Opinion
Case Number: 00-CV-10126-BC.
April 30, 2002
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION TO REMAND FOR FURTHER PROCEEDINGS
Plaintiff has filed a complaint seeking review of an agency decision denying his application for Social Security Disability insurance benefits. The Court has reviewed the record and concludes that the Commissioner's decision that the plaintiff has the residual functional capacity to perform sedentary work is not supported by substantial evidence on the whole record. Further, the Court concludes that the proof of plaintiff's disability is strong and substantial evidence to the contrary is lacking, and further that there is no additional factual determination that need be made by the Commissioner.
Accordingly, as more fully set forth below, the Court will grant the plaintiff's Motion for Summary Judgment, deny the defendant's Motion to Remand to the Social Security Commissioner for further fact finding, vacate the decision of the Commissioner, and remand for an award of benefits.
I.
The plaintiff applied for Social Security Disability insurance benefits, claiming that he was disabled from all gainful employment because of a back injury he received initially in 1981, and which became aggravated in 1996 as a result of an automobile accident, evidentially resulting in his disability on the amended onset date of July 22, 1996. The plaintiff had worked as a machine tool maker and ran his own machine tool shop. He filed his claim on April 17, 1996, alleging that his low back injury progressively worsened and he became unable to work on December 30, 1995. As noted above, the plaintiff amended his claim to provide for an onset date of disability of July 22, 1996.
After the claim was denied initially and on reconsideration, Administrative Law Judge (ALJ) Dennis Runyon conducted a de novo hearing which resulted in a denial of the claim on March 26, 1997.
Thereafter, the Appeals Council remanded the case for further proceedings on October 2, 1998. An additional de novo hearing was conducted by ALJ Anthony C. Miller on August 23, 1999. ALJ Miller found that the plaintiff was not disabled on October 27, 1999, after employing the five-step process prescribed by the Commissioner, 20 C.F.R. § 404.1520, and concluded that the plaintiff had not engaged in substantial gainful employment since December 30, 1995 (step one); the plaintiff's chronic cervical and lumbar pain and bilateral carpal tunnel syndrome were "severe" (step two); there was no evidence that the plaintiff's impairment or combination of impairments met or equaled one of the impairments listed in the regulations (step three); and plaintiff could not perform his previous work as the owner and operator of a machine shop, machinist, and cutter grinder (step four).
At step five, ALJ Miller found that the plaintiff had retained the residual functional capacity to perform a limited range of sedentary work and that there was a significant number of those jobs in the regional economy available to him. The ALJ found, therefore, that the plaintiff was not disabled and denied benefits.
The Appeals Council denied review and the ALJ's decision became the decision of the Commissioner on February 26, 2000. The plaintiff filed a complaint in this Court seeking review of the decision on April 5, 2000.
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). The plaintiff filed a motion for summary judgment and the defendant filed a motion for entry of judgment reversing the Commissioner's decision with remand to the agency for further proceedings. On November 7, 2000, the Magistrate Judge filed his recommendation and report recommending that both motions be denied and that the decision of the Commissioner be affirmed. The plaintiff filed timely objections to the Report and Recommendation.
II.
The plaintiff's challenge is directed to the finding of the ALJ that the plaintiff could perform sedentary work. He claims that the decision is not supported by substantial evidence on the whole record, primarily because of the opinion of the plaintiff's treating physician, Jose Mari G. Jurado, M.D., a physical medicine and rehabilitation specialist. Dr. Jurado concluded that the plaintiff was disabled from all full-time employment, and the plaintiff claims that this opinion should have been given preclusive effect by the ALJ and the Magistrate Judge. He concludes that the Magistrate Judge was wrong in concluding Dr. Jurado's opinion that the plaintiff could not return to work due to total incapacitation was beyond the scope of the doctor's expertise.
The Commissioner agrees that the ALJ's evaluation of Dr. Jurado's opinion did not satisfy the mandates of its regulations. The Commissioner requests a remand so that the ALJ can give full consideration to the treating physician's opinion. The Magistrate Judge, however, rejected the view of both the plaintiff and the defendant that the matter ought to be remanded and concluded that the ALJ's opinion was supported by evidence in the record.
A.
