Opinion
Civil No. 04-CV-10041-BC.
January 27, 2005
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
In light of the entire record in this case, I suggest that substantial evidence supports the Commissioner's determination that Plaintiff is not disabled. Accordingly, IT IS RECOMMENDED that PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BE DENIED, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED, and that the FINDINGS OF THE COMMISSIONER BE AFFIRMED.
II. REPORT
A. Introduction and Procedural History
Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of Reference, this case has been referred to this Magistrate Judge for the purpose of reviewing the Commissioner's decision denying Plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income benefits. This matter is currently before the Court on cross motions for summary judgment.
Plaintiff was 47 years of age at the time of the most recent administrative hearing and has completed his GED. (Tr. at 317.) Plaintiff's relevant work history included a lifetime of working in construction, excavating and truck driving. ( Id.)
Plaintiff filed his claim for disability benefits on May 14, 2001, and filed his claim for supplemental security income benefits on December 26, 2001. (Tr. at 44-46, 299-301.) The ALJ determined that Plaintiff was alleging June 12, 2000, as the onset date of his disability. (Tr. 16.) Plaintiff's disability claim was denied, and he timely filed a request for hearing. (Tr. at 15, 26.) Plaintiff's SSI claim was then "escalated to the hearing level." (Tr. at 15.) In denying Plaintiff's disability claim, the Defendant Commissioner considered disorders of the back as possible bases of disability. ( Id.)
On March 21, 2003, Plaintiff appeared with counsel before Administrative Law Judge (ALJ) John A. Ransom, who considered the case de novo. In a decision dated April 25, 2003, the ALJ found that Plaintiff was not disabled. (Tr. at 12-23.) Plaintiff requested a review of this decision on June 18, 2003. (Tr. at 10.)
The ALJ's decision became the final decision of the Commissioner when, after the review of additional exhibits, (AC-1-2, Tr. at 306-13), the Appeals Council, on December 19, 2003, denied Plaintiff's request for review. (Tr. at 6-9.) On February 20, 2004, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision.
In this circuit, where the Appeals Council considers additional evidence but denies a request to review the ALJ's decision, since it has been held that the record is closed at the administrative law judge level, those "AC" exhibits submitted to the Appeals Council are not part of the record for purposes of judicial review. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993); Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore, since district court review of the administrative record is limited to the ALJ's decision, which is the final decision of the Commissioner, the court can consider only that evidence presented to the ALJ. In other words, Appeals Council evidence may not be considered for the purpose of substantial evidence review.
B. Standard of Review
This Court has original jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited to determining whether the Commissioner's findings are supported by substantial evidence and whether the Commissioner's decision employed the proper legal standards. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Brainard v. Sec'y of Health Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (per curiam). The Commissioner is charged with finding the facts relevant to an application for disability benefits. A federal court "may not try the case de novo, . . . ." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
If supported by substantial evidence, the Commissioner's decision is conclusive, regardless of whether the court would resolve disputed issues of fact differently, Tyra v. Sec'y of Health Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990), and even if substantial evidence would also have supported a finding other than that made by the ALJ. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc). The scope of the court's review is limited to an examination of the record only. Brainard, 889 F.2d at 681. "Substantial evidence is more than a scintilla but less that a preponderance of evidence and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 681 (citing Consolidated Edison Co. v. NLFB, 305 U.S. 197, 229 (1938)). The substantial evidence standard "`presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference from the courts.'" Mullen, 800 F.2d at 545 (quoting Baker v. Heckler, 730 F.2d 1147, 1149 (8th Cir. 1984)) (affirming the ALJ's decision to deny benefits because, despite ambiguity in the record, substantial evidence supported the ALJ's conclusion).
