Case File 4: D. v. Comm'r of Social Security

Case File 4 from Seward, Tally and Piggott, P.C., Attorneys At Law in Bay City Michigan, is D. v. Comm'r of Soc. Sec., 2001 U.S. Dist. LEXIS 24691.  It is the United States District Court for the Eastern District of Michigan, Northern Division.  The case was decided on February 12, 2001

D. v. Comm'r of Soc. Sec., 2001 U.S. Dist. LEXIS 24691

Copy Citation

United States District Court for the Eastern District of Michigan, Northern Division

February 12, 2001, Decided ; February 12, 2001, Filed

Civil No. 00-CV-10182-BC

2001 U.S. Dist. LEXIS 24691 *


Subsequent History: 

Adopted, summ. judgment granted, in part, summ. judgment denied, in part, remanded, D. v. Comm'r of Soc. Sec, 81 Soc. Sec. Rep. Serv. 437, 2002 U.S. Dist. LEXIS 12228 (E.D. Mich. 2002) 


 [*1]  Magistrate recommended that plaintiff's motion to remand be granted in part and denied in part, and that the findings of the Commissioner be reversed and the case remanded for an award of benefits. 

Core Terms

disability, claimant, ankle, benefits, impairments, residual, substantial evidence, mental impairment, surgery, severe, regulations, fracture, administrative record, X-rays, eight hours, right ankle, limitations, walk, previous work, prior work, RECOMMENDATION, functioning, moderate, pounds, screw, pain, range of motion, workday, degenerative, undertake

Case File 4 Summary

Procedural Posture

In plaintiff claimant's lawsuit seeking review of defendant Commissioner of Social Security's decision denying her disability benefits, the claimant sought remand of the case for further findings and the Commissioner sought summary judgment.

Case File 4 Overview

The claimant sought social security disability benefits based upon an ankle fracture and a mental impairment. The Commissioner denied her benefits, and the administrative law judge (ALJ) upheld the decision, having determined that the claimant was not disabled. The magistrate found that the ALJ's decision was not supported by substantial evidence and recommended that it be reversed.

The ALJ's decision that the claimant was able to return to work despite her ankle injury was contradicted by the opinions of the claimant's treating physician and the Commissioner's consulting physician. The claimant's physician reported that her x-rays showed degenerated changes within her right ankle, and that her complaints of pain correlated with the x-rays. The Commissioner's physician found a right ankle fracture with impaired healing, that the claimant had had numerous surgeries, and she continued to walk with a limp. Contrary to the ALJ's finding that the claimant was not severely mentally impaired, the claimant's treating physician diagnosed her with a depressive disorder and a Global Assessment of Functioning score of 60, indicating moderate symptoms.

Case File 4 Outcome

The magistrate recommended that the ALJ's decision that the claimant was not disabled be reversed and that the matter be remanded for an award of disability benefits.

Case File 4 Opinion



In light of the entire record in this case, I suggest that substantial evidence does not support the Commissioner's determination that Plaintiff retained the residual functional capacity to return to her light and medium exertion prior work. Accordingly, IT IS RECOMMENDED that PLAINTIFF'S MOTION FOR REMAND TO AGENCY FOR FURTHER PROCEEDINGS BE GRANTED IN PART AND DENIED IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE DENIED, that the FINDINGS OF THE COMMISSIONER BE REVERSED, and the case REMANDED for an award of benefits.

 [*2] 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, the above-entitled matter was referred to this Magistrate Judge for the purpose of reviewing the Commissioner's decision denying Plaintiff's claim for a period of disability and disability insurance benefits. This matter is currently before the Court on Plaintiff's Motion to Remand to Agency for Further Proceedings and Defendant's Motion for Summary Judgment.

Plaintiff was 54 years of age at the time of the most recent administrative hearing, (Tr. at 169), and has completed a high school education. (Id.) Plaintiff's relevant work history included cashier work at Krogers for a little over one year, work for a food vending service for approximately two years, work for a pharmacy for one year, and cashier work for approximately five years for two other grocery stores. (Tr. at 62-67, 170-74.)

