The opinion of the court was delivered by: Hon. Gerald E. Rosen
Magistrate Judge R. Steven Whalen
OPINION AND ORDER REGARDING MAGISTRATE JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATION
At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on March 31, 2010.
This case has returned to this Court following a remand for further administrative proceedings in accordance with the Court's prior March 12, 2004 opinion and order. In its earlier ruling, the Court held that Administrative Law Judge ("ALJ") Alfred H. Varga had "fail[ed] to identify any appropriate, recognized grounds for discounting [Plaintiff Karen Young's] testimony regarding her sharply limited daily activities." (3/12/2004 Op. at 6, Admin. Record at 369.) The Court emphasized that "[a]lthough the ALJ need not credit Plaintiff's testimony in its entirety, he must explain his reasons for discounting Plaintiff's claimed limitations in her daily activities." (Id.) The Court then concluded:
If the ALJ determines on remand that Plaintiff's testimony lacks credibility in one or more respects, he should identify with particularity (i) the aspect(s) of Plaintiff's testimony being discounted, and (ii) the grounds relied upon in making this assessment (e.g., inconsistency with specific evidence in the medical record, or with another aspect of Plaintiff's testimony). (Id. at 6-7, Admin. Record at 369-70.)
Upon remand, the ALJ conducted a brief hearing, at which he asked Plaintiff just two questions. (See Admin. Record at 395.) The ALJ then issued a seven-page decision, determining that Plaintiff's "allegations regarding her limitations are not totally credible," and reaffirming his prior conclusion that Plaintiff was not entitled to disability benefits. (Admin. Record at 334-40.) Plaintiff again sought judicial review, and the parties filed cross-motions for summary judgment. In a Report and Recommendation ("R & R") dated May 21, 2007, Magistrate Judge R. Steven Whalen recommended that the Court deny Plaintiff's motion and grant the Defendant Commissioner of Social Security's motion. On May 31, 2007, Plaintiff filed objections to the R & R.
In the process of addressing the Magistrate Judge's R & R and Plaintiff's objections, the Court made the unfortunate discovery that Plaintiff's then-counsel, Jane R. Ware, had been representing Plaintiff despite the suspension of her law license for nonpayment of dues, and that this suspension pre-dated the commencement of this suit in April of 2006. Accordingly, following a status conference with Plaintiff and Defendant's counsel in attendance, the Court issued an April 28, 2009 order directing Plaintiff to secure substitute counsel. After she did so, the Court issued a May 21, 2009 order inviting the parties to file supplemental cross-motions for summary judgment, and requesting that the Magistrate Judge issue a supplemental R & R addressing these cross-motions.
On September 18, 2009, the Magistrate Judge issued a supplemental R & R, once again recommending that Plaintiff's motion for summary judgment be denied and that Defendant's cross-motion be granted. Plaintiff filed objections to the R & R on September 23, 2009, and Defendant filed a response to Plaintiff's objections on October 7, 2009. For the reasons stated below, the Court finds that the ALJ failed on remand to heed the Court's instructions in its March 12, 2004 opinion regarding deficiencies in the ALJ's initial assessment of Plaintiff's credibility, and the Court therefore remands this matter for further administrative proceedings before a different ALJ.
Although Plaintiff has raised a number of objections to the supplemental R & R, her principal contention is that the Magistrate Judge erred in determining that the ALJ's assessment of her credibility was within the permissible "'zone of choice' accorded the administrative fact-finder." (R & R at 18.) In its earlier opinion, the Court observed that this credibility assessment was "crucial" to the ALJ's determination that Plaintiff was ineligible for disability benefits because, as the vocational expert acknowledged at the initial hearing, Plaintiff's testimony, if fully credited, would preclude her from working. (3/12/2004 Op. at 5, Admin. Record at 368.) Yet, the Court found that the ALJ had not "perform[ed] a sufficiently rigorous analysis on this point," and had not "identif[ied] any appropriate, recognized grounds for discounting Plaintiff's testimony regarding her sharply limited daily activities," but instead had "suggest[ed] only generally . . . that the 'objective evidence of record' was inconsistent with Plaintiff's claimed need to rest frequently and limit herself to only one physical activity per day." (Id. at 6, Admin. Record at 369.) Accordingly, the Court remanded the case so that the ALJ could "identify with particularity (i) the aspect(s) of Plaintiff's testimony being discounted, and (ii) the grounds relied upon in making this assessment." (Id.)
In the supplemental R & R, the Magistrate Judge concludes that the ALJ properly performed this credibility assessment upon remand. In support of this conclusion, the Magistrate Judge cites the ALJ's references to such materials as (i) portions of the record indicating that Plaintiff continued to engage in various forms of physical activity after ceasing work as a school teacher, (ii) statements to her health care providers that she was feeling better and that her medications had relieved her pain, and (iii) test results and medical findings that were indicative of unimpaired short-term memory skills and inconsistent with a claim of disabling depression. (See Suppl. R & R at 14, 16-18.) In the Magistrate Judge's view, this record, as recounted in "two single-spaced pages" of the ALJ's latest decision, provides a sufficient basis for upholding the ALJ's credibility findings. (Id. at 18.)
The Court does not share this reading of the ALJ's decision. While there likely is a basis in the record upon which the ALJ could have discounted one or more aspects of Plaintiff's testimony, the ALJ's actual explanation for his credibility assessment falls short of the standard set forth in the Court's prior ruling. Specifically, the ALJ was directed to identify with particularity which aspects of Plaintiff's testimony he was discounting and his reasons for doing so. Instead, however, the ALJ first recounted any and all aspects of the record that could be viewed as indicative of Plaintiff's ability to work or engage in physical activity - comprising the bulk of the two single-spaced pages cited by the Magistrate Judge - and then concluded as follows:
A conclusion that one is credible is not a "right." A finding of credibility is something that must be earned in order to be established. In the instant matter, the claimant has not provided adequate nor sufficient testimony at either hearing to establish her credibility. To the contrary, the testimony offered was self-serving and without objective medical basis or support in fact. The undersigned as the "trier of fact," or the one who actually listens to the testimony, and by the powers of observation of the claimant's demeanor and ...