The administrative law judge, upon whom the Commissioner and the reviewing court rely for fact finding, need not respond in his or her decision to every item raised, but need only write to support his or her decision. Newton v. Sec'y of Health Human Servs., No. 91-6474, 1992 WL 162557 (6th Cir. July 13, 1992). When reviewing the Commissioner's factual findings for substantial evidence, a reviewing court must consider the evidence in the record as a whole, including that evidence which might subtract from its weight. Wyatt v. Sec'y of Health Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). There is no requirement, however, that either the ALJ or the reviewing court must discuss every piece of evidence in the administrative record. Anderson v. Bowen, 868 F.2d 921, 924 (7th Cir. 1989) ("a written evaluation of every piece of testimony and submitted evidence is not required"); Walker v. Bowen, 834 F.2d 635, 643 (7th Cir. 1987) (ALJ need only articulate his rationale sufficiently to allow meaningful review). Significantly, under this standard, a reviewing court is not to resolve conflicts in the evidence and may not decide questions of credibility. Garner, 745 F.2d at 387-88.
C. Governing Law
In enacting the Social Security system, Congress created a two-tiered system in which the administrative agency handles claims, and the judiciary merely reviews the determination for exceeding statutory authority or for being arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521, 110 S. Ct. 885, 890, 107 L. Ed. 2d 967 (1990). The administrative process itself is multifaceted in that a state agency makes an initial determination which can be appealed first to the agency itself, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If relief is not found during this administrative review process, the claimant may file an action in federal district court. Id.; Mullen, 800 F.2d at 537.
The "[c]laimant bears the burden of proving entitlement to benefits." Boyes v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994). "[B]enefits are available only to those individuals who can establish `disability' within the terms of the Social Security Act." Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). "Disability" means:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A) and 42 U.S.C. 1382c(a)(3)(A).
There are several benefits programs under the Act, including the Disability Insurance Benefits Program of Title II ( 42 U.S.C. §§ 401 et seq.) and the Supplemental Security Income Program of Title XVI ( 42 U.S.C. §§ 1381 et seq.). Title II benefits are available to qualifying wage earners who become disabled prior to the expiration of their insured status; Title XVI benefits are available to poverty stricken adults and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have different eligibility requirements, both require a finding of disability for the award of benefits.
The Commissioner's regulations provide that disability is to be determined through the application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments, benefits are denied without further analysis.
Step Three: If the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled without further analysis.
Step Four: If the claimant is able to perform his or her previous work, benefits are denied without further analysis.
Step Five: If the claimant is able to perform other work in the national economy, in view of his or her age, education, and work experience, benefits are denied.20 C.F.R. §§ 404.1520, 416.920. See also Garcia v. Sec'y of Health Human Servs., 46 F.3d 552, 554 n. 2 (6th Cir. 1995); Preslar v. Sec'y of Health Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990); Salmi v. Sec'y of Health Human Servs., 774 F.2d 685, 687-88 (6th Cir. 1985). "The burden of proof is on the claimant throughout the first four steps of this process to prove that he is disabled." Preslar, 14 F.3d at 1110. "If the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the [Commissioner]." Id. "Step five requires the [Commissioner] to show that the claimant is able to do other work available in the national economy. . . ." Id.
D. ALJ Findings
The ALJ applied the Commissioner's five-step disability analysis to Plaintiff's claim and found at step one that Plaintiff had not engaged in substantial gainful activity since the onset of his disability. (Tr. at 21.) At step two, the ALJ found that Plaintiff's impairments were "severe" within the meaning of the second sequential step. ( Id.) At step three, the ALJ found no evidence that Plaintiff's combination of impairments met or equaled one of the listings in the regulations. (Tr. at 22.) At step four, the ALJ found that Plaintiff could not perform his past relevant work. ( Id.) At step five, the ALJ denied Plaintiff benefits because Plaintiff could perform a significant number of jobs available in the national economy. ( Id.) Using the Commissioner's grid rules as a guide, the ALJ found that ". . . there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as assembly (12,600), machine operator (2700) and sorter (1000)." ( Id.)
E. Analysis and Conclusions
1. Legal Standards
The ALJ determined that Plaintiff possessed the residual functional capacity to return to a significant range of sedentary work. (Tr. at 22.)
Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. 404.1567(a) (1991). Social Security Ruling (SSR) 83-10 clarifies this definition and provides that:
"Occasionally" 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 about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. 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.
After review of the record, I suggest that the ALJ utilized the proper legal standard in his application of the Commissioner's five-step disability analysis to Plaintiff's claim. I turn next to the consideration of whether or not substantial evidence supports the ALJ's decision.
