Opinion
CASE NO.: 01-CV-60236-AA
March 5, 2003
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that the court deny Plaintiffs Motion for Remand, grant Defendant's Motion for Summary Judgment, and enter judgment for the Defendant.
II. REPORT
This is an action for judicial review of the Defendant Commissioner's final decision denying Plaintiffs application for DIB. Plaintiff filed for benefits on August 19, 1997, alleging that he became disabled on December 1, 1988, due to difficulties sitting, standing, walking, using his right hand, pain in the left shoulder and hip, headaches, and inability to concentrate. (Tr. 63-65, 517-532). However, the Social Security Administration ("SSA") denied benefits initially and upon reconsideration. (Tr. 36-37, 41-49). A de novo hearing was held on June 7, 1999, before Administrative Law Judge ("ALJ") Paula M. Zera. See (Tr. 507-565). In a decision dated October 25, 1999, the ALJ found that although Plaintiff was unable to perform his past work, he could perform a limited range of unskilled sedentary work. See (Tr. 17-30). Accordingly, the Plaintiff was found not disabled. The Appeals Council declined review, and Plaintiff commenced this action for judicial review,
Plaintiff satisfied the Agency's income requirements for insured status through December 31, 1993. (Tr. 66).
A. PLAINTIFF'S CASE TESTIMONY AND MEDICAL EVIDENCE
For reasons of judicial economy and because it is unnecessary given the high quality of the parties' pleadings, this Court will articulate the relevant portions of Plaintiffs medical evidence and testimony in the Analysis. B. MENTAL HEALTH EXPERT'S TESTIMONY
See Section E., infra.
Dr. Jeffrey Ander, a clinical psychologist, testified as a mental health expert ("ME"). (Tr. 550-560). He testified that Plaintiffs record of mental health treatment shows "an episode of adjustment disorder with depressed mood . . . from the period of August 19[88] until February 1990." (Tr. 555-558). The ME stated that Plaintiffs adjustment disorder with depressed mood is best evaluated under the Agency's listing for affective disorders. (Tr. 557). The ME testified that record indications in 1991 and 1992 "indicate that [Plaintiff] was in good spirits and would not be consistent with a continued depressive disorder." Id. Queried as to the functional restrictions imposed on Plaintiffs functioning between August 1988 and February 1990, Dr. Ander testified that his difficulties in activities of daily living would have been "slight[,]" and his difficulties in social functioning would have been "[b]etween slight and moderate." (Tr. 557-558). Dr. Ander also testified that Plaintiff would have difficulties in concentration, persistence or pace "seldom [to] often[,]" and that he had had "[n]o" episodes of deterioration at work or in a work-like setting between August 1988 and February 1990. (Tr. 558). The ME testified that the evidence conflicts with regard to Plaintiffs drug and alcohol use in the 1990's. (Tr. 556). He testified that the record evidence could support a finding of "at least a mild substance addiction disorder." (Tr. 557). He clarified that if Plaintiff was drinking and using drugs after 1984, his difficulties in social functioning would be closer to "moderate," and his deficits in concentration, persistence or pace would be closer to "often[.]" (Tr. 559). The ME last testified that if Plaintiffs testimonial denial of excessive drinking or drug use after 1984 is credited, then he could not be considered to have had a substance addiction disorder during the relevant period. (Tr. 559).
C. VOCATIONAL EXPERT'S TESTIMONY
Michelle Ross, a vocational expert ("VE"), testified at the hearing. (Tr. 560-565), She testified that Plaintiffs past relevant work as an electrician and building mechanic would be classified as skilled and performed at the very heavy exertional level. (Tr. 561). The VE stated that Plaintiff would retain technical skills, such as "knowledge of wiring schematics, knowledge of electrical equipment and tools, [and] knowledge of basic electrical principles[,]" that would transfer to occupations in the sedentary and light exertional level. (Tr. 561-562). She identified "an electrical component tester[,]" as one such sedentary job that could be performed with a sit/stand option, (Tr. 562-563). The VE estimated that 4,800 electrical component tester positions exist in the regional economy. (Tr. 562).