At the administrative hearing, a vocational expert (VE) characterized Plaintiff's prior work as a cashier at Krogers, Glens, B&C, and Revco as medium in exertion and unskilled. (Tr. at 185.) Plaintiff's work [*3]  at a pharmacy, for the food vending service, and as a waitress was described as light in exertion and unskilled. (Id.)

Plaintiff filed the instant claim on September 5, 1996. (Tr. at 52.) She alleged that she became unable to work on February 15, 1996. (Id.) The claim was denied initially and upon reconsideration. (Tr. at 37-38.) In denying Plaintiff's claim, the Defendant Commissioner considered an ankle fracture as a possible basis of disability. (Id.)

On July 21, 1998, Plaintiff appeared with counsel before Administrative Law Judge (ALJ) Dennis L. Runyan, who considered the case de novo.In a decision dated July 30, 1998, the ALJ found that Plaintiff was not disabled, as the ALJ concluded that Plaintiff could return to her prior work. (Tr. at 10-20.) Plaintiff requested a review of this decision on August 24, 1998. (Tr. at 7-9.)

The ALJ's decision became the final decision of the Commissioner when, after the review of additional exhibits, 1 (AC-1-2, Tr. at 157-65), the Appeals Council, on April 13, 2000, denied Plaintiff's request for review. (Tr. at 4-6.) On May 31, 2000, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable [*4]  decision.

B. Standard of Review

HN1 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 [*5]  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).

HN2 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. Secretary of Health & Human Services, 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 [*6]  might accept as adequate to support a conclusion." Id. at 681 (citing Consolidated Edison Co. v. NLFB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (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).

HN3 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. Secretary of HHS, 968 F.2d 1215, 1992 U.S. App. LEXIS 21748, 1992 WL 162557 (6th Cir. 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). [*7]  

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

HN4 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 [*8]  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.

HN5 The "claimant 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). "Benefits 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). One is thus under a disability "only if his physical or mental … impairments are of such severity that he is not only unable to do his previous work but cannot, considering his [*9]  age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy …." 42 U.S.C. § 1382c(a)(3)(B).

HN6 A claimant must meet all five parts of the test set forth in 20 C.F.R. § 404.1520 in order to receive disability benefits from Social Security. The test is as follows:

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.  [*10]  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 mid-February 1996, Plaintiff was seen at the emergency room of Bay Medical Center after falling and breaking her right ankle. (Tr. at 147.) Plaintiff had a history of a previous fracture to that ankle which "required surgery and [*11]  hardware." (Tr. at 148.) Plaintiff underwent the surgical repair of this fracture performed at Bay Medical Center by Dr. T. J. Cherwin, D.O. (Tr. at 147-48.) The doctor implanted a side plate and a total of five stabilizing screws to the joint area. (Tr. at 152.)

Electromyographic studies conducted in early May 1996 were indicative of mild abnormalities in the right tarsal tunnel of Plaintiff's foot. (Tr. at 97.) In early June 1996, Plaintiff reported increasing pain along with the fact that previous nerve block injections had not worked for more than a few days. (Tr. at 100.) Dr. A. H. Cohen conjectured that the surgical screw implanted during Plaintiff's previous surgery had become loose or that a fragment of the bone had become unstable. (Id.) The doctor felt that surgery to tighten the screw was indicated. (Id.)

In late June 1996, Plaintiff underwent the surgical repair of the tarsal tunnel of Plaintiff's right foot, as well as the repair and tightening of the surgical screws earlier implanted in her right ankle. (Tr. at 104-05.) The surgery was performed by Dr. Cohen at Bay Medical Center. X-rays taken by Dr. Cohen subsequent to this surgery indicated good alignment [*12]  of the fracture site. (Tr. at 100.) Dr. Cohen completed a certificate stating his opinion that Plaintiff would be unable to work for approximately six weeks after the date of this surgery. (Tr. at 101.)

