*1 they testified extended had assurances CIMCO that Local 527 would not inter- COHEN, Appellant, Elizabeth L. fere with electricians after the effective date of the withdrawal from the IBEW’s SECRETARY OF DEPARTMENT Underscoring GPA. their is the HEALTH AND OF HUMAN
undisputed evidence that the electricians SERVICES, Appellee. vociferously protested when informed that they “voluntarily” terminating were their No. 91-2011. Sterling employment at the Chemical site. Appeals, United States Court of
The Board also found CIMCO's claim Sixth Circuit. Sterling targeted site would be Argued April a strike unless the electricians were termi- 1992. sig- nated was not well founded. Besides 7,May Decided 1992. nificant differences labor relations be- Rehearing As Amended on Denial of facility and the tween that Union Carbide June 1992. plant, prior the Board noted that Rehearing Second Denied June GPA, IBEW’s withdrawal from the Ster- ling applications filed site electricians
work as electricians and non-union assured officials
CIMCO that Local 527 administra- promised
tors they had not to interfere if
continued to work there. sum,
In supports substantial evidence
the Board’s conclusion that CIMCO termi- solely
nated bring pres- the electricians
sure on the IBEW to reverse its withdraw- GPA,
al from the and that this action was bargaining
destructive of their collective
rights under 7 of the Act.
V.
CONCLUSION
Because the NLRB did not abuse its cases,
discretion in these three we enforce
its entirety. orders their overtly picket
facilities would not be manned Local 527 never the Local 527 threatened to similarly Sterling plant, apparently electricians. This without Chemical because ample opportunity merit. CIMCO had to cross- the incumbent electricians there would have laying replacement they examine these witnesses in permanent founda- risked had struck. contrast, legitimate necessity tion for its business defense. no incumbent there were electri- fundamentally, facility, More CIMCO overlooks cians at the Union Carbide thus allow- endanger- ing substantial differences labor conditions between to strike there without union instance, at the sites. two For the ALJ found of its members. *2 Benjamin (argued), Levine, Benja-
Gerald min, Tushman, Bratt, Stein, Jerris and (briefed), Mich., Southfield, plaintiff-ap- pellant. (argued), Dept,
Edward L. H Koven of & HS, 111., Chicago, defendant-appellee. NELSON,
Before: KEITH and Circuit TIMBERS,* Judges; and Senior Circuit Judge.
TIMBERS, Judge. Circuit Appellant Elizabeth L. Cohen commenced pursuant this action in the district court (the 205(g) Security Act Social (1988), Act), amended, 405(g) as U.S.C. § a final decision of the Secre- for review of (Secre- tary of Health and Human Services tary) application denied her for dis- which ability insurance benefits. The September 1989 decision decision is the (AU) judge which of an administrative by the final when it was affirmed became Appeals July Council DeMascio, court, district Robert E. District Magistrate referred the case to Judge, Cooke, who, May in her Marcia (a copy of Report and Recommendation Appen- opinion to our which is attached Timbers, * TheHonorable William H. Senior Cir Appeals cuit of the United States Court of Circuit, sitting designation. for the Second
dix, 532-35), pages ney. When Dr. Cheney concluded that the Sec- examined Cohen retary’s sup- denial of benefits was not fatigue syn- included chronic drome, ported by urinary infections, substantial evidence and recom- tract vision im- summary judgment grant- loss, pairment eye, weight cognitive mended that in one *3 appellant’s Magistrate ed in problems, sleep favor. function mouth ulcers and convinced that Cohen was disturbances. Cohen also had elevated Epstein-Barr “clearly by virus) disabled” vi- (Epstein-Barr antibody EBV titers. accompanying fatigue syn- rus and chronic Cheney thought might suffering Dr. Following timely objection by the genetic drome. from a un- immunodeficiency Secretary, the district court reviewed the spontaneously by masked either some rejected Magistrate’s Report case and opin- sort of viral infection. He was of 25, 1991, July On and Recommendation. ion “I pub- that believe meets the [Cohen] held that the syndrome the district court fatigue lished criteria for chronic supported by may denial of benefits was sub- evolving multiple and she also be scle- and affirmed the complication stantial evidence Secre- syn- rosis as a drome____ this tary’s very decision. I seriously doubt that Elizabeth will Cohen be able to maintain follow, For the reasons that we reverse employment economy given in the national judgment of the district court and re- length and of her illness.” mand for an award of benefits. Johnson, internist, Dr. Neil an examined
I. 14, September diag- Cohen on 1988. He only infection, We shall summarize Epstein-Barr those facts and nosed Chronic virus prior proceedings necessary believed to an localizing but stated that is no “[t]here understanding ap- of the issues raised on neurological motor weakness. Gross func- peal. tions are I intact. would be unable to neuropsychiatric detect minor deficiencies
(A) patient. very intelligent in this She is and even a decrease function leaves her well Appellant 24, July Cohen was born on Johnson, average.” however, above Dr. years 1938. She was 51 old at the time of neuropsychological recommended a evalua- the AU’s decision. holds a She doctorate tion, likely which “would document various degree Sociology in Educational which she neurological mental fur- deficiencies.” He Wayne received from State reported fatigue ther that marked and the 4,1984, 1977. From 1978to October development of mental deficiencies were Wayne worked as Assistant to the Dean at major problems “appears it and that that salary State School of Medicine at a disabling this illness is most to this individ- $45,000 year. Adjunct She also served as ual.” Sociology Assistant Professor of Medical at during State School of Medicine 30, 1989, On June Cohen was examined period.