The ALJ relied on a hypothetical posed to the VE that assumed Plaintiffs age, education, and work experience, with the residual functional capacity ("RFC") for sedentary work limited as follows: discretionary sit/stand option, no exposure to temperature extremes or humidity changes, and simple, unskilled work tasks. (Tr. 563). In response, the VE testified that the hypothetical claimant could perform a significant number of unskilled, sedentary jobs. Id. Specifically, she stated that there was over 11,600 suitable regional jobs in the following types and numbers: ticket seller, 2,500; packager, 5,600; and, bench assembler, 3,500. Id. Plaintiff declined to challenge the VE's testimony on cross-examination. (Tr. 564).
D. ALJ'S CONCLUSIONS
After reviewing the testimony presented at the hearing and the medical evidence in the record, the ALJ found that although Plaintiff suffered from impairments related to a history of fractures in the right wrist, left ankle, left knee, left femur and left hip; an adjustment disorder with depressed mood; history of osteomyclitis; and acromioclavicular arthritis, he did not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ found that Plaintiffs testimony of pain, limitations, and restrictions was "not fully credible." (Tr. 26). She determined that Plaintiff retained the RFC to perform the restricted range of unskilled sedentary work described above. (Tr. 26-27). As such, the ALJ concluded that Plaintiff is not disabled.
E. ANALYSIS
Plaintiffs Motion argues that the ALJ's adverse decision contains numerous errors that require a sentence four remand under 42 U.S.C. § 405 (g). See (Pl.'s Bf. in Supp. of Mtn, for Rmd. p. 3-12) (hereinafter Pl.'s "Brief"), Defendant's Motion contends that summary judgment is appropriate because the ALJ's nondisability decision is supported by substantial record evidence. See (Def.'s Bf. in Supp. of Mtn. for S.J. p. 11-20) (hereinafter Def.'s "Brief").
This Court's review of the ALJ's conclusions is limited. The findings of the ALJ regarding Plaintiffs disabled status are conclusive if supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405 (g) (1997). Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion.Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm'r. of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). It is more than a scintilla of evidence but less than a preponderance of evidence. Brainerd v. Secretary of Health Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This standard presupposes that there is a "zone of choice" within which the ALJ may make a decision without being reversed. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). Even if the court might arrive at a different conclusion, an administrative decision must be affirmed if supported by substantial evidence. Walters, 127 F.3d at 528; Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
With these standards in mind, the Court will evaluate each of Plaintiff's claims of error below.
1. ALJ's Constructive Reopening of March 1985 Application
Plaintiff contends that "[t]he ALJ unwittingly or otherwise" constructively reopened his March 1985 application "by discussing [record] evidence in [her] decision from [the earlier] denial . . . [and] then us[ing] that prior evidence as a foundation for the denial on the current claim." See (Pl.'s Brief p. 3) (italics omitted). Stated differently, Plaintiff contends that although the ALJ stated she was applying res judicata to the period between September 1984 and October 1988, she constructively reopened his prior unsuccessful March 1985 application when she discussed record evidence from that prior proceeding in her decision denying his instant DIB application. See Id. at 3-5. I disagree.
Plaintiffs claim is meritless for a number of reasons. First, there is no authority in the Sixth Circuit for Plaintiffs position that any time an ALJ references/discusses evidence submitted in support of a prior unsuccessful disability application, the ALJ has engaged in a de facto opening of that prior application. He contends that the ALJ's actions in this case amount to a "clear de facto or constructive re-opening" and that such actions amount to "fatal error" by the Commissioner. However, Plaintiffs citations provide no such clarity. Specifically, Plaintiffs citation to Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001), establishes only that, once a de facto reopening has occurred, the federal courts are able to review the previous application. Lewis is of little or no import here, where Plaintiff seeks to prove that a reopening has occurred. Plaintiffs intention to cite Wilson v. Califano, 580 F.2d 208, 212 (6th Cir. 1978), is well-received, but similarly ineffectual. Wilson held that the ALJ constructively reopened Wilson's first application when he considered new evidence and proceeded to rule on the merits of the entire record, from the beginning of the first application to the end of the second. Id. 580 F.2d at 212. This is not what the ALJ did in this case.