In July 1996, Dr. Cohen reported that Plaintiff's condition was improving, and on July 10th, Plaintiff's cast was removed, and she was given instructions on range of motion exercises. (Tr. at 111.) In late July 1996, Plaintiff stated that she had recently twisted her left ankle. Minimal swelling was noted, and the doctor felt that she had good range of motion. He felt that if her symptoms persisted, x-rays would be indicated. The doctor stated that "as long as she is able to walk on it, I have advised activity to tolerance." (Tr. at 111.) On that same date, the doctor completed a certificate stating that Plaintiff would be unable to work for approximately one month. (Tr. at 112.)

In late August 1996, Plaintiff reported to Dr. Cohen that her left ankle was much improved but her right ankle had again become very sore. She stated that standing on it "for any length of time" brings on aching and burning sensations in the ankle joint. (Tr. at 113.) X-rays indicated degenerative changes [*13]  within the ankle joint. In late September 1996, the doctor reported that Plaintiff continued to complain of pain in the ankle joint and surrounding areas. He stated that "this correlates well with her x-ray findings. The doctor suggested the use of an ankle brace and "staying off her feet[.]" (Id.) The doctor was reluctant to undertake further surgery. (Id.) During this period, the doctor also continued to complete certificates indicating his view that Plaintiff was unable to work. (Tr. at 116.)

In October 1996, Dr. Cohen reported that Plaintiff was walking with the assistance of an AFO. The doctor reported that it was controlling her ankle and reducing the stress on both the joint and her foot. (Tr. at 117.) Plaintiff also had a new pair of shoes. (Id.)

In late October 1996, Plaintiff was seen by Dr. Leon Sidorek, D.P.M. (Tr. at 95.) The doctor described Plaintiff's previous fall and recounted that Plaintiff had recently fallen again in the same area as the first fall. The doctor found a painful enlargement of the fibula joint. (Id.) X-rays showed no displacement of the earlier fracture and that the screws and plates earlier implanted were not misaligned. (Id.  [*14]  ) The doctor diagnosed an ankle sprain and prescribed immobilization with minimal weight bearing. (Id.)

In late December 1996, Dr. Cohen reported as follows:

Patient returns to the office for reevaluation of previously fractured tibia of the right ankle and tarsal tunnel syndrome of the right ankle. She has severe post traumatic arthritis. She had been doing well up until the last couple of weeks. She blames the change in the weather, it has been very cold & damp of late. She does have a little swelling around the medical aspect of the ankle. X-rays were taken today. The screw is in proper alignment. Degenerative changes are noted within the medial portion of the ankle joint. Hypertrophic bone is noted. Lateral view demonstrates degenerative changes on both the anterior aspect of the joint as well as subchondral sclerosis within the subtalar joint. I have talked to the patient regarding further treatment options. I would not recommend any further surgery. I would continue with bracing. Patient is given a Rx for Darvocet as well as Motrin 800. Return visit 3 weeks. Activities to tolerance.

(Tr. at 117.)

In early June 1997, Plaintiff was examined at the request [*15]  of the Disability Determination Service by Dr. Bradley S. Haas, M.D. The doctor found normal range of motion in Plaintiff's left ankle but a 25 to 66% decrease in various aspects of the range of motion in Plaintiff's right ankle. (Tr. at 121.) The doctor summarized his conclusions as follows:

The patient has had a right ankle fracture with impaired healing. She has had numerous surgeries. She continues to have a moderate right sided limp. She had mild to moderate difficulty with lower extremity orthopedic maneuvers. There was no evidence of radiculopathy. She has diminished pinprick distal to the ankle and hypersensitive pinprick around the ankle itself. There is some modest loss of range of motion. There is no evidence of radiculopathy at the current time. She did not use an assistive device.

(Tr. at 122.)

During 1997, Plaintiff was also treated for glaucoma by Dr. D. V. Prendenville, M.D. She was prescribed eyedrops. (Tr. at 141-46.)