2. Substantial Evidence
Plaintiff argues that substantial evidence fails to support the findings of the Commissioner. In this circuit, 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. Mullen, 800 F.2d at 545. In other words, where substantial evidence supports the ALJ's decision, it must be upheld.
While this is unquestionably the black letter law, there is in this case the threshold issue of just what evidence qualifies for consideration in the "substantial evidence" calculus. In this circuit, it has been held that the administrative record is closed at the administrative law judge level. Willis v. Sec'y of Health Human Servs., 727 F.2d 551, 553-54 (6th Cir. 1984). Therefore, district court review of the administrative record is limited to the evidence presented to the ALJ and considered by him in rendering his decision, which in this case became the final decision of the Commissioner. Thus, the Court can consider only that evidence presented to the ALJ. Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Cline v. Comm'r of Soc. Sec., 96 F.3d 146 (6th Cir. 1996).
Plaintiff points to a letter dated August 26, 2003, from Dr. Williams, Plaintiff's long time family doctor, arguing that the medical opinions expressed by the doctor were ignored by both the ALJ and the Appeals Council. (Pl.'s Mot. for Summ. J., Dkt. 14 at 6, 10; Tr. at 313.) First, as to the ALJ, Plaintiff's counsel overlooks the fact that this letter was dated over four months after the administrative hearing. (Tr. at 314.) Moreover, the ALJ did not hold the record open for additional evidence, nor did counsel request the ALJ to do so. (Tr. 336-337.) As to the Appeals Council, whether or not it considered this letter, this Court cannot, since, as mentioned earlier, the record is closed at the administrative law judge level, thus rendering this later filed exhibit outside the record and therefore unavailable for judicial review. Cotton, 2 F.3d at 696.; Cline, 96 F.3d at 148.
Counsel for plaintiff also points to three handwritten statements by Dr. Williams along with the answers to questions put to him by an attorney for Legal Services of Northern Michigan. (Pl.'s Mot., Dkt. 14 at 3-4.) Copies of these documents appear as "AC" exhibits presented to the Appeals Council. (Tr. at 308-309, 311-312.) As mentioned, in this circuit "AC" exhibits submitted to the Appeals Council are not part of the record for purposes of judicial review. Cline, supra. However, careful review of the administrative record indicates that these records have been submitted twice, the first time prior to the administrative hearing. (Tr. at 292, 295.) They are therefore part of the record available for review.
Counsel for Plaintiff argues that the severity of Plaintiff's condition is "corroborated" by reports prepared by Drs. Brown and Awerbuch. (Pl.'s Mot., Dkt. 14 at 4; Exs. 1-2.) These reports post-date the administrative hearing by at least five months, and the record bears no indication that these reports were ever submitted to the Commissioner for review. Moreover, as correctly pointed out by the Commissioner, Plaintiff's motion is entirely silent as to whether he wishes a remand to the Commissioner for consideration of these materials. Since these reports are not part of the administrative record, under Cotton and Cline, supra, they are not part of the record for review by this Court. Furthermore, the Commissioner is correct that counsel for Plaintiff has failed to meet any of the requirements set forth in this circuit for a remand to the Commissioner based upon newly discovered evidence. See Willis v. Sec'y of Health Human Servs., 727 F.2d 551, 554 (6th Cir. 1984); Oliver v. Sec'y of Health Human Servs., 804 F.2d 964, 966 (6th Cir. 1986); Brainard v. Sec'y of Health Human Servs., 889 F.2d 679, 680-81 (6th Cir. 1989); Sizemore v. Sec'y of Health Human Servs., 865 F.2d 709, 711 (6th Cir. 1988).
These findings in no way eviscerate the record properly available to this Court. A review of the medical evidence contained in the administrative record and presented to the ALJ indicates that in early July 2000, Plaintiff underwent electromyographic testing at the request of Dr. Williams. The examining physician noted that Plaintiff complained of pain and numbness in the legs. Physical examination showed normal strength except for muscles in the left leg which had some "mild give way weakness." (Tr. at 116.) Reflexes were intact. Electromyographic testing showed no evidence of radiculopathy but was suggestive of neuropathy in the left leg, which the examining physician felt was "probably related to his old injury." (Tr. at 118.)
