Opinion
Civil No. 04-CV-10163-BC.
February 10, 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 a tenth grade education and received a GED. (Tr. at 224-25.) Plaintiff's relevant work history included short periods of work as a laborer with temporary agencies, a short period working as a cab driver, and work in a furniture mill. (Tr. at 52, 226-227.)
Plaintiff filed the instant claims on May 22, 2001. (Tr. at 32-34, 122-23.) The claims were denied at the initial stages. (Tr. at 23, 124.) In denying Plaintiff's claims, the Defendant Commissioner considered disorders of the back and affective disorders as possible bases of disability. ( Id.)
On August 20, 2003, Plaintiff appeared with counsel before Administrative Law Judge (ALJ) J. Thomas McGovern, who considered the case de novo. In a decision dated January 23, 2004, the ALJ found that Plaintiff was not disabled. (Tr. at 11-22.) Plaintiff requested a review of this decision on March 15, 2004. (Tr. at 9.)
The ALJ's decision became the final decision of the Commissioner when, after the review of an additional exhibit (AC-1, Tr. at 217-18), the Appeals Council, on May 18, 2004, denied Plaintiff's request for review. (Tr. at 5-8.) On July 9, 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 his 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), 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 difference 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. Administrative Record
A review of the medical evidence contained in the administrative record and presented to the ALJ indicates that in late April 2001, Plaintiff was seen at St. Joseph Mercy Hospital complaining of chest pains. (Tr. at 80.) Electrocardiogram testing indicated minor irregularities consistent with a past myocardial infarction. (Tr. at 84.) Approximately four hours after admission, Plaintiff signed himself out stating that he simply wanted to make sure that he was not having a heart attack. (Tr. at 83.)
In mid-June 2001, Plaintiff underwent a psychiatric evaluation at the Southwest Counseling and Development Center. The doctor found no thought disorder nor any evidence of hallucinations or delusions. Plaintiff was described as fully alert and oriented. The examining physician felt that Plaintiff's affect and mood were stable and that his responses were fluent and spontaneous. (Tr. at 157.) The doctor diagnosed an adjustment disorder with mixed features and a personality disorder, and assigned Plaintiff a GAF score of 40. (Tr. at 158.) The doctor felt that further counseling was appropriate. (Tr. at 159.)
"Axis V is for reporting the clinician's judgment of the individual's overall level of functioning. This information is useful in planning treatment and measuring its impact and in predicting outcome. The reporting of overall [psychological, social, and occupational] functioning on Axis V can be done using the Global Assessment of Functioning (GAF) Scale." AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 2000). A GAF Scale of 70 to 61 indicates some mild symptoms; a scale of 51-60 indicates moderate symptoms; a scale of 41-50 indicates serious symptoms; a scale of 31-40 indicates some impairment in reality testing or communication or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.
In late June 2001, Plaintiff underwent a psychiatric examination conducted at the request of the Disability Determination Service by Dr. R. Hasan, M.D. The doctor reported that Plaintiff lived alone and got along "average" with his family. Plaintiff described "a few" friends and "limited contact" with his neighbors. Plaintiff was described as both cooperative and irritable during the examination. (Tr. at 91.) Dr. Hasan reported that Plaintiff regularly attended church, watched television, did light household chores, and was able to cook light meals. (Tr. at 92.) Plaintiff evidenced occasional memory problems, but the doctor felt that Plaintiff was in touch with reality. Plaintiff's self esteem was characterized as low, as was his psychomotor activities. Plaintiff denied any hallucinations or delusions but described feelings of sadness and depression, as well as mood swings. The doctor diagnosed a mood disorder due to back pain, which was described as a dysthymic disorder. (Tr. at 94.) A GAF score of 55-60 was assessed, and Plaintiff's prognosis was felt to be guarded. ( Id.)
Dysthymia is a disorder of the mood, less severe than a major depression. It is marked by loss of interest in activities previously enjoyed. 2 J.E. SCHMIDT, M.D., ATTORNEYS' DICTIONARY OF MEDICINE D-171.