At the administrative hearing, a vocational expert (VE) testified. In response to a hypothetical question, based upon the limitations Plaintiff described during her testimony, the VE opined that such a person would not be able to undertake [*16]  work. (Tr. at 185-86.) The ALJ then posed to the VE a hypothetical question which presumed a person of Plaintiff's circumstances, who: "Occasionally can lift or carry 50 pounds, frequently 25 pounds. Stand and walk about eight hours in an eight-hour work day, sit about eight hours in an eight-hour work day. Pushing or pulling limited as to the lifting and carrying instructions limitations given above also. No use of right foot control. Never can climb ladders, ropes or scaffolds but occasionally can climb ramps and stairs, balance, stoop, kneel, crouch and crawl …." (Tr. at 186.) The VE felt that such a person could undertake many but not all of Plaintiff's prior jobs. (Id.)

E. ALJ Findings

The ALJ applied the Commissioner's five-step disability analysis to Plaintiff's claim and found at step one that Plaintiff was not engaged in substantial gainful activity since February 15, 1996. (Tr. at 19.) At step two, the ALJ found that Plaintiff's status post ankle fracture was "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. [*17]  (Id.) At step four, the ALJ found that Plaintiff's impairment would not prevent her from performing her past work. (Id.) The ALJ did not reach step five in his analysis, as he found Plaintiff capable of returning to her past work. (Id.)

F. Analysis and Conclusions

1. Legal Standards

In his Decision, the ALJ characterized Plaintiff's residual functional capacity in the following terms:

Claimant has the residual functional capacity of occasionally can lift/ carry 50 pounds, frequently 25 pounds, stand and/ or walk about eight hours in an eight hour work day, sit about eight hours in an eight hour work day, pushing and pulling limited only by the lifting ad carrying limitations set out above plus no use of right foot controls, never can climb ladders, ropes or scaffolds, but occasionally can climb ramps/ stairs, balance, stoop, kneel, crouch, and crawl, no manipulative, visual, communicative or environmental limitations, and no severe mental impairment ( 20 CFR 404.1545).

(Tr. at 19.)

After review of the record, I suggest that the ALJ utilized the proper legal standard when applied the Commissioner's five-step disability [*18] 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

a. Physical Impairments

As to Plaintiff's claims of disabling physical impairments, the ALJ concluded that Plaintiff had the ability to return to her prior work. This finding ended the ALJ's disability inquiry because Plaintiff could not make out a prima facie showing of disability. Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980), O'Banner v. Secretary of Health, Education & Welfare, 587 F.2d 321, 322 (6th Cir. 1978). HN7 The Commissioner's regulations state:

If you can do your previous work (your usual work or other applicable past work), we will determine that you are not disabled. However, if your residual functional capacity is not enough to enable you to do any of your previous work, we must still decide if you can do any other work ….

20 C.F.R. § 404.1561. This step "necessarily entails a comparison of the physical demands of the claimant's past relevant work with [his or her] present mental and physical capacity." Veal v. Bowen, 833 F.2d 693, 697 (7th Cir. 1987); [*19]  Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).

Thus, to determine whether a claimant can return to former jobs, the regulations require the ALJ to evaluate the claimant's "residual functional capacity." This term of art designates the ability to work despite physical or mental impairments. 20 C.F.R. §§ 404.1545, 416.945. Residual functional capacity combines a medical assessment with the descriptions by physicians, the claimant, or others of any limitations on the applicant's ability to work. Carter v. Heckler, 712 F.2d 137, 140 (5th Cir. 1983).

HN8 The Commissioner's regulations speak in terms of "your previous work" and define that as "your usual work or other applicable past work." 20 C.F.R. § 404.1561. The regulations, embodying as they do the concept of residual functional capacity, do not appear to require that a plaintiff must necessarily resume the exact same job at the exact same location as was the previous work. Rather, the regulations, emphasizing as they do residual functional capacity, appear to instead require that the claimant be able to return to the same kind [*20]  of work, instead of the same place. The Commissioner's formulation of this concept has been accepted in this circuit. Studaway v. Sec'y of Health & Human Servs., 815 F.2d 1074 (6th Cir. 1987).