But Wilson underscores the point: here, the ALJ did not evaluate the merits of Plaintiffs March 1985 application. The ALJ considered portions of Plaintiffs pre-onset medical record only in connection with his present application, i.e., whether or not he was disabled between December 1, 1988 and December 31, 1993. Stated differently, the ALJ addressed the pre-onset medical record to lay a foundation for Plaintiffs impairments as of the onset period; the ALJ did not address the pre onset medical record to determine whether or not Plaintiff was disabled in the pre-onset period. The ALJ's opinion makes this clear, as does the transcript of the administrative hearing. See (Tr. 17-18, 26, 509-510, 512, 517, 519-521, 523-524, 528-529, 533-534, 539-541, 543-545, 547, 552, 554-559, 562-564).
As a result, the record shows that the ALJ refused to reconsider Plaintiff's prior application, and that she specifically stated that she was only considering the unadjudicated period of time between December 1, 1988 and December 31, 1993. Hence, where the ALJ refused to consider whether or not Plaintiff was disabled between 1984 and October 1988, and reviewed portions of that record period only to determine disability between December 1, 1988 and December 31, 1993, the Court is unable to conclude a de facto reopening has occurred. See Crady v. Sec. of Health Human Servs., 835 F.2d 617, 620 (6th Cir. 1987) (held that res judicata did not act to bar a claim where the ALJ evaluated the merits of the entire case as though it were not barred by a prior benefits claim and where the ALJ was authorized to reopen the case under the Secretary's regulations); Hamlin v. Comm'r. of Soc. Sec., 1996 WL 729287, *2 (6th Cir. Dec. 17, 1996) (holding that "[n]o reopening occurred" — where the ALJ considered portions of the medical record from a prior proceeding, "expressly stated" he found no reason to reopen that prior application, and "further stated" he was only considering the unadjudicated period — "and [that] Crady does not indicate otherwise.").
Lastly, and perhaps, most importantly, Plaintiff has not shown that the ALJ had the authority to reopen his March 1985 application, even if she had wanted to. As Defendant correctly points out, the ALJ need not have decided whether or not res judicata applied to the March 1985 application because Plaintiff never moved to reopen it. Plaintiff did not move to reopen the March 1985 application upon filing the August 1997 application because there was no basis to do so, See 20 C.F.R. § 404.988 (a), (b) (a claim can be reopened for any reason for up to one year after a decision; or may be reopened for "good cause" for up to four years). More specifically, Plaintiffs August 1997 DIB application was filed more than eight years after he failed to appeal the Agency's October 1988 decision denying his March 1985 DIB application. As such, not even the ALJ, assuming she had the intent, would have been able to reopen Plaintiffs March 1985 application. This is because the regulations allow the ALJ to sua sponte reopen a prior proceeding at this late stage only under certain circumstances; and, unfortunately, Plaintiff has not evidenced any of them here. See 20 C.F.R. § 404.988 (c)(1)-(4) (a decision may be reopened "at any time if" it was obtained by fraud, another person files a claim on the same earnings record and allowance of the claim adversely affects your claim, a person previously found to be deceased is later found to be alive, a claim is denied due to lack of proof regarding death and the person is shown to have been deceased, etc.). Hence, Plaintiff's allegations concerning the ALJ's potential reopening are fruitless; more than four years had elapsed since the October 1988 denial, the Secretary lacked discretion to reopen, and no de facto or constructive reopening could have occurred. See e.g., King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996) (stating that "whether the ALJ considered the earlier claim or not, reopening the case more than four years after the initial denial would exceed the authority of the ALJ.") (citation omitted); Coates v. Bowen, 875 F.2d 97, 101 (7th Cir. 1995) (finding that no constructive reopening can occur after four years because the concept "cannot extend beyond the scope of authority granted under the regulations, since '[r]eopening is a creature of regulation.'") (citation omitted); Kasey v. Sullivan, 3 F.3d 75, 78-79 (4th Cir. 1993) (ALJ could not have constructively reopened prior claim in the absence of a showing by Kasey that the regulations would permit reopening under 20 C.F.R. § 404.988 (a)-(c)); Crady, 835 F.2d at 620 (finding that a constructive reopening had occurred because the ALJ reviewed the merits of the prior proceeding and because the ALJ was able to do so under the time frame of the Agency's regulations governing reopening); Robinson v. Heck, 783 F.2d 1144, 1146 n. 3 (4th Cir. 1986) (after four year period has elapsed no reopening can occur absent one of the circumstances enumerated in 20 C.F.R. § 404.988 (c)); Hunt v. Weinberger, 527 F.2d 544, 548 (6th Cir. 1975) (recognizing that "[t]he [claimant's] fourth application [was] brought more than four years after the initial determination," that "the Secretary's regulations allow reopening only (under certain circumstances[,]" and they "'represent a permissible resolution of the conflict between the need to give some finality to prior factual determinations and the desire to accord claimants all procedural rights consistent with reasonably efficient agency operation[s].'") (citation omitted).