In early August 2001, Plaintiff was seen at the request of the Disability Determination Service by Dr. Seth Cohen, M.D. (Tr. at 115.) No tenderness or obvious abnormalities were found in the lumbosacral spine. No tenderness, swelling or varicose veins were found in the legs. ( Id.) Examination showed essentially normal cranial nerve function. (Tr. at 116.) Plaintiff's sensory functions were found to be intact, and "fair" muscle tone was found. Plaintiff was able to touch his finger to his nose, and his gait was described as "steady without walking aide." ( Id.) Plaintiff showed normal range of motion in the dorsal lumbar spine. Plaintiff showed the ability to stand and bend, button clothes, tie shoes, dress and undress himself, open the door, make a fist, pick up coins and pencils and write. (Tr. at 119.) Reflexes were found to be normal, and straight leg raising tests were also normal. (Tr. at 120.) Plaintiff could walk on heels and toes, and his gait was found to be within normal limits. ( Id.)
In mid-January 2002, Plaintiff was seen at the emergency room of Henry Ford Wyandotte Hospital complaining of a headache. Neurologically, Plaintiff was found to be "fully intact." (Tr. at 171.) Gait and speech were normal, as were the cranial nerves. Plaintiff also complained of pain in the ribs but showed no abdominal discomfort. The pain in Plaintiff's ribs did not radiate. The doctor administered medications and diagnosed acute headache and exacerbation of low back pain. ( Id.) Plaintiff was discharged in stable condition. (Tr. at 172.)
Records of Henry Ford Wyandotte Hospital indicate that in late February 2002, Plaintiff fractured a finger of his right hand. (Tr. at 179.) X-rays taken the same day also indicated degenerative spurring in Plaintiff's lumbosacral spine without evidence of any fracture. (Tr. at 180.)
In late August 2002, Plaintiff was seen again at Henry Ford Wyandotte Hospital, complaining of abdominal pain. The examining physician was suspicious that Plaintiff may have gallstones. The doctor felt that Plaintiff was "stable" and could be treated as an outpatient. Plaintiff was administered medications and prescriptions and was discharged approximately four hours after admission in stable condition. (Tr. at 194-95.)
In late October 2002, Plaintiff was seen again at the Henry Ford Wyandotte Hospital emergency room, complaining of a cold. Plaintiff was administered cough syrup and prescription medication and was discharged in stable condition. (Tr. at 203.)
At the administrative hearing, a vocational expert (VE) testified. He classified Plaintiff's prior work as a cab driver to be semi-skilled and medium in exertion, as was Plaintiff's prior work sorting lumber. (Tr. at 254.) Plaintiff's prior work as a laborer was characterized as unskilled and medium, as was his prior work cleaning and as a packer. ( Id.) In response to a hypothetical question presuming a person of Plaintiff's circumstances who would be able to lift 10 pounds regularly and up to 25 pounds occasionally, sit for 2 hours at a time, stand for 1 hour at a time, and undertake activities either sitting or standing, which did not require overhead lifting, involving simple unskilled tasks, the VE identified 6,000 assembly; 5,000 packaging; 4,000 sorting; 2,000 security monitor; and 14,000 cashier and counter clerk jobs consistent with these hypothetical conditions. (Tr. at 255.) Similar sedentary jobs were also identified. (Tr. at 255-56.)
E. 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 alleged onset of disability. (Tr. at 21.) At step two, the ALJ found that Plaintiff's adjustment disorder and lower back pain 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. ( Id.) 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. (Tr. at 21-22.)
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 (3,000 positions), packaging (2,500 positions), inspection (2,000 positions) and security monitor (1,000 positions).
( Id.)
F. Analysis and Conclusions
1. Legal Standards
The ALJ determined that Plaintiff possessed the residual functional capacity to perform a significant range of light work. (Tr. at 21.)
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b).
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.
Plaintiff counsel's primary argument is that the ALJ erred in failing to find Plaintiff disabled on the basis of mental impairment. The Commissioner has promulgated a special technique to ensure that all evidence needed for the evaluation of such a claim is obtained and evaluated. This technique was designed to work in conjunction with the sequential evaluation process set out for the evaluation of physical impairments. See 20 C.F.R. §§ 404.1520a, 416.920a. Congress laid the foundation for making disability determinations when mental impairments are involved in 42 U.S.C. § 421(h), which provides:
An initial determination under subsection (a), (c), (g), or (I) of this section that an individual is not under a disability, in any case where there is evidence which indicates the existence of a mental impairment, shall be made only if the Commissioner has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.20 C.F.R. § 404.1520a explains in detail the special procedure and requires the completion of "a standard document outlining the steps of this procedure." 20 C.F.R. § 404.1520a(d). The regulation further requires the standard document to be completed and signed by a medical consultant at the initial and reconsideration levels, but provides other options at the administrative law judge hearing level. ( Id.) Under this procedure, the Commissioner must first make clinical findings, (i.e. the "A" criteria), as to whether the claimant has a medically determinable mental disorder specified in one of eight diagnostic categories defined in the regulations. See 20 C.F.R. Pt. 404. Subpt. P, App. 1, § 12.00A. Then the Commissioner must measure the severity of any mental disorder; that is, its impact on the applicant's ability to work. This is assessed in terms of a prescribed list of functional restrictions associated with mental disorders, (i.e. the "B" criteria).