In early October 2000, Plaintiff was seen for complaints of bilateral low back pain by Dr. John DiBella. Plaintiff described cramping and aching pains in his lower back which radiated to the legs. Physical examination revealed mild tenderness over the L4 and L5 vertebrae. (Tr. at 144.) The sacroiliac joints were normal, but moderate paraspinal muscle spasm was seen in the lumbosacral segments. Muscle strength was normal, and no gross sensory deficits were seen. ( Id.) No abnormal reflexes were elicited, and deep tendon reflexes were brisk and normal. Plaintiff was able to raise up on heels and toes and ambulate, although he limped favoring the left leg. Forward flexion of the lumbar spine was limited to 30 of the normal 90 degrees. ( Id.) The doctor prescribed a series of epidural steroid injections. ( Id.) Between October 2000 and January 2001, Plaintiff underwent a series of lumbar epidural injections performed by Dr. Di Bella. (Tr. at 126-41, 146-58.)
In early November 2000, Dr. DiBella forwarded a letter to Dr. Malcolm Field. At that time, the doctor noted that epidural steroid injections had given Plaintiff "approximately 70 percent relief of his low back and lower extremity pain[.]" (Tr. at 160.) The doctor hoped to build on those improvements. Plaintiff recounted that he had "noticed a significant improvement in painful symptoms which has allowed him a greater ability to carry on his heavy workload in the construction business." ( Id.)
In mid-January 2001, Dr. DiBella forwarded another letter to Dr. Field, describing his treatment of Plaintiff. The doctor stated that the most recent series of epidural injections had given Plaintiff a little relief, although earlier injections done in October had been more successful. (Tr. at 159.) Upon discharging Plaintiff from treatment, the doctor stated: "[t]he patient noted at the time of discharge from the pain clinic, [that the injections] had made already significant improvement in his overall pain levels." ( Id.)
In early May 2001, Dr. Williams stated in a handwritten note that Plaintiff "is . . . totally disabled." (Tr. at 199.) The doctor noted that Dr. Field was scheduled to perform surgery and that thereafter Plaintiff "will be continually disabled for several months." ( Id.)
After MRI testing revealed the presence of degenerative disc disease, as well as other abnormalities, in early June 2001 (Tr. at 185-86), Plaintiff underwent a decompressive laminectomy and fusion conducted at St. Mary's Hospital by Dr. Malcolm Field. (Tr. at 178-80.) Dr. Field's diagnosis was degenerative lumbar disc disease at the L3-4, L4-5, and L5-S1 levels with probably mid-line disc herniation at the L4-5 vertebrae. (Tr. at 181.) Shortly after Plaintiff's surgery, Dr. Williams stated that Plaintiff was "improving and is going to be a long time . . . to recover." (Tr. at 198.)
In late July 2001, Plaintiff was seen by Dr. Waheed Akbar. (Tr. at 211.) The doctor reported as follows: "Examination reveals him to be comfortable. Neurologically he is grossly intact in the lower extremities. Straight leg raising is satisfactory bilaterally with satisfactory range of motion of his hips." (Tr. at 211.) Dr. Akbar concluded that Plaintiff "seems to be overall healing satisfactorily." ( Id.)
In early August 2001, Dr. Field reported that Plaintiff was improving "a little bit slower than I would anticipate." (Tr. at 219.) Plaintiff's gait was slow, but no muscle atrophy was seen. ( Id.)
In early November 2001, Dr. Akbar reported that Plaintiff was seen "in the office today with overall improvement. He says his back and legs are better though the back pain improvement is more than the leg pain improvement." (Tr. at 243.) Plaintiff reported to the doctor that he was walking and that his walking was limited, though better than before surgery. ( Id.) Plaintiff walked with a mild limp on the left side, and Plaintiff demonstrated left foot weakness. Range of motion in the hips was satisfactory. The doctor found that the previous fusion surgery was healing well bilaterally. The doctor encouraged Plaintiff to continue wearing a lumbosacral brace. (Tr. at 233.)
In mid-December 2001, Dr. Williams forwarded a medical examination report to the Michigan Family Independence Agency. (Tr. at 227-28.) The doctor stated that Plaintiff suffered from muscle spasms in both legs, as well as a long history of back pain. (Tr. at 227.) The doctor felt that Plaintiff's condition was deteriorating, was not remediable, and that Plaintiff was incapable of any lifting. (Tr. at 228, 260-61.)