Based on the foregoing, Plaintiffs contention that remand under sentence four of 42 U.S.C. § 405 (g) is required because the ALJ "unwittingly or otherwise" constructively reopened his March 1985 application should be denied. In sum, the ALJ did not evaluate the merits of Plaintiffs past application to determine whether he was disabled prior to December 1, 1988; nor did the ALJ have the discretionary authority to reopen Plaintiff's March 1985 application under the Agency's regulations, See 20 C.F.R. § 404.988 (a)-(c).
2. ALJ's Reasons for Relying on Dr. Randall Sturm's Treatment Notes
Plaintiff contends that the ALJ's "terse analysis of the five letters written by Dr. [Randall] Sturm [between September 1997 and May 1999] explaining his rational for finding [Plaintiff] totally and permanently disabled" is inadequate. See (Pl.'s Brief p. 5). Specifically, Plaintiff contends that the ALJ ignored Dr. Sturm's post-insured letters by making a "boilerplate statement" that "fails to articulate even one piece of evidence [in] support [of her] sweeping conclusions." See Id. at 6. Plaintiff argues that "[t]he information [contained in] Dr. Sturm's letters provide the medically acceptable diagnostic and clinical techniques required in determining whether complete deference is given to a treating physician's opinion." Id. In other words, Plaintiff contends that the ALJ erred by failing to adopt Dr. Sturm's conclusions between 1997 and 1999 regarding his disability between December 1, 1988 and December 31, 1993, because "there is plenty of objective and clinical evidence contained in [the said documents] [—] [t]he only requirement is that the Commissioner read them." See Id. at 8. Lastly, Plaintiff argues the ALJ erred by affording more weight to Dr. Sturm's contemporaneous treatment notes between December 1988 and 1993, because "the evidence must be evaluated from the record 'taken as a whole'" and because the ALJ "cannot use 'sound bites' [sic] of evidence [from those treatment notes] and rely upon it as substantial when the activity is not continuous or done in spite of pain suffered by [Plaintiff]." See Id. at 9. I disagree. The ALJ's reasons for discounting Dr. Sturm's post-insured letters were proper and her rationale for doing so was well articulated.
In general, a treating physician's opinion is normally entitled to substantially greater weight than the opinion of a physician who has examined the claimant only once, Lashley v. Sec. of Health Human Servs., 708 F.2d 1048, 1054 (6th Cir. 1983), and if a treating physician's opinion is uncontradicted, it is entitled to complete deference. Harris v. Heckler, 756 F.2d 431, 434, 437 (6th Cir. 1985). However, if a physician's opinion is not supported by sufficient medical evidence, it is within the province of the ALJ to afford lesser weight to that opinion, or to credit another medical opinion over the unsupported one. See e.g., Garner v. Heckler, 745 F.2d 383, 390-391 (6th Cir. 1984);Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971). More specifically, a treating physician's diagnosis, as opposed to his or her opinion regarding disability, is to be given greater weight than a government physician's diagnosis only if the treating physician's diagnosis is supported by sufficient medical data. See 20 C.F.R. § 404.1529; Houston v. Sec. of Health Human Servs., 736 F.2d 365, 371 (6th Cir. 1984); Kirk v. Sec. of Health Human Serv's., 667 F.2d 524, 536-539 (6th Cir. 1981). A treating physician's unsupported conclusory reports are not dispositive of the issue of disability. Houston, 736 F.2d at 371; Duncan v. Sec. of Health Human Servs., 801 F.2d 847, 855 (6th Cir. 1986). When the medical record contains inconsistent or conflicting medical opinions, it is the ALJ's responsibility to weigh those opinions. See Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971). If the ALJ rejects the opinion of a treating physician, the ALJ is required to set forth some basis for that position. See Shelman v. Heckler, 821 F.2d 316, 320-321 (6th Cir. 1987). But, ultimately, the determination of disability is the prerogative of the Secretary, and not the treating physician. See Harris, 756 F.2d at 435;Kirk, 667 F.2d at 536.