The "B" criteria identify four areas which are considered essential to the ability to work. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00C. The first area is "activities of daily living." This area requires the Commissioner to determine the claimant's ability to clean, shop, cook, take public transportation, maintain a residence and pay bills. ( Id.) Under the second criterion, "social functioning," the Commissioner must determine whether the claimant can interact appropriately and communicate effectively and clearly with others. ( Id.) The third function, "concentration, persistence and pace," refers to the claimant's ability to sustain focused attention sufficiently long to permit the timely completion of tasks found in work settings. ( Id.) The final area, that of "deterioration or decompensation in work or work-like settings," refers to the claimant's ability to tolerate increased mental demands associated with competitive work. ( Id.)
If the first two "B" criteria receive ratings of "none" or "slight," the third a rating of "never" or "seldom," and the fourth a rating of "never," the Commissioner will conclude that the mental impairment is not severe, and therefore cannot serve as the basis for a finding of disability. 20 C.F.R. §§ 404.1520a(c)(1) and 404.1521. If, on the other hand, the "B" criteria indicate that the mental impairment is severe, the Commissioner must then decide whether it meets or equals a listed mental disorder. 20 C.F.R. § 1520a(c)(2). The Commissioner will determine that the claimant is disabled if the mental impairment is a listed mental disorder and at least two of the "B" criteria have been met. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02, et seq. If the severe mental impairment does not meet a listed mental disorder, the Commissioner must perform a residual functional capacity assessment to determine whether the claimant can perform some jobs notwithstanding his mental impairment. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The findings of a psychologist are relevant in establishing the existence and severity of a mental impairment, and a psychologist's evaluation of the disabling nature of a mental impairment need not be given less weight than that of a psychiatrist. Crum v. Sullivan, 921 F.2d 642 (6th Cir. 1990).
As to the "A" and "B" criteria, the ALJ adopted the findings of an agency examining physician. (Tr. at 19, 97-113.) More specifically, as to the "A" criteria, the ALJ found the presence of medically documented "affective disorders." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.09; see Tr. at 19, 100. Turning to the "B" criteria, the ALJ found that Plaintiff's mental impairment led to mild restrictions in daily living, moderate difficulties in maintaining social function and concentration, and no episodes of deterioration in work-like settings. (Tr. at 19, 110.) Based on these findings, the ALJ concluded that Plaintiff's mental impairment was "severe" and undertook the residual functional capacity analysis previously described.
In Vaughn v. Sec'y of Health Human Servs., No. 89-2259, 1990 WL 120967 (6th Cir. Mich., August 21, 1990), the denial of plaintiff's claim for benefits, based at least in part on mental impairments, was upheld where the record showed that although plaintiff had very low self-esteem and some mental retardation, he was nonetheless generally logical, cooperative, oriented, and capable of engaging in logical and abstract thought.
In Young v. Sec'y of Health Human Servs., 925 F.2d 146, 150 (6th Cir. 1990), the denial of plaintiff's claim for disability benefits based on mental impairments was upheld where the record showed that plaintiff washed dishes, cooked, shopped, read, watched television, and drove.
In Hogg v. Sullivan, 987 F.2d 328, 333 (6th Cir. 1992), plaintiff was treated for depression and argued that this condition served as a proper basis for a finding of disability. The denial of this claim was upheld as the record indicated that plaintiff was able to care for herself and her son, maintain a regular schedule of daily activities, attend church, undertake vocational training, visit relatives, and drive.
In Cornette v. Sec'y of Health Human Servs., 869 F.2d 260 (6th Cir. 1988), the ALJ found that plaintiff's condition met both the A and B criteria of Listed Impairment 12.04. At issue was the date of disability. In that case, there was testimony that plaintiff's wife had to assist him in bathing and putting on his clothes. The plaintiff twice tried to commit suicide, and plaintiff did nothing but lie in bed and watch television. Cornette, 869 F.2d at 264.