Plaintiff seeks a remand for the purpose of "evaluating the current status of her orthopedic restrictions. (Pl.'s Mot. to Remand, Dkt. 17 at 10; Pl.'s Reply, Dkt. 23 at 5.) In these same pleadings, counsel for Plaintiff contends that "the record is void of evidence documenting an ability to perform medium and light work." (Pl.'s Mot. to Remand, Dkt. 17 at 5.) Counsel argues that "There is a distinct lack of evidence in the record documenting that Ms. D. would be able to perform work which entails walking or standing eight hours per day." (Id.) After summarizing the evidence in the administrative record, counsel maintains that "it is clear that substantial evidence fails to support Judge Runyan's decision." (Id. at 10.) Similarly, in his reply, counsel for Plaintiff argues that "The overall theme in this case is that the little evidence that is in the record does not support Judge Runyan's RFC [residual functional capacity] [finding]." (Pl.'s Reply, Dkt.  [*21]  23 at 5.)

After review of the administrative record, I suggest that the arguments of Plaintiff have merit and that substantial evidence fails to support the ALJ's conclusion that the Plaintiff retains the residual functional capacity to undertake either Plaintiff's prior work or the work identified by the VE. Dr. Cohen notes that Plaintiff complained of extreme pain whenever standing on any type of uneven ground. (Tr. at 113.) He reported that x-rays showed degenerative changes within Plaintiff's right ankle joint which was "understandable considering the amount of trauma that she previously has experienced to that area." (Id.) In September of 1996, the doctor reported that Plaintiff's complaint of pain "correlates well with her x-ray findings." (Id.) 

Three months later, the doctor reported "severe post-traumatic arthritis." (Tr. at 117.) The presence of hypertrophic 2 bone was noted at the same time, as well as degenerative changes and sclerosis. 3 (Id.) The Commissioner's consultative physician similarly found a "right ankle fracture with impaired healing. She has had numerous surgeries. She continues to walk with a moderate right sided limp." (Tr. at 121.) After noting [*22]  restrictions in the range of motion of Plaintiff's right ankle, the same physician noted "mild to moderate difficulty with lower extremity orthopedic maneuvers." (Tr. at 121-22.)

HN9 It is well settled in this circuit that a treating physician's opinion, when based upon objective evidence, is accorded significant weight. If adequately supported by objective findings, and if uncontradicted, the physician's opinion is entitled to complete deference. Harris v. Heckler,756 F.2d 431 (6th Cir. 1985); King v. Heckler, 742 F.2d 968 (6th Cir. 1984); Lashley v. Sec'y of Health & Human Servs., 708 F.2d 1048 (6th Cir. 1983), [*23]  Reed v. Secretary of HHS, 804 F. Supp. 914 (E.D. Mich. 1992). The objective medical findings described above, made both by Plaintiff's treating surgeon and the Commissioner's consultative physician, are, I suggest, exactly the type of consistent findings entitled by these cases to complete deference. Moreover, they are entirely inconsistent with the finding of the ALJ that Plaintiff possessed the ability to stand and/ or walk about 8 hours of an 8-hour work day" or "occasionally lift/ carry 50 pounds, frequently 25 pounds[.]" (Tr. at 19.) Dr. Cohen's finding in late December 1996 that Plaintiff could undertake "activities to tolerance" does not change this result, as nowhere does this physician opine that Plaintiff could "tolerate" the type of activities found by the ALJ.

b. Mental Impairments

As to Plaintiff's allegations of disabling mental impairments, the ALJ found no severe mental impairments. (Tr. at 21-23.) HN10 The Commissioner's regulations defining severity of impairments, codified at 20 C.F.R. §§ 404.1520(c) and 404.1521, have been construed as a de minimis standard. Murphy v. Sec'y of Health & Human Servs., 801 F.2d 182, 185 (6th Cir. 1986); [*24]  Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 690-92 (6th Cir. 1985); Farris v. Sec'y of Health and Human Servs., 773 F.2d 85, 89-90 (6th Cir. 1985). 

