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McClain v. Colvin

United States District Court, E.D. Michigan, Southern Division

January 29, 2015

SILVIA McCLAIN, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of Social Security, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION[1]

PATRICIA T. MORRIS, Magistrate Judge.

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 and that Defendant's Motion for Summary Judgment be GRANTED.

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 was referred to this magistrate judge for the purpose of reviewing the Commissioner's decision denying Plaintiff's claim for Supplemental Security Income ("SSI") under Title XVI, 42 U.S.C. § 1381 et seq. The matter is currently before the Court on cross-motions for summary judgment. (Docs. 10, 14.)

Plaintiff Silvia McClain first filed for benefits on August 26, 2003, alleging that she became disabled on August 1, 1999. (Tr. at 150.) The claim was denied initially. ( Id. ) Plaintiff asked for a hearing in front of an Administrative Law Judge ("ALJ"), who would consider the application de novo. ( Id. ) ALJ Peter N. Dowd convened the hearing on June 30, 2004. (Tr. at 150, 153.) In his decision dated September 1, 2006, the ALJ determined that she was not disabled. ( Id. )

On February 1, 2011, Plaintiff filed the present claim for SSI, claiming that she became unable to work on June 1, 2002. (Tr. at 218.) The Commissioner considered whether Plaintiff had discogenic and degenerative back disorders, as well as affective disorders, and denied the claim at the initial administrative stage. (Tr. at 171.) Plaintiff appeared before ALJ Kathleen H. Eiler on May 17, 2012, for de novo review of her claim. (Tr. at 129-46.) In her decision issued June 29, 2012, the ALJ noted that absent new and material evidence that Plaintiff's condition deteriorated, she was bound by the prior ALJ determination that Plaintiff could perform a full range of light work. (Tr. at 122, 124.) She found that new evidence justified a more restrictive assessment of Plaintiff's capacities. (Tr. at 115-22.) Nevertheless, even under these restrictions, the ALJ found Plaintiff was not disabled. (Tr. at 110, 124.)

Two months later, Plaintiff requested a review of this decision. (Tr. at 105-06.) The ALJ's decision became the Commissioner's final decision, see Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on August 20, 2013, when the Appeals Council denied Plaintiff's request for review. (Tr. at 1-4.) On October 21, 2013, Plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision. (Pl.'s Compl., Doc. 1.)

B. Standard of Review

The Social Security system has a two-tiered structure in which the administrative agency handles claims and the judiciary merely reviews the factual determinations to ensure they are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The administrative process provides multiple opportunities for reviewing the state agency's initial determination. The Plaintiff can first appeal the decision to the Social Security Agency, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142 (1987). Once this administrative process is complete, an unsuccessful claimant may file an action in federal district court. Sullivan v. Zebley, 493 U.S. 521, 524-28 (1990), superseded by statute on other grounds, Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 1986) (en banc).

This Court has original jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final administrative decision. The statute limits the scope of judicial review, requiring the Court to "affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.'" Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). See also Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). The court's review of the decision for substantial evidence does not permit it to "try the case de novo, resolve conflicts in evidence, or decide questions of credibility.'" Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). See also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

"It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). See also Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (noting that the "ALJ's credibility determinations about the claimant are to be given great weight, particularly since the ALJ is charged with observing the claimant's demeanor and credibility'" (quoting Walters, 127 F.3d at 531 ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among medical reports, claimant's testimony, and other evidence."))); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) ("[A]n ALJ is not required to accept a claimant's subjective complaints and may... consider the credibility of a claimant when making a determination of disability."). "However, the ALJ is not free to make credibility determinations based solely on an intangible or intuitive notion about an individual's credibility.'" Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186, at *4).

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner's decision merely because it disagrees or because "there exists in the record substantial evidence to support a different conclusion.'" McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). See also Mullen, 800 F.2d at 545. The court can only review the record before the ALJ. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Substantial evidence is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). See also Jones, 336 F.3d at 475. "[T]he... standard is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Longworth, 402 F.3d at 595 (quoting Warner, 375 F.3d at 390). "The substantial evidence standard presupposes that there is a "zone of choice"' within which the Commissioner may proceed without interference from the courts." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).

A court's review of the Commissioner's factual findings for substantial evidence 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). "Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the reviewing court discuss every piece of evidence in the administrative record. Van Der Maas v. Comm'r of Soc. Sec., 198 F.Appx. 521, 526 (6th Cir. 2006); Kornecky v. Comm'r of Soc. Sec., 167 F.Appx. 496, 508 (6th Cir. 2006) ("[A]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.'" (quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999))).

C. Governing Law

"The burden lies with the claimant to prove that she is disabled.'" Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010) (quoting Foster, 279 F.3d at 353). Accord Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994)). There are several benefits programs under the Act, including the DIB program of Title II, 42 U.S.C. §§ 401-34, and the Supplemental Security Income ("SSI") program of Title XVI, 42 U.S.C. §§ 1381-85. 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 different eligibility requirements, "DIB and SSI are available only for those who have a disability.'" Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). "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 [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

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 that "significantly limits... physical or mental ability to do basic work activities, " benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that plaintiff can perform, in view of his or her age, education, and work experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston, 245 F.3d at 534. "If the Commissioner makes a dispositive finding at any point in the five-step process, the review terminates." Colvin, 475 F.3d at 730.

"Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work." Jones, 336 F.3d at 474. See also Cruse, 502 F.3d at 540. The burden transfers to the Commissioner if the analysis reaches the fifth step without a finding that the claimant is not disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that "other jobs in significant numbers exist in the national economy that [the claimant] could perform given her RFC [residual functional capacity] and considering relevant vocational factors." Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

The first ALJ, in 2006, found at step one that Plaintiff had not engaged in substantial gainful activity since the application date; her earnings from a new part-time position starting in 2006 were too low to constitute gainful activity. (Tr. at 152.) Next, he determined she had carpal tunnel syndrome in both hands and cervical strain, but not diabetes or hernias because neither imposed functional work limitations. ( Id. ) At step three, he found that none of the impairments, alone or combined, met or equaled a listed impairment. ( Id. ) Articulating the residual functional capacity ("RFC") before the final steps, the ALJ found that Plaintiff could perform light work as the regulations defined it. ( Id. ); see 20 C.F.R. §§ 404.1567(b), 416.967(b). The ALJ ended the analysis at step four, finding Plaintiff could perform her past work as a personal care attendant. (Tr. at 153.)

Finding new evidence, the second ALJ came to different conclusions. (Tr. at 112-24.) Plaintiff had not performed substantial gainful activity since the application date; but again, clear evidence showed she worked past that date, despite her conflicting denials, earning wages below the substantial gainful activity threshold. (Tr. at 112-13.) A fresh set of severe impairments were listed at step two: "degenerative disc disease; diabetes mellitus; obesity; affective disorder; and anxiety disorder." (Tr. at 113.) At step three, the ALJ considered various listing but found that none matched or equaled Plaintiff's impairments. ( Id. ) The ALJ also crafted a new RFC, restricting Plaintiff to a limited range of light work. (Tr. at 115-22.) At step four, the ALJ found no past relevant work. (Tr. at 122.) Finally, at step five, the ALJ determined that Plaintiff was not disabled. (Tr. at 123-24.)

E. Administrative Record

1. Medical Records

The first medical record is a vital signs flow sheet tracking various measurements from February to December 2010. (Tr. at 381, 501.) Pertinent to the present case, she generally rated her pain at level five, presumably out of ten, on a visual analog ("VA") sometimes it dipped to level four. ( Id. ) In February 2010 nurse practitioner Shauna Barbeau examined Plaintiff. (Tr. at 365.) The notes are difficult to decipher: they mention carpal tunnel surgery on Plaintiff's right hand, normal breathing, Plaintiff's request for Soma and Vicodin, chronic pain, depression, and insulin. ( Id. ) Plaintiff missed a March appointment but returned on May 11. (Tr. at 363.) Ms. Barbeau assessed chronic lower back pain; but Plaintiff had full range of movement without pain, normal muscle tone, intact strength and coordination, and stable gait. ( Id. ) Her mood was appropriate. ( Id. ) Plaintiff missed another appointment at the end of May. (Tr. at 362.) In July, her back still hurt, she feared a new hernia had developed, she requested narcotics, and Ms. Barbeau diagnosed depression. (Tr. at 360.)

X-rays taken in July confirmed spondylosis at discs L3-L4 and T8-T9, Ms. Barbeau's notes state. (Tr. at 359.) She planned to refer Plaintiff to a neurosurgeon. (Tr. at 358-59.) Radiology imaging in July 2010 found "a 15 degree levorotoscoliosis of the lumbar spine, with compensatory dextroscoliosis of the thoracic spine." (Tr. at 379.) Additionally, the results showed moderate-but likely significant-"degenerative disc interspace narrowing" at the L3-4 disc, moderate degenerative spondylosis at the same disc, and modest degenerative spondylosis in the middle and lower thoracic spine. (Tr. at 379-80.)

Plaintiff called Ms. Barbeau's office on July 26, stating that the Vicodin "help[ed] best" and requesting an immediate refill. (Tr. at 358.) Below the telephone notes, the receptionist wrote that Plaintiff needed a drug screen and "drug contract" before receiving the prescription. ( Id. ) Plaintiff arrived later that day to sign the contract and complete the screening. (Tr. at 357.) During the September visit, the notes again indicate stable gait and intact coordination and strength; her diabetes was "unstable, " however." (Tr. at 355.) Plaintiff also displayed a mass on her left clavicle. (Tr. at 355.) Scans and testing later found nothing concerning about this "palpable soft nonpainful lump." (Tr. at 377-78.)

Dr. Clifford Buchman conducted an orthopedic consultative examination on July 27. (Tr. at 394-99.) He focused on her back issues, but noted that she also complained about "recurrent abdominal hernias and diabetes" and made "vague" comments concerning "a history of carpal tunnel syndrome." (Tr. at 394.) The back pain had persisted for years, characterized by "numbness and weakness"; but Dr. Buchman thought the complaints were "vague." ( Id. ) Coughing, sneezing, and lying down exacerbated the pain; hot showers provided "some relief...." ( Id. ) Asked "what she is unable to do, she state[d] she has to do her activities." ( Id. ) Plaintiff explained that she worked as a home health provider, doing "housekeeping." (Tr. at 394, 396.) The report then grows somewhat confusing, whether through errors transcribing or Plaintiff's contradictory statements: "She is able to drive, do housework, watch TV, [and] get dressed. She states she needs assistance for showering and dressing; however, she recently helped one of her clients shower and dress by herself." (Tr. at 394.)

The physical examination was almost completely normal. (Tr. at 395, 398-99.) Plaintiff struggled when stooping and squatting, but the rest of the movements were satisfactory, including among others bending, pushing, pulling, carrying, sitting, standing, and climbing stairs. ( Id. ) Likewise, her reflexes were normal and she could walk on her heels and toes. (Tr. at 398-99.) Various special tests, such as Tinel's and Phalen's, were negative, and her straight-leg raising test was satisfactory. (Tr. at 395.) Dr. Buchman observed "evidence of scoliosis" in her lumbar spine and "right curvature of the thoracic spine." ( Id. ) He concluded, "[M]y opinion is that [Ms.] ...


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