In Lankford v. Sullivan, 942 F.2d 301 (6th Cir. 1991), the court reversed a finding of nondisability and held that plaintiff there met both the A and B criteria of Listed Mental Impairment 12.08. In Lankford, there was abundant evidence of repeated suicide attempts, violent behavior and repeated lengthy hospitalizations for treatment of mental disorders.
In order to find a "marked" limitation in daily activities, or a "marked" difficulty in maintaining social functioning, a plaintiff must show that the mental impairment "seriously interfere[s] with the ability to function independently, appropriately and affectively." Foster v. Bowen, 853 F.2d 483, 491 (6th Cir. 1988). In Foster, 853 F.2d at 488, plaintiff was diagnosed with a dysthymic disorder and depressed mood. The denial of plaintiff's claim for disability was upheld based on plaintiff's testimony that she was able to cook, wash dishes, and do her laundry.
In this case, activities summaries completed as part of his application for benefits indicate that Plaintiff enjoyed fishing, going to church, and watching television. (Tr. at 73.) Plaintiff maintained his home, groomed himself consistently, went to church twice a week, visited relatives, and enjoyed playing pool. (Tr. at 75-76.) During the hearing, Plaintiff testified that he played cards, watched television, listened to the radio, read, prepared his own meals, shopped, went for walks, visited friends once or twice a week, and went out with his brother. (Tr. at 240-243.) The facts of this case, I therefore suggest, are closer to those of Foster, Young, Vaughn, and Hogg. Cornette and Lankford, on the other hand, stand in contrast to the instant case, as neither of the psychiatrists who examined Plaintiff found limitations similar to those found in these cases. Nor have I found in this record indications that mental impairments rendered Plaintiff with "no useful ability to follow work rules, deal with the public, interact with supervisors, cope with work stress or relate predictably in social situations[,]" as was the case in Walker v. Sec'y of Health Human Servs., 980 F.2d 1066, 1068 (6th Cir. 1992).
Plaintiff argues that based on the GAF scores assessed by the psychiatrist who examined him, Plaintiff must be found disabled. The ALJ, in his decision, considered at some length Plaintiff's GAF scores, their meaning, and their application on this record and found these scores not by themselves controlling. (Tr. at 19.) After review of this record, I cannot conclude that the ALJ erred. Plaintiff counsel also asserts that the number of jobs found by the ALJ as consistent with Plaintiff's residual functional capacity is by itself indicative of "decompensation in work-like settings". I suggest, however, this interpretation is not consistent with the applicable regulations. 20 C.F.R. § 1520a(c)(2), 20 C.F.R. Pt. 404, Subpt. P App 1 § 12.00C(4).
As to Plaintiff's allegations of disabling physical impairments, I also suggest that substantial evidence supports the ALJ's findings. The Commissioner's examining physician found no obvious abnormalities in Plaintiff's lumbosacral spine. (Tr. at 115.) Plaintiff's sensory functions were intact, and his muscle tone was considered "fair." (Tr. at 116.) Plaintiff evidenced normal range of motion in the lumbar spine and demonstrated the ability to undertake many common tasks. (Tr. at 119.) Straight leg raising tests and reflexes were found to be normal, as were other reflex tests. (Tr. at 120.) Physicians at the Henry Ford Wyandotte Hospital reported in mid-January 2002 that Plaintiff was neurologically "fully intact" and exhibited normal gait and speech. (Tr. at 171-72.) Although x-rays taken in late February 2002 showed evidence of degenerative spurring, no evidence of fracture or impingement of the spinal cord were seen. (Tr. at 180.) Although Plaintiff was again seen later that year at the Henry Ford Wyandotte Hospital, he was prescribed medications and released each time in stable condition. (Tr. at 194-95, 203.)
The ALJ's findings both as to Plaintiff's mental and physical impairments follow the opinions of the vocational expert which came in response to proper hypothetical questions that were appropriately consistent with the objective findings contained in the medical records available to the ALJ and summarized above. 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 addition, the ALJ's questions to the VE took Plaintiff's mental impairments into consideration, as he specifically limited his hypotheticals to activities involving simple tasks.
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). When weighing credibility, an ALJ may give less weight to the testimony of interested witnesses. Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir. 1982) ("a trier of fact is not required to ignore incentives in resolving issues of credibility."); Krupa v. Comm'r of Soc. Sec., No. 98-3070, 1999 WL 98645 at **3 (6th Cir. Ohio Feb. 11, 1999). 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 McGovern, 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 (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.