Under the prevailing view in this circuit, an impairment can be considered nonsevere only if it is a slight abnormality that minimally affects a claimant's ability to work regardless of age, education and experience. Farris, 773 F.2d at 90 and Higgs v. Bowen, 880 F.2d 860 (6th Cir. 1988). The Commissioner's regulations make clear that a claimant's age has no bearing on this determination. See 20 C.F.R. §§ 404.1520(c), 416.920(c) (1992). In addition, it is the claimant's burden to provide medical evidence that adequately documents the nature, severity and functional effects of any allegedly disabling impairments. Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 n. 2; 20 C.F.R. § 404.1512 (1990). When a claimant fails to meet the burden of proving that his or her impairment did in fact cause disabling functional limitations, the application is properly denied.

While there [*25]  is relatively little evidence in the administrative record with regard to mental impairments, the records of the Michigan Psychiatric Associates, who treated Plaintiff between at least September 1997 and April 1998, (Tr. at 135-40), indicate diagnoses of a depressive disorder and a GAF score of 60. (Tr. at 135.) HN11 "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 (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships; a scale of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks)  [*26]  or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with co-workers). Under these standards, the GAF score assessed by Dr. Richard D. Goldner, M.D., a psychiatrist who treated Plaintiff at Michigan Psychiatric Associates, is simply inconsistent with a finding of only "de minimis" mental impairments.

3. Remand

I suggest, for the reasons outlined above, that the ALJ's decision be reversed, as his finding that Plaintiff was capable of returning to her prior work is not supported by substantial evidence. The next question therefore before the court is whether a remand for the award of benefits is appropriate. HN12 A district court may reverse an ALJ's decision and immediately award benefits if the record adequately establishes a plaintiff's entitlement to benefits. Newkirk v. Shalala, 25 F.3d 316 (6th Cir. 1994). In cases where there is an adequate record, the Commissioner's decision can be reversed and benefits awarded if the decision is clearly erroneous, disability is overwhelming, or if proof of disability is strong and evidence to the contrary is lacking. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). [*27]  I suggest that on this record these conditions, particularly the latter, have been met.

As pointed out above, the administrative record consistently documents uncontroverted objective medical findings made both by Plaintiff's treating physician and by the Commissioner's consultative physician which are consistent with Plaintiff's descriptions of chronic pain and physical limitations, but entirely inconsistent with the ALJ's residual functional capacity findings. The record does not support a finding of mere de minimis mental impairments. As a result, I suggest that there are no unresolved factual issues relating to Plaintiff's claims of disabling impairments, that proof of disability is strong, if not overwhelming, and that in light of the consistent medical findings outlined above, evidence to the contrary is lacking. Accordingly, I suggest that remand for an award of benefits is appropriate. See Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994).


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 [*28]  (b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Howard v. Secretary of HHS., 932 F.2d 505 (6th Cir. 1991). 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. Smith v. Detroit Fed'n. of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991). 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.


United States Magistrate Judge

DATED: February 12, 2001



In this circuit, where the Appeals Council considers additional evidence but denies a request to review the ALJ's decision because 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.

  • 2

Hypertrophy is an abnormal enlargement of a part or an organ due to an increase in the size of its constituent cells. Hypertrophy is usually a compensating mechanism, to enable the organ to perform more work than its normal structure would allow. 3 J. E. SCHMIDT, M.D., ATTORNEYS' DICTIONARY OF MEDICINE H-236.

  • 3

Sclerosis refers to the hardening of a tissue or organ. 4 J. E. SCHMIDT, M.D., ATTORNEYS' DICTIONARY OF MEDICINE S-63.




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Seward, Tally & Piggott, P.C.

1009 Washington Ave.

Bay City, MI 48708

Phone: 989-892-6551

Fax: 989-892-1568

Hours: Monday-Friday 9:00 a.m.-5:00 p.m. and by special appointment

We are located across the street from the Post Office and Court House.