In a January 24, 2002, letter to Dr. Field, Dr. Akbar reported that Plaintiff could walk one-quarter mile, although it caused pain. (Tr. at 242.) According to Dr. Akbar, "[e]xamination reveals him to be ambulating satisfactorily." ( Id.) Straight leg raising and range of motion testing were "satisfactory," and x-rays again showed the fusion surgery was healing well. ( Id.) In light of his complaints of pain, Dr. Akbar ordered further tests.
In early February 2002, Plaintiff underwent an MRI scan of the lower back at the request of Drs. Field and Akbar. The reviewing physician found no evidence of spinal stenosis or disc protrusion but did report the possibility of discitis at the rear central portion of the L3-4 disc space. (Tr. at 247-48.)
In late March 2002, Dr. Williams authored a handwritten note in which he stated that after review of Plaintiff's medical records and "my personal observation of his clinical state, . . . I find Lynn totally and permanently disabled." (Tr. at 292.)
In late May and again in late October 2002, Plaintiff underwent electromyographic testing performed by Dr. Mari Jurado at the request of Dr. Williams. According to Dr. Jurado, the May test results indicated that Plaintiff could "still [be in] a healing process." (Tr. at 250.) The results of the October 2002 testing were "not much changed though denervation [was] a little less." (Tr. at 249.) The doctor noted that in conditions such as Plaintiff's, "usually recovery period takes much longer[.]" ( Id.)
In late October 2002, Dr. Williams forwarded a questionnaire to an attorney. (Tr. at 295.) Two questions were asked. The first was whether Plaintiff's allegations of limitations in the ability to sit because of back pain were consistent with his condition, and the second was whether his reported symptoms rendering him incapable of bending, lifting, reaching, and carrying objects were consistent with his medical diagnosis. The doctor answered "yes" to each question. ( Id.)
At the administrative hearing, a vocational expert (VE) testified. She characterized Plaintiff's prior work to be heavy in exertion and semi-skilled. (Tr. at 114, 334.) In response to a hypothetical question presuming a person of Plaintiff's circumstances who could undertake sedentary work involving simple repetitive tasks which could be done either sitting or standing and which did not involve repetitive bending, twisting, or climbing, the VE identified 12,600 assembly; 2,700 machine operator; and 1,000 sorting positions consistent with these hypothetical conditions. (Tr. at 335.) The VE stated that none of these jobs would involve repetitive pushing or pulling with the legs. ( Id.)
On this record, I suggest that substantial evidence supports the findings of the Commissioner. In November 2000, Dr. DiBella reported to Dr. Field that Plaintiff had gained "approximately 70% relief" from his earlier pain. (Tr. at 160.) In mid-January 2001, Dr. DiBella reported that Plaintiff "had made already significant improvement in his overall pain levels." (Tr. at 159.) Subsequent to other tests and laminectomy surgery, Dr. Akbar found Plaintiff "to be comfortable." (Tr. at 211.) Straight leg raising tests were satisfactory, and Dr. Akbar found that Plaintiff "seems to be overall healing satisfactorily." ( Id.) Although Dr. Field reported that Plaintiff was improving "a little slower than I would anticipate" (Tr. at 219), Dr. Akbar found "overall improvement" in November 2001. Range of motion in the hips was found to be satisfactory, and the fusion surgery site was healing well. (Tr. at 243.) In January 2002, Dr. Akbar reported that Plaintiff could walk one-quarter mile, although not without discomfort. (Tr. at 242.) Straight leg raising tests and ambulation were again found to be "satisfactory." ( Id.) An MRI scan performed in February 2002 found no evidence of spinal stenosis or disc protrusion. (Tr. at 247-48.) Electromyographic testing in October of that year produced results consistent with a finding that Plaintiff was still in "a healing process." (Tr. at 250.)
