Opinion
No. 01-72100
December 9, 2002
I. Introduction
This is a Social Security case. Belinda A. Willis (Willis) appeals from the final determination of the Commissioner of Social Security (Commissioner) that she was not disabled at the time of her application and therefore was not entitled to supplemental security benefits and disability benefits (benefits).
Willis applied for benefits on December 13, 1999 under sections 216(i) and 223 of the Social Security Act, as amended, claiming she became disabled on October 27, 1998. Her application was initially denied. A hearing was held before an administrative law judge (ALJ) on October 11, 2000, where Willis was represented by counsel and testified. On December 13, 2000 the ALJ issued a decision denying benefits and finding Willis not disabled within the meaning of the Social Security Act because her impairments did not prevent her from performing past relevant work. More specifically, the ALJ found that Plaintiff "has the residual functional capacity [RFC] to perform work related activities except for work involving prolonged sitting or standing without change or position, constant repetitive use of the hands, or work which involves more than limited contact with coworkers, supervisors, and the public." (Tr. 20). The Appeals Council denied review of the ALJ's determination.
On June 14, 2001, Willis instituted this action for judicial review of the determination pursuant to 42 U.S.C. § 405(g). The matter was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), before whom Willis and the Commissioner filed cross motions for summary judgment. On October 31, 2002, the magistrate judge issued a report and recommendation (MJRR) that the ALJ's decision be upheld. The magistrate judge found that substantial evidence in the record supported the ALJ's findings that Willis retained the RFC to perform past relevant work.
II. Standard of Review
Judicial review of a Social Security disability benefits application is limited to determining whether the decision of the ALJ is supported by substantial evidence. Smith v. Secretary of Health and Human Serv., 893 F.2d 106, 108 (6th Cir. 1989). 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). The substantiality of the evidence must be based upon the record taken as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973).
III. Facts
The MJRR accurately sets forth the facts. Willis was fifty years old at the time of the ALJ's decision. She has an eleventh grade education and has worked as a cashier, surveillance monitor, and grocery bagger. She has not engaged in substantial gainful activity since her alleged disability onset date of October 27, 1998.
Willis says she experienced anxiety, panic attacks, depression, fibromyalgia, heel spurs and neuromas, back pain from the bottom of her spine, throbbing and burning in her arms and wrists, pain in her elbows and shoulders, and general pain all over her body. She also says she could not hold anything in her right hand. She had difficulty sleeping and napped during the day. She took pain medication three to four times a day and muscle relaxants at least four times a day, both of which caused her to be drowsy. The MJRR includes summaries of various doctor's reports. The four reports made after the alleged onset date all reported clinical test results in the normal range. (MJRR 5-6).
A vocational expert (VE) testified at the hearing. The VE said that a hypothetical individual with Willis's vocational profile and with her alleged limitations would have difficulties performing Willis's previous jobs because of her need to nap, panic attacks, and problems dropping things due to the pain in her hands. She also said, however, that a hypothetical individual with Willis's vocational profile could do surveillance monitor work if she was able to perform sedentary work that offered the option of sitting or standing, that would not entail constant or repetitive use of the hands, and that had limited contact with the public, co-workers and supervisors. She also testified that there are a significant number of unskilled, entry-level jobs that would require very little vocational adjustment for someone with that profile.
The ALJ found that Willis has possible fibromyalgia, possible deQuervain's tenosynovitis, major recurrent depression with panic attacks, and personality disorder, but he found that her testimony regarding the extent of her limitations was not substantiated by the credible medical evidence. The magistrate judge found substantial evidence supported the ALJ's conclusions. Willis's objections to the MJRR are discussed below.
IV. Analysis A. Video Monitor Job Requirements
Willis's first objection is that the magistrate judge erred by stating, "the VE further testified that such other jobs [surveillance monitor positions] did not require the need to attend a court proceeding or other hearings." (MJRR 13, n. 2). Willis motes that the VE merely said that in her experience placing individuals in surveillance monitor positions such testimony had not been required, and Willis highlights that the VE also said it was possible surveillance monitors might be called on as witnesses. (Tr 44). She argues that the ALJ's finding that her RFC did not allow for more than limited contact with the public prevents her from working as a surveillance monitor, as that might require testimony at trial.
Although such testimony might theoretically be required, the VE's testimony indicates that in general it is not in the job description for most such jobs. The VE's testimony, therefore, supported the ALJ's determination that Willis could perform her past work as it was generally performed in the economy.