In this case, Plaintiffs initial claim that the ALJ failed to articulate the reasons why she discounted Dr. Sturm's record disability conclusions during the post-insured period has no merit. His primary reason for disagreeing with the ALJ's rationale is that she did not summarize the contents of Dr. Sturm's five letters between September 1997 and May 1999 or Dr. Sturm's RFC indications made in a form submitted to the SSA in May 1999. See (Tr. 377-381, 384-385, 482-486). However, it is well settled that the ALJ need not summarize every piece of the record evidence, especially here, where the post-insured record is substantial. See e.g., Anderson v. Bowen, 868 F.2d 921, 924 (7th Cir. 1989) ("We have repeatedly held that a written evaluation of every piece of testimony and submitted evidence is not required."). The ALJ is only obligated to minimally articulate her rationale such that this Court can make an informed decision as to her logic and analysis on appeal. See Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984); Hurst v. Sec. of Health Human Servs., 753 F.2d 517, 519 (6th Cir. 1985). This is more than possible given clarity of the ALJ's decision. Specifically, the ALJ stated that the post-insured letters and record "opinions of Dr. Sturm . . . [were] carefully considered[,]" but that "when compared to Dr. Sturm's own office notes during the relevant period, they must be rejected since they are not well-supported by objective and clinical evidence[.]" (Tr. 21). Accordingly, Plaintiffs claim that the ALJ failed to sufficiently articulate her rationale with regard to Dr. Sturm's post-insured letters and record opinions is meritless.
Likewise, Plaintiffs contention that Dr. Sturm's five letters and his RFC report contained "plenty" of objective and clinical data to support his opinions of total and permanent disability, is meritless. Dr. Sturm's letters and RFC report between September 1997 and May 1999 contain scant opinion indicates, Dr. Sturm's letters opine disability based on diagnoses and contain no objective data or references thereto to allow the ALJ to evaluate the severity of Plaintiffs condition between December 1, 1988 and December 1993. See (Tr. 377-381, 384-385, 482). The same is true of Dr. Sturm's RFC report. It merely indicates Dr. Sturm's opinions with regard to Plaintiffs exertional capacity; however, it fails to append or reference any objective medical data to support his summary conclusions. See (Tr. 483-486). Also, it is impossible to determine the time frame of the objective indications Dr. Sturm does make in his reports; in other words, the overwhelming majority of Dr. Sturm's summary indications relate to his then present condition. See (Tr. 377-381, 384-385, 482). Consequently, the ALJ was fully justified in affording little or no weight to Dr. Sturm's post-insured opinions regarding disability because mere references to diagnosis alone does not aid the ALJ in making decisions with regard to the severity of Plaintiffs impairments. See Higgs v. Bowen, 880 F.2d 862, 863 (6th Cir. 1988) ("The mere diagnosis of [an ailment], of course, says nothing about the severity of the condition."); Foster v. Bowen, 853 F.2d 483, 489 (6th Cir. 1988) (diagnosable impairment not necessarily disabling); Landsaw v. Sec. of Health Human Servs., 803 F.2d 211, 213 (6th Cir. 1986) (emphasizing that claimant's treating physician "stated in [a] one-page letter that [claimant] suffers from heart enlargement, coronary artery disease, generalized arthritis, conversion reaction psychosis and obesity. However, the record contains no underlying medical findings,"); Houston, 736 F.2d at 366-367 ("The diagnosis of multiple medical impairments in [claimant's] hospital records . . . d[oes] not automatically entitle [claimant] to benefits absent proof of duration and disabling effect.").