that
Hess,
by
expert
fatigue
Dr.
an
chronic
syndrome
dysfunction.
Cohen claims benefits for the
Oc-
and immune
He
through
reported
tober
June
1988. She
that Cohen had another exacer-
engaged
gainful
23, 1989,
syndrome
has not
ac- bation of her
on March
4, 1984,
fever,
tivity
during
since
experienced
October
when she left
which she
head-
ache,
positions Wayne
University.
rate,
rapid
impairment
at
heart
further
function,
alleges
stopped working
weight
She
of mental
and
loss. He
experiencing
reported
time because she was
further
Cohen’s deterioration
associated with
in cognitive
Chronic
function was most noticeable
virus, including
dyslexia (misinterpreting printed
stein-Barr
as visual
syndrome, memory impairment,
words)
difficulty
swollen
rea-
non-verbal
glands,
“high
and balance disorders. The
soning.
earliest
He concluded that Cohen’s
report
intelligence
possi-
on Cohen’s condition is an
makes it
level of native
August
report by
compensate
Dr. Paul
Che- ble for her
for some of these
losses,
also
has
was examined
but the deterioration
Lois
functional
P.
Brooks, Ed.D.,
the losses
psychologist
reached a
where
are be-
and vocation-
her____
obviousj
coming
Ms.
more
even
expert.
al
Brooks
concluded
Co-
experience extreme fa-
Cohen continues to
still perform
hen could
unskilled industrial
tigue
tion____
by minor levels of exer-
exacerbated
sedentary jobs
assembling, packag-
such as
simple
gro-
tasks such as
Even
ing,
sorting,
that there
ap-
were
cery shopping
energy
can overtax
level
12,000
proximately
of these
in the
nearly
faint
her to become
cause
metropolitan Detroit area.
collapse
needs
spot.
on the
She
2-3 hours
attempted
Cohen has
to remain active
sleep
to recover from
induced
despite
illness. In
she founded a
away from her home.
re-
trips
short
She
support group
suffering
national
for those
*4
night
quires
sleep
plus
of
at
4-
10-12 hours
Epstein-Barr
from the Chronic
virus. Her
day____
sleep during
6 hours of
There
group
pri-
involvement with-the
consisted
is no
that Ms. Cohen’s health and
doubt
marily
talking
telephone
ap-
of
on the-
fur-
capacity
functional
has deteriorated
per
proximately
to three hours
two
week
The probability
ther in
months.
recent
suffering'
others
with
from Chronic
experience significant re-
that she will
Syndrome. In
stein-Barr
1988 Cohen with-
quite
mission
of her
is
of
group
drew from the
her
when
condition
though periodic
small
fluctuations in
even
worsened.
expected.”
can be
According
testimony,
her own
from
July 1989,
In
also was examined
Cohen,
profession-
1984 to 1987
was a
who
Onischenko,
by
prac-
a
Tarras
licensed
dancer,
a
al ballroom
danced twice week
ticing
performed a
psychologist, who
bat-
for three to
at a time.
four hours
From
tests,
tery
including
of neuropsychological
1989,
March
continued
1987 to
danc-
IQ
a WAIS-R test and the Halstead-Reitan
ing, though
ap-
a reduced schedule of
at
battery,
Neuropsychological test
to evalu-
proximately twice a month for an hour at a
“high
ate Cohen’s
order” brain function.
her condition
time. She testified that
wors-
that, although
Dr. Onischenko found
Co-
“it took a
ened
where
whole
IQ
performance
hen’s
on the WAIS-R
day
resting
go
out for an
of
to be able
112,
performance
test —test result of
very
I
dancing.
hour of
And
soon realized
109, respec-
scores of 104 and
verbal
dancing
days
hour
meant two
that an
tively
placed
“high
her in the
aver-
—still
bed,
stopped
I
my
doing
so
flat on
back
age”
ability,
range of intellectual
the dif-
that.”