I suggest that the ALJ's earlier described residual functional capacity analysis is consistent with these objective medical findings. In addition, the ALJ's findings also follow the opinions of the vocational expert which came in response to proper hypothetical questions that were appropriately consistent with the objective medical findings contained in the medical records available to the ALJ, and in particular, the findings and assessments of Drs. Field and Akbar. See Sias v. Sec'y of Health Human Servs., 861 F.2d 475, 481 (6th Cir. 1988); Hardaway v. Sec'y of Health Human Servs., 823 F.2d 922, 927-28 (6th Cir. 1987); Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In reaching his decision, the ALJ discounted the findings of Plaintiff's family physician, Dr. Williams, giving greater credence to the findings of Drs. Field and Akbar, both of whom are specialists. I suggest that this was not error, as the Commissioner's regulations "generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. § 416.927(d)(5). The regulations also state that "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion." 20 C.F.R. § 416.927(d)(3); see also Adams v. Peabody Coal Co., 816 F.2d 1116, 1121 (6th Cir. 1987) (per curiam) (affirming ALJ determination to give more weight to conclusions of pulmonary expert over two treating physicians). The record clearly indicates that Drs. Field and Akbar repeatedly saw Plaintiff and administered or prescribed standard diagnostic techniques such as straight leg raising tests, range of motion studies, nerve conduction studies, and MRI exams. These, I suggest, are clearly "medically acceptable clinical and laboratory diagnostic techniques" within the meaning of the Commissioner's regulations, thus entitling these doctors' opinions the "more weight" contemplated by the regulations. Moreover, Dr. Williams' findings that Plaintiff is "totally and permanently" disabled border upon the type of vocational opinions held in this circuit to be outside the experience of a treating physician. Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993). I further suggest that the ALJ correctly concluded that Dr. Williams' notation of impaired short-term memory (Tr. at 228) was insufficient to support a finding that Plaintiff suffered from a severe mental impairment. (Tr. at 18.)
Plaintiff also points to a disability finding made by the Michigan Family Independence Agency as support for a finding of disability in this case. (Pl.'s Mot., Dkt. 14 at 16; Tr. at 251-259.) However, a claimant is not entitled to social security disability benefits just because he is found eligible for worker's compensation or other similar state benefits. 20 C.F.R. § 404.1504; see Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990), Hampton v. Sec'y of Health and Human Servs., No. 91-6468, 1992 WL 188112, **1 (6th Cir. August 6, 1992) (unpublished opinion).
The ALJ did not find Plaintiff's allegations of disabling pain fully credible. (Tr. at 19.) Social Security regulations prescribe a two-step process for evaluating subjective complaints of pain. The plaintiff must establish an underlying medical condition and (1) there must be objective medical evidence to confirm the severity of the alleged pain rising from the condition, or (2) the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain. 20 C.F.R. § 404.1529(b) (1995); Jones v. Sec'y of Health Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991) (citing Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)). If a plaintiff establishes such an impairment, the ALJ then evaluates the intensity and persistence of the plaintiff's symptoms. 20 C.F.R. § 404.1529(c) (1995); Jones, 945 F.2d at 1369-70. In evaluating the intensity and persistence of subjective symptoms, the ALJ considers objective medical evidence and other information, such as what may precipitate or aggravate the plaintiff's symptoms, what medications, treatments, or other methods plaintiff uses to alleviate his symptoms, and how the symptoms may affect the plaintiff's pattern of daily living. Id.
In the present case, the ALJ acknowledged that Plaintiff had an impairment that could cause pain; however, he found that the severe and debilitating nature of Plaintiff's alleged pain was not fully credible and provided reasons for this conclusion. The issue is whether the ALJ's credibility determinations are supported by substantial evidence. An ALJ's findings based on the credibility of an applicant are to be accorded great weight and deference, particularly since the ALJ is charged with the duty of observing a witness's demeanor and credibility. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Under this standard, I suggest that there is insufficient basis on this record to overturn the ALJ's credibility determination.
After review of the record, I conclude that the decision of ALJ Ransom, which ultimately became the final decision of the Commissioner, is within that "zone of choice within which decisionmakers may go either way without interference from the courts," Mullen, 800 F.2d at 545, as the decision is supported by substantial evidence.
III. REVIEW
The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Sec'y of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n. of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to 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 concise, but commensurate in detail with the objections, and shall address specifically, and in the same order raised, each issue contained within the objections.