Finally, the ALJ's discussion of Dr. Sturm's contemporaneous treatment notes between December 1988 and December 1993 establish the contrast that exists with Dr. Sturm's record disability conclusions between 1997 and 1999. See (Tr. 20-21), Plaintiff's disagreement with the ALJ's analysis is that she extracted what he inexpertly calls, "sound bites," to support her nondisability conclusions, In so doing, Plaintiff necessarily implies that Dr. Sturm's contemporaneous treatment notes reveal that he was disabled from performing substantial gainful activity during the relevant period. However, the ALJ's decision reveals that she summarized Dr. Sturm's treatment notes at length, covering two record pages; that her summary was completely accurate; and that it was not selective, Specifically, the ALJ wrote:
Office notes, lab reports, and a list of medications prescribed from the claimant's interest, Randall Sturm, Inc., are included in the record[,] . . . and cover the period from August 29, 1986 through May 7, 1999. On January 6, 1993, the claimant complained of a chronic headache and some left shoulder pain which was "off and on" for three months. ECG at that time was normal. As of April 29, 1993, office notes show that the claimant was doing fairly well except for shoulder pain. His weight had increased and Dr. Sturm advised the claimant to start walking and to diet. He also advised him to discontinue doing push-ups at that time. The claimant reported his headaches were better with Elavil. The claimant complained of chronic leg pain in June 1993. However, in August 1993, he advised Dr. Sturm he was feeling well and playing lots of golf. He indicated he had recently hurt his back pulling his golf clubs out of his truck.
Office notes from Dr. Sturm for November 8, 1993, list the claimant's conditions of hypertension, hyperlipidemia, and arthritis. On January 5, 1994, entries again note the claimant was doing well, except for an episode of gastritis. The claimant reported his symptoms had improved since being off of Feldene and Lopid. Dr. Sturm also noted that the claimant's left shoulder pain and his right wrist pain were gone; that he had chronic left buttock pain; and that he drank one or two beers per day. Dr. Sturm advised him to stop golfing because of his arthritis and to stop smoking. As of March 9, 1994, office notes indicate the claimant's arthritis was acting up; however, he was feeling much better. The claimant was apparently next seen by Dr. Sturm on October 17, 1994, at which time blood pressure readings were elevated and he complained of chronic arthritis pain in his right wrist and left hip. However, as of November 30, 1994, the claimant reported he was feeling well and that Elavil had helped his headaches. Notes indicate the claimant was "getting lots of exercise" and that his migraines were under good control.
(Tr. 20-21) (internal citations to exhibits omitted). Indeed, in this Court's opinion, it is clear that the ALJ did not emphasize the negative. This is because Dr. Sturm's treatment records during the relevant period, between February 1991 and January 1994, consistently show that Plaintiff leveled few complaints regarding his allegedly disabling impairments. See (Tr. 245-260). More specifically, those records reveal that Plaintiff was generally seen by Dr. Sturm only once every three months; that Plaintiff was almost always reported to be "doing fine," "doing well," or "feeling well;" that Plaintiff was regularly engaging in aerobic exercise or physical activities inconsistent with the disabling symptomology alleged; that Dr. Sturm's physical examinations were largely unremarkable (save intermittent left shoulder complaints); and, that Dr. Sturm's physical examinations reveal he was primarily concerned with Plaintiffs hypertension, which was not alleged to be debilitating. See Id. Therefore, the ALJ was entitled to conclude that "Dr. Sturm's office notes [during the insured period] clearly show that [Plaintiffs] condition [had] improved, [where he was] golfing, getting lots of exercise, doing push-ups, [etc.][,] [and where he] had shoulder pain 'off and on', and [was] 'feeling well' prior to December 31, 1993 [referring to his date last insured]." See (Tr. 21).
Based on the foregoing, substantial evidence exists to support the ALJ's determination that Dr. Sturm's post-insured letters and RFC report between 1997 and 1999 did not corroborate his disability conclusions during the relevant period between December 1, 1988 and December 31, 1993. Substantial record evidence also exists to support the ALJ's determination that Dr. Sturm's treatment notes were more consistent with the remainder of the record evidence in support of her RFC assessment, and that Dr. Sturm's treatment notes conflicted with his post-insured letters and RFC report between 1997 and 1999 which indicated Plaintiff was disabled. Lastly, the ALJ adequately identified and articulated these bases in support of her decision to reject Dr. Sturm's disability conclusions. Therefore, Plaintiffs claim that the ALJ inappropriately weighed Dr. Sturm's records and failed to explain the reasons why she rejected his disability conclusions is meritless and should be denied.