IQ
ference
Per-
between her Verbal
IQ
“suggested that
formance
scores
1986,
part-time
[Co-
Cohen enrolled
hemisphere
right cerebral
is more hen’s]
Law School. There-
Detroit
compromised
the contralateral cortical
than
for six hours
she
that school
after
attended
region.
In terms of functional considera- per
attended classes
semester. Cohen
tions,
per-
areas
deficit
the identified
days
12:30 and 4:30
a
between
three
week
experi-
that
will
suggest
formance
[Cohen]
afternoon,
homework for
in the
and did
daily
problems managing
ence
activities
day. At
approximately two hours
large
to a
on
dependent
which are
extent
July
hearing
the AU
time of her
before
cognitive
skill areas.” Dr.
identified
1989,
31,
completed successfully
Cohen had
results
concluded that
test
Onischenko
year of law school
slightly over one full
“suggested
currently
man-
client
symp-
her
Despite
classes.
exacerbation
ifesting
dysfunctions
high-
of her
certain
1989,
passed
law
in March
toms
relationships est-order brain-behavior
May
school final exams
daily
will debilitate her
functional status
Ms.
suggested]
...
Cohen will
[and]
(B)
experience major
accomplish-
obstacles
that, although Cohen
ALJ
concluded
goals at a
many
per-
of her
level of
virus,
Epstein-Barr
has severe Chronic
formance that was characteristic of her
impairment or a combina-
not have an
pre-morbid
status.”
does
functional
(or
impairments
medically equiva-
tion of
dence to
decision.
thereto)
qualify
lent
for disability un-
Secretary
v.
Duncan
Health & Human
concluded,
der the Act. The AU
more- Servs.,
(6th Cir.1986);
801 F.2d
over, that Cohen has the residual function- Murphy
Secretary
Health & Human
capacity
past
al
relevant Servs.,
(6th Cir.1986);
see
work as an Assistant
to the Dean and
Heckler,
also Garner v.
Adjunct Assistant Professor at the Medical
(6th Cir.1984) (In
security
social
School, or,
alternative,
in the
that she had
“may
try
novo,
circuit court
the case de
capacity
perform jobs
that exist in
evidence,
nor resolve conflicts in
nor decide
significant numbers in the national econo- questions of credibility.”). “Substantial ev
my. The AU’s conclusions were based
idence is more than a scintilla of evidence
primarily on the evidence of Cohen’s level
preponderance____”
but less than a
Brai
of activities
question,
nard v.
Health & Human
s^ostantially
which the AU found
under- Servs.,
(6th Cir.1989).
credibility.
mined her
The AU also found
credibility
that Cohen’s
undermined
III.
passed
her most
recent
school
guessing
exam
qualify
To
*5
insurance
repeating key phrases that had been em- payments, a claimant must establish that
phasized in class. The AU therefore de-
she is
meaning
disabled within the
of the
disability"
nied Cohen’s claim for
benefits.
Security
Social
Act.
42 U.S.C.
423(a)(1)(D)(1988). A claimant is entitled
§
upheld by
AU’s decision was
to
disability
receive
insurance benefits
Council,
Appeals
thereby
and
became the
if
“only
physical or mental
[the
final decision of
Secretary.
ap-
claimant’s]
Cohen
impairment
impairments
are of such se
pealed to the district court. The matter
verity
only
is not
unable to do
who,
was referred
Magistrate
upon
[she]
cannot,
previous
considering
work but
finding that
clearly
by [her]
Cohen was
disabled
education,
age,
experience,
and work
Epstein-Barr
[her]
virus and associated
other kind of
fatigue
syndrome,
chronic
recommended
gainful work
which exists
the national
Secretary denying
decision of the
economy.”
423(d)(2)(A)(1988);
42 U.S.C.
Cohen benefits
§
be reversed and that Co-
Heckler,
King
(6th
v.
972-73
hen’s
summary judgment
motion for
be
Cir.1984).
determining
In
granted.
whether
claim
ant
disability
pay
is entitled to
insurance
court, however,
The district
rejected the
ments,
opinions
medical
diagnoses
and
Magistrate’s recommendation and affirmed
treating physicians
great
are entitled to
decision that Cohen
not
weight,
uncontradicted,
and if
are entitled
appeal
disabled. This
followed.
complete
King, supra,
deference.
appeal,
On
Cohen contends that the AU
ALJ, however,
F.2d at 973. The
is not
(1)
adequately
failed
to consider the conclu-
by conclusory
doctors,
bound
statements of
opinions
sions and
reporting physi-
of the
particularly
they
unsupported by
where
are
cians;
(2) placed
and
emphasis
too much
objective
detailed
criteria and documenta
upon
sporadic
Cohen,
activities of
while
Id.; Duncan, supra,
tion.
