research definition, include a requirement for four or more of a specified list of symptoms. These constitute a patient's complaints as reported to a provider of treatment. However . . . [d]isability may not be established on the basis of an individual's statement of symptoms alone."). According to SSR 99-2p, the manifestations of fibromyalgia and CFS are:
[T]he presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has not been lifelong), cannot be explained by another physical or mental disorder, is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities. Additionally, the current CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue:
Self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities;
Tender cervical or axillary lymph nodes;
Multi-joint pain without joint swelling or redness;
Headaches of a new type, pattern, or severity;
Unrefreshing sleep; and
Postexertional malaise lasting more than 24 hours.
Within these parameters, an individual with CFS can also exhibit a wide range of other manifestations, such as muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g., lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g., difficulty comprehending and processing information), fainting, dizziness, and mental problems (e.g., depression, irritability, anxiety).
The Ruling also addresses the requirement of Sections 223(d)(3) and 1613(a)(3)(D) of the Social Security Act and 20 C.F.R. §§ 404.1508, 416.908, that evidence of an impairment must include objective clinical or laboratory manifestations.
For purposes of Social Security disability evaluation, one or more of the following medical signs clinically documented over a period of at least 6 consecutive months establishes the existence of a medically determinable impairment for individuals with CFS:
Palpably swollen or tender lymph nodes on physical examination;
Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; or,
Any other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record.
SSR 99-2p (footnote omitted). The Ruling also recognizes that at the present time, there are no laboratory findings that are accepted as confirmatory of CFS. However, the following findings will be sufficient, although not required, to establish a medically determinable impairment under the Act:
An elevated antibody titer to Epstein-Barr virus (EBV) capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:640;
An abnormal magnetic resonance imaging (MRI) brain scan;
Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or,
Any other laboratory findings that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record; for example, an abnormal exercise stress test or abnormal sleep studies, appropriately evaluated and consistent with the other evidence in the case record.Ibid.
The diagnosis of fibromyalgia is not a very strong one on this record. Dr. Goldberger's discussion of the condition in his medical records is far from clear, since those records consist of cascades of words unrestrained by punctuation or grammar. Nonetheless, he mentions the term fibromyalgia in his reports of July 23, 1997, tr. at 169, February 10, 1998, id. at 146, March 17, 1998 id. at 144, April 21, 1998, id. at 142, and September 25, 1998, id. at 197. Dr. Jonathan Rene, a rheumatologist, also mentioned the term in his letter of September 15, 1997. Id. at 156-57. However, neither Dr. Goldberger nor Dr. Rene ever actually include fibromyalgia in a differential diagnosis — rather they agree with each other's "diagnosis" of the condition — nor is there any evidence of tender focal trigger points, although the plaintiff had a history of complaints consistent with some of the other symptoms.
In all events, the ALJ did not evaluate the impairment according to SSR 99-2P, despite the fact that it recently had become effective before his decision was filed on December 27, 1999. That condition is a medically determinable condition that may support a finding of disability resulting from 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). As noted above, the ALJ did not specifically reject the plaintiff's testimony of disabling pain and fatigue. But that determination necessarily must account for all the underlying medical conditions contained in the record. Thus, the ALJ's determination that the plaintiff suffered from some severe impairments would not render irrelevant the failure to consider the diagnosis of fibromyalgia, such as it was in the record, on the question of disability as a result of pain.
Having determined that the Commissioner's decision is not supported by substantial evidence, the question remains whether further fact-finding is required, for "[i]f 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 plaintiff's entitlement to benefits." Faucher v. Sec. of Health Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). In Faucher, the district court found that the Commissioner's decision was not supported by substantial evidence because the hypothetical question posed by the ALJ to a vocational expert did not incorporate all of the claimant's impairments. The district court also concluded that it was unable to remand for taking new and additional evidence because of the limitation contained in sentence six of 42 U.S.C. § 405(g), which conditions a remand on a showing of good cause. Rather, the district court remanded for an award of benefits. On appeal, the court of appeals agreed that sentence six of Section 405(g) requires the Secretary to establish good cause as a prerequisite to a remand However, a post-judgment remand for further proceedings is authorized under sentence four of Section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 97-98 (1991).
The court of appeals in Faucher agreed that the Commissioner's decision was not supported by substantial evidence, but concluded that a remand for benefits was inappropriate in that case. The court reasoned that the record was incomplete because the correct hypothetical question was never posed to the vocational expert. The witness was never given an opportunity to respond to a question that incorporated not only plaintiff's physical impairments but also the severity of his emotional impairments, and the record contained conflicting evidence on the severity of plaintiff's emotional impairments. The court observed that the district court had acknowledged that "it was not known whether plaintiff might be capable of performing a significant number of jobs in the national economy that would accommodate his combined limitations." Faucher, 17 F.3d at 176. The court concluded, therefore, that "the case must be remanded to the ALJ for further consideration of this issue." Ibid.
In Mowery v. Heckler, 771 F.2d 966 (6th Cir. 1985), the plaintiff sought Social Security disability insurance benefits, which were denied at the agency level, and he did not prevail in the district court. He suffered from hypertension, headaches and dizziness, and aches and pains. He was forced to stop work as a construction laborer because of pain. He had worked several years earlier as a night watchman. His I.Q. was below-average. Psychological tests established that plaintiff was able to function only in construction and mining jobs, and an orthopedic examination showed that the plaintiff had limitation in movement which precluded that activity. The ALJ had denied benefits concluding that plaintiff could perform light work, such as that of a night watchman, although there was evidence in the record that plaintiff had suffered a hearing loss and could only perform as a night watchman when assisted by his son and daughter. The court of appeals reversed the district court and remanded the case to the agency for an award of benefits. The court held:
The court finds it unnecessary to remand the case to the Secretary for further evaluation. In cases where there is an adequate record, the Secretary's decision denying benefits 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.Id. at 973.
In this case, additional factual questions require resolution at the administrative level. A remand for further fact finding is required so that the Commissioner can determine and take appropriate account of the plaintiff's impairment and the limitations imposed as a result of fibromyalgia, and consider whether her testimony describing her functional limitations are fully credible.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation is REJECTED in part.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt #10] is GRANTED IN PART and DENIED IN PART.
It is further ORDERED that the defendant's motion for summary judgment [dkt #16] is DENIED. The findings of the Commissioner are REVERSED, and the matter is REMANDED to the Social Security Commission for further proceedings.