3. ALJ's Hypothetical Posed to the VE
Plaintiff contends that the ALJ's hypothetical was flawed under the Sixth Circuit's recent opinion in Howard v. Comm'r. of Soc. Sec., 276 F.3d 235 (6th Cir. 2002), because she failed to reference her finding that he suffered from a mental impairment of adjustment disorder with depressed mood. See (Pl.'s Brief p. 11-12). I disagree.
Plaintiffs argument that the ALJ's hypothetical did not provide for unskilled work is meritless. The ALJ specifically instructed the VE that "we [are] looking for simple, unskilled jobs." (Tr. 563).
Likewise, Plaintiffs argument that the ALJ's hypothetical was flawed because unskilled work "per say" [sic] cannot accommodate for an individual's nonexertional impairment(s) has no merit, The ALJ's decision to limit a hypothetical claimant to work that involves simple duties that can be learned in thirty days and requires little or no vocational preparation and judgment can be an appropriate accommodation for individuals who suffer from nonexertional impairments, i.e., creating limitations that affect the ability to meet job demands other than strength, such as cognitive problems involving intelligence, memory and concentration deficits, etc. See 20 C.F.R. § 404.1568 (a). Indeed, such accommodations are not uncommon in this Circuit. See e.g., James v. Sec. of Health Human Servs., 1994 WL 112879, *2 (6th Cir. April 1, 1994) ("the ALJ properly considered the impact of [claimant's] intelligence and illiteracy on a daily basis by ruling that [claimant] is limited to simple, unskilled entry-level tasks.");Mansoob v. Sec. of Health Human Servs., 1992 WL 97961, *3 (6th Cir. May 8, 1992) (ALJ's reference to unskilled sedentary jobs incorporated claimant's depression); Mansfield-Flat v. Comm'r, of Soc. Sec., 1999 WL 196536, *2 (6th Cir. March 22, 1999) ("the ALJ [properly] concluded that while [claimant's] mental impairments rendered her incapable of performing highly skilled or highly complex work, she retained the [RFC] for work of an unskilled nature."); Allison v. Apfel, 2000 WL 1276950, *4 (6th Cir. Aug. 30, 2000) ("[b]ecause [claimant's] nonexertional impairments only limited him to unskilled light work, the ALJ was correct to conclude that there remained a significant number of jobs in the economy that [claimant] could perform[.]").
Lastly, Plaintiffs argument that the ALJ's hypothetical ran afoul of the Howard decision is meritless. The ALJ adopted the ME's uncontradicted testimony that between October 1988 and February 1990, Plaintiff suffered from an adjustment disorder with depressed mood that would "seldom" to "often" cause him to have difficulties in concentration, persistence or pace. See (Tr. 21-23. 555-558), This conclusion sits perfectly with the record of Plaintiffs mental health treatment at Genesee Psychiatric Center (the only record of mental health treatment during the insured period) which reveals that Plaintiff's memory and concentration between August 1988 and February 1990 was found to be "fair" and "normal." See (Tr. 422, 427), In contrast, Plaintiff has marshaled no evidence to support his claim that the ALJ's decision to restrict him to the performance of simple, unskilled work, inadequately accommodated his memory and/or concentration deficits between October 1988 and February 1990. As such, there is no showing that the ALJ's RFC assessment or her vocational profile are contrary to the Sixth Circuit's decision inHoward. Therefore, Plaintiffs claim should be denied because the ALJ's reliance on the VE's testimony of suitable jobs provides substantial support for the ALJ's adverse decision.
To the extent Plaintiff may claim that the ALJ's hypothetical is nonetheless flawed because she did not explicitly reference his mental diagnosis between October 1988 and February 1990, this argument is meritless. In the Court's view, the facts of this case are on all fours with the Sixth Circuit's decision of Miracle v. Sec. of Health Human Servs., 2002 WL 1832642, *2-3 (6th Cir. Aug. 8, 2002) (stating no Howard type error has occurred where ALJ's RFC assessment and hypothetical are virtually identical to the claimant's records of mental health treatment). Therefore, the ALJ was not required to explicitly reference Plaintiff's diagnosis and, if she was, such an error is inconsequential and/or harmless. See Id.