The plaintiff has the burden to prove that he is disabled and therefore entitled to benefits. Boyes v. Sec'y of Health and Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
Under 42 U.S.C. § 1382c(a)(3)(A) (B), a person is disabled if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" and the impairment is so severe that the person "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity which exists in the national economy." Further, "[A] physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D).
To determine disability, the Commissioner has prescribed the five-step process noted above and set forth in 20 C.F.R. § 404.1520. However, if the plaintiff has satisfied his burden through the first four steps of the analytical process, the burden shifts to the Commissioner to establish that the plaintiff possesses the residual functional capacity to perform other substantial gainful activity. Varley v. Sec'y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). See also Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). "To meet this burden, there must be a finding supported by substantial evidence that plaintiff has the vocational qualifications to perform specific jobs." Varley, 820 F.2d at 779 (internal quotes and citations omitted).
The Commissioner's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Lashley v. Sec'y of Health and Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983). The reviewing court must affirm the Commissioner's findings if they are supported by substantial evidence and the Commissioner employed the proper legal standard. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). This Court may not base its decision on a single piece of evidence and disregard other pertinent evidence when evaluating whether substantial evidence in the record exists. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Thus, where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec'y of Health and Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The substantial evidence standard "presupposes that there is a zone of choice within which decisionmakers can go either way, without interference from the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (internal quotes and citations omitted). Thus, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
However, a substantiality of evidence evaluation does not permit a selective reading of the record. "Substantiality of the evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Id. at 388 (internal quotes and citations omitted). See also Laskowski v. Apfel, 100 F. Supp.2d 474, 482 (E.D.Mich. 2000).
B.
Although ALJ Miller concluded that the plaintiff could no longer perform his previous work, the ALJ found that the plaintiff retained the residual functional capacity to perform sedentary work. 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). 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 in an 8-hour work day, and sitting should generally total approximately 6 hours in 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.
The ALJ based his finding that the plaintiff could perform sedentary work on evidence provided by J.W. Lyons, M.D. Dr. Lyons performed an evaluation on the plaintiff at the request of the State of Michigan Disability Determination Service on November 5, 1998. He acknowledged that the plaintiff had some disc herniation in his cervical and lumbar spine, exhibited some "minimal facet joint disease in the lower lumbar region," and also had "minimal carpal tunnel syndrome bilaterally." He concluded that lifting was affected by these impairments, but that standing and walking was not. There is no evidence in the record that Dr. Lyons saw the plaintiff other than that solitary occasion.
Dr. Lyons' opinion is contradicted by the opinion of the plaintiff's treating physician, Dr. Jurado. Dr. Jurado saw the plaintiff over several years on multiple occasions, diagnosed disc herniations in the cervical and lumbar spine based upon imaging studies, prescribed certain rehabilitation regimens, and also performed a medical assessment of work-related activities. On January 26, 1999, Dr. Jurado completed a form in which he concluded that the plaintiff would not be able to perform sustained activities at a sedentary exertional level over an eight-hour work day without the need to lay down or take breaks due to pain or fatigue. He concluded that the plaintiff's ability to lift was limited to five to ten pounds, that the plaintiff could stand thirty to forty-five minutes without interruption during a work day, and that he could sit for fifteen to twenty minutes without interruption during an eight-hour work day.
The vocational expert testified that if the plaintiff had to take breaks and lay down during the work day, there were no jobs available in the national economy which the plaintiff could perform.
Of course, residual functional capacity is an "assessment of [the claimant's] remaining capacity for work," once his limitations have been considered. 20 C.F.R. § 416.945(a). It is meant "to describe the claimant's residual abilities or what the claimant can do, not what maladies a claimant suffers from — though the maladies will certainly inform the ALJ's conclusion about the claimant's abilities." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002).
The Magistrate Judge, in the Report and Recommendation, excused the ALJ's discounting of Dr. Jurado's opinion by citing Young v. Sec'y of Health and Human Servs., 925 F.2d 146, 151 (6th Cir. 1990), for the proposition that the Commissioner is not bound by the opinion of a treating physician, which may only be given "great weight" if it is supported by sufficient clinical findings consistent with the evidence. The Magistrate Judge also cited Hall v. Bowen, 837 F.2d 272 (6th Cir. 1988), for the proposition that a treater's opinion may be rejected if there is good reason to do so. In that case, the treating physician simply concluded that the plaintiff was "disabled," despite the fact that the conclusion was inconsistent with earlier evaluations and the treating physician said there were no significant changes in plaintiff's condition from the time of the earlier examination to the date of the disability report. Further, a consulting physician in that case had testified that the plaintiff was capable of performing sedentary work.