B. Moderately Active Lifestyle
Willis's second objection is that the magistrate judge erred by stating, "a moderately active lifestyle supports the finding that plaintiff's fibromyalgia is not disabling." (MJRR 17). Willis drives her children to and from school, participates in physical therapy two days a week, and attends church weekly. She is able to dress appropriately, make beds, do the laundry, grocery shop with her children's assistance, and perform light household chores, though her husband does all the maintenance to their home. Willis says that her activities are done slowly and intermittently due to pain, so they do not indicate an ability to perform sustained employment on a full time basis.
The magistrate judge properly considered Willis's lifestyle as one factor in determining whether or not she is disabled. Although a moderately active lifestyle does not necessarily mean a claimant is not disabled, it may be some evidence to support an ALJ's finding that she is not. See Cohen v. Secretary of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (finding that even attending law school part-time and pursuing ballroom dancing did not constitute such an "active lifestyle" so as to preclude disability); but cf. Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001) (distinguishing Cohen and giving deference to the ALJ's consideration of claimant's shopping, light cleaning, driving, and exercise as indicators of a lack of disability). It was not improper to consider Willis's lifestyle, as the ALJ also reviewed other medical and circumstantial evidence in making his determination.
C. October 8, 1998 Deposition
Willis objects to the magistrate judge's reliance on Dr. Rosenberg's deposition dated October 8, 1998, because it was prior to the alleged date of disability onset, October 27, 1998, She argues that the magistrate judge should have instead considered Dr. Rosenberg's opinion from October 3, 2000, since it was made after the onset date.
The 1998 deposition is mentioned in a footnote of the MJRR and appears to be offered as evidence that Willis's descriptions of her limitations are not credible. A deposition taken before the alleged date of official onset of disability does not indicate Willis's medical status on the onset date, but the fact that her doctor did not at that time even mention the medical condition that she says was disabling less than three weeks later does undermine her credibility. The magistrate judge's block quotation of a 1996 evaluation by Dr. Davis serves much the same purpose.
The magistrate's comment was as follows:
. . . it is interesting to note that on October 8, 1998, a deposition for Plaintiff was held regarding a Workers' Disability Compensation Hearing (Tr 220). Dr. Rosenberg was deposed for that hearing. Nowhere in his deposition did he discuss Plaintiff's medical diagnosis, fibromyalgia, or even mention the word fibromyalgia (Tr 223-270). In fact, his diagnosis of Plaintiff at that time is consistent with the ALJ's findings in this case (Tr 17-20, 228-29). (R R, p. 17, footnote 5).
MJRR 17, n. 5.
Dr. Davis wrote that Willis exhibited exaggerated pain responses to very light palpitation and that her clinical tests were all normal. (MJRR 4, Tr. 152-58). He also said that her complaint of pain moving from one side of the body to the other "coincident with the time that she is to return to work" was "unusual" and noted that "[s]he is complaining of no other problems, but is insistent on taking time off of work." (MJRR 4, Tr. 152).
The magistrate judge's failure to consider Rosenberg's 2000 opinion was not error. The ALJ and the magistrate judge may have not given it much weight because it made conclusory statements about disability that were not substantiated by clinical findings. See 20 C.F.R. § 404.1527(e) ("Opinions on some issues . . . are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case); 20 C.F.R. § 404.1527(e)(1) ("A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled"); Cohen, 964 F.2d at 528 ("the ALJ is not bound by conclusory statements of doctors, particularly where they are unsupported by detailed objective criteria and documentation"). They might also have declined to highlight it because it was based on Willis's representations rather than clinical tests. Even though Dr. Rosenberg's 2000 opinion is some evidence that could support a finding that Willis is disabled, when the record is viewed as a whole the ALJ's determination that she was capable of performing past relevant work is still supported by substantial evidence.
"It would be our considered medical opinion based upon the representations made by the patient with respect to continuing pain and discomfort in the bilateral upper extremities, from the shoulders to the finger tips as well as her psychological status that she would at least at this time be unable to enter into gainful occupational functions." (Tr. 629).
VI. Conclusion
For the above reasons, the findings and conclusions of the MJRR are adopted as the findings and conclusions of the Court, as supplemented above. Accordingly, Willis's motion for summary judgment is DENIED and the Commissioner's motion for summary judgment is GRANTED. This case is DISMISSED.
SO ORDERED.