4. Dr. Sturm's June 2000 Letter Submitted to the Appeals Council
Plaintiff contends that this Court should remand his case to allow the ALJ to consider a letter written by Dr. Sturm in June 2000 that was submitted for the first time to the Appeals Council. See (Pl.'s Brief p. 9-11).
Plaintiff does not address Dr. Sturm's June 4, 2001 letter obtained and submitted to the Appeals Council. See (Tr. 505-506). More specifically, Plaintiff does not assert that the case should be remanded due to Dr. Sturm's June 4, 2001 letter. See (Pl.'s Brief p. 9-11). As such, this Court will not address it further.
In the Sixth Circuit, a federal court may not uphold, modify, or reverse the decision of the ALJ based on evidence first submitted to the Appeals Council where the Council refused to review the case of the merits. See Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993). The court may remand the matter for further administrative proceedings in light of the evidence, however, if the plaintiff establishes that it is new and material and that there is good cause for his failure to present it in the original proceeding. See Cline v. Comm'r. of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996).
In this case, Plaintiff has failed to meet his burden. The letter from Dr. Sturm is not new or material because it merely reiterates why, in his opinion, Plaintiff was disabled between December 1, 1988 and December 31, 1993. See (Tr. 491). The letter sheds no light on the issue of whether Plaintiff was disabled between December 1, 1988 and December 31, 1993. See Id. It does not reference new evidence, nor does it cite objective data; it merely expresses in generalities Dr. Sturm's opinions about the treatment records that were already before the ALJ. See Id. As such, there is absolutely no showing that Dr. Sturm's letter would compel the Agency to reverse, much less, modify its final decision. See Sizemore v. Sec. of Health Human Servs., 865 F.2d 709, 711 (6th Cir. 1988) (to prove materiality, the plaintiff "must demonstrate that there was a reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with new evidence."), Lastly, Plaintiff provides no good reason for having failed to previously submit to the ALJ an overview of Dr. Sturm's opinions concerning his record submissions. Plaintiff states only that "if the ALJ had performed her job in a proper manner by reviewing the evidence from the record 'taken as a whole[,]' Dr. Sturm would not have had to explain the obvious." See (Pl.'s Brief p. 10). However, this is insufficient under the strict approach taken in the Sixth Circuit. See Oliver v. Sec. of Health Human Servs., 804 F.2d 964, 966 (6th Cir. 1986) (finding that the claimant did not have good cause for failing to acquire additional medical tests in advance of his hearing before the ALJ) (citing Willis v. Sec. of Health Human Servs., 727 F.2d 551, 554 (6th Cir. 1984)). If it were sufficient, complainants like Plaintiff could have their cases remanded under § 405(g) simply by obtaining and submitting letters from their treating physicians after their claims have been denied by the Agency. And if that were the case, Congress' disapproval of remands under § 405(g) would be thwarted. See Reed v. Sec. of Health Human Servs., 804 F. Supp. 914, 924 n. 9 (E.D. Mich. 1992) (Gadola, J.) (explaining the Sixth Circuit recognizes that "Congress sought to limit remands by either side" and that by taking a hard line approach to requests for remand, it "encourag[es] the parties to prepare their cases adequately at the administrative level in the first place [which, in turn, will] reduce . . . time consuming appeals and remands.").
Therefore, Plaintiff's request for remand should be denied because there is no showing that Dr. Sturm's June 2000 letter was new, that is was material, and that there was good cause for failing to submit it to the ALJ prior to the date of her decision.
III. CONCLUSION
For the reasons stated, I find that the ALJ's decision denying Plaintiff benefits is substantially supported in the record. Accordingly, I respectfully recommend that the court DENY Plaintiff's Motion for Remand, GRANT Defendant's Motion for Summary Judgment, and enter judgment for Defendant Commissioner.
Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636 (b)(1), the parties are hereby notified that within ten days after being served with a copy of the recommendation they may serve and file specific, written objections. The parties are further informed that failure to timely file objections may constitute a waiver of any further right of appeal to the United States Court of Appeals. United States v. Walters, 638 F, 2d 947 (6th Cir. 1981).
In accordance with the provisions of Fed.R.Civ.P. 6(b), the court in its discretion, may enlarge the period of time in which to file objections to this report.