Finally, the Magistrate Judge relied on Casey v. Sec'y of Health and Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993), in which the treating physician stated that the plaintiff was "unemployable." The Court of Appeals held that the ALJ was not required to equate "unemployable" with "disabled," the latter being a term of art which is defined, augmented, and enriched by the statutes, regulations and SSRs.
The cases cited by the Magistrate Judge identify exceptions to the well-established general rule that a treating physician's opinion should be given greater weight than those opinions of consultative physicians who are hired for the purpose of litigation and who examine the claimant only once. See Farris v. Sec'y of Health and Human Servs., 773 F.2d 85, 90 (6th Cir. 1985); Jones v. Sec'y of Health and Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991).
Moreover, if a treating physician's opinion is not contradicted, complete deference must be given to it. Howard, 276 F.3d at 240; Walker v. Sec'y of Health and Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). See also Hardaway v. Sec'y of Health and Human Servs., 823 F.2d 922, 927 (6th Cir. 1987) (noting that "the expert opinions of a treating physician as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary."); Laskowski, 100 F. Supp.2d at 484.
C.
The question, then, is whether there is substantial evidence on the whole record from which to conclude that the Commissioner satisfied his burden of proving that the plaintiff could perform sedentary work, that is, work in which there is a need to stand or walk a total of no more than two hours of a eight-hour work day, and which involved lifting up to twenty pounds and carrying objects weighing up to ten pounds. The assessment of the plaintiff's capacity to perform work beyond his previous work must also be assessed in light of the vocational expert's testimony about available jobs.
Dr. Lyons opined that the plaintiff's disability interfered with his ability to lift and carry objects, but not with his ability to stand or walk. Dr. Jurado disagreed with this conclusion and provided an opinion which postdated Dr. Lyon's report by approximately three months in which Dr. Jurado placed substantial limitations on the plaintiff's ability to walk and stand for prolonged periods. More importantly, however, Dr. Jurado answered a question never posed to Dr. Lyons, that is, whether the plaintiff could perform sustained activities at the sedentary exertional level over a typical work day without the need to take a break, rest, or lay down due to pain or fatigue. Dr. Jurado stated that the plaintiff could not sustain himself through a complete work day, and there is no evidence in the record that contradicts this conclusion. Dr. Jurado was a treating physician, and unless there is good reason to discount his opinion, it should be given deference. The ALJ failed to do so or to provide an adequate explanation as to why the treating physician's opinion of the plaintiff's residual functional capacity should not be accepted. The Commissioner has acknowledged this failure, and suggests that a remand under sentence six of 42 U.S.C. § 405(g) for additional consideration is appropriate. The question of the proper remedy aside, the Court believes that both parties are correct in their observation that the ALJ failed to afford due regard to the treating physician's opinion, and the Magistrate Judge's contrary conclusion is rejected.
III.
Where proof of disability is strong and significant evidence to the contrary is lacking, the Commissioner's decision should be reversed and the Court is empowered to remand for an award of benefits. Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). A sentence six remand, on the other hand, is generally used when new evidence which was not properly considered by the ALJ comes to light, and "there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); Howard, 276 F.3d at 243.
In this case, the Court finds that there was ample evidence in the record of disability, and, in light of Dr. Jurado's opinion, the contrary evidence in the form of Dr. Lyons' report was not significant. Consequently, the Court finds that there are no factual issues that remain unresolved, no new evidence that warrants consideration, and that a remand for an award of benefits is appropriate. For these reasons, the Court declines to adopt the Report and Recommendation of the Magistrate Judge.
Accordingly, it is ORDERED that the plaintiff's Motion for Summary Judgment is GRANTED, and the defendant's Motion for Summary Judgment is DENIED. The decision of the Commissioner is REVERSED, and the case is REMANDED to the Social Security Commissioner for an award of benefits.