II.
fering
Epstein-Barr
from “severe Chronic
that, pursuant
We are mindful
to 42
fatigue.
virus” and associated chronic
405(g),
U.S.C.
we are
(The
fatigue
confined to deter
chronic
from which Cohen has
mining whether the district
suffering
commonly
court erred in
is
referred to as
been
concluding that
there is
fatigue syndrome,”
substantial evi- “chronic
as well as
dysfunction
adequate,
than
simply
“chronic
immune
Cohen
would have
syndrome.” Due to
close association
employment.
lacked
stamina
such
suspected
relationship
causal
between
recognize
We
individu
“[a]n
Epstein-Barr virus and chronic
the chronic
pain
al’s statement as to
symp
or other
fatigue syndrome, the
are sometimes
two
not
toms shall
be
alone
conclusive evidence
synonymously. Although
referred
re
disability.”
423(d)(5)(A)
42 U.S.C. §
suggest
cent
that the causal rela
studies
(1988)(emphasis added).
claimant,
A
how
tionship
Epstein-Barr
between the
virus
ever, may rely
part
her own testimo
fatigue syndrome may
and chronic
in fact
ny
objective
in combination with
believed,
initially
more attenuated than
be
evidence
to establish that she
order
is
Ass’n,
see, e.g., Journal of the Am. Medical
qualify
To
pay
disabled.
Fatigue:
Prospective
A
Chronic
Clinical
Act,
ments under the
Cohen must show
4, 1990),
(July
Virological Study,
medically
that she has
ascertainable con
Epstein-Barr
“Chronic
virus”
“chronic
reasonably
expected
dition
could
fatigue syndrome” continue to be used
symptoms.
Heckler,
cause
Foster v.
interchangeably.) The medical
somewhat
(4th Cir.1986). Cohen,
evidence, however,
dictate
find
does
however,
required to prove
is not
the exact
incapable
resuming
Sparks
Bowen,
of her
cause
condition.
previous
work
(7th Cir.1986).
in the
617-18
In
or some other work
nation
available
deed, because
exact
economy.
Cheney expressed
al
doubt
nature
causes
syndrome
being
that Cohen
to maintain” em
still are
“will be able
ployment
economy,
explored,
perhaps
impossible
it
in the national
but did
would be
identify
not conclude that Cohen could not have
cause of her
exact
working
continued
from October
condition. The mere fact that the medical
*6
in
community
exploring
the time he examined her
1987. Dr.
is still
the contours of
that,
14,
September
however,
of
fatigue syndrome,
Johnson stated
as
chronic
does
disabling.
1988,
intelligent”
“very
Cohen was
and
symptoms any
make
less
Cohen’s
that even
a
in
func
decrease mental
618.
id. at
Cf
.
tion, she
remain “well above aver
would
Nonetheless,
debilitating fatigue
the
And,
age.”
although Dr. Hess
and
and to
described
Cohen to
doctors
clearly
that
Onischenko
believed
readily
objective
is not
reduced to
the AU
exhibiting symptoms
that would seri
criteria, and the AU was not
status,
ously
daily
curtail her
functional
accept as credible
bound to
Cohen’s own
diagnoses
possi
preclude
their
did not
the
symptoms.
regarding
bility that Cohen would be able to work.
Gooch v.
Health & Human
of
Moreover, Dr. Brooks
that Cohen
believed
589,
(6th Cir.1987),
Servs., 833 F.2d
592-93
possessed
required
the skills
denied,
(1988).
APPENDIX novo, evidence, nor resolve conflicts nor United States District Court Eastern questions decide credibility, Meyers Michigan
District of
Southern
Richardson,
[Myers]
Division
(6th Cir.1972). Even if
might
this court
conclusion,
arrive at a different factual
Cohen, Plaintiff(s)
Elizabeth L.
decision must be affirmed if
supported
it is
vs.
Gardner,
substantial evidence. Lane v.
(6th Cir.1967).
Honorable Robert E. DeMascio Security disability benefits on June (TR. 79). alleged She she has been Magistrate Judge Marcia G. Cooke 4,1984 unable to work since October due to MAGISTRATE JUDGE’S REPORT Epstein the onset of chronic Barr virus AND RECOMMENDATION fatigue syndrome (TR. 79). timely This is an action filed under alleged disability, Prior to her 205(g), amended, 405(g), U.S.C. worked as an assistant to the dean of the review a final Secretary decision of the (TR. 37). university school of a Health and Human denying plain- Services attending She is also spo- law school on a application tiff’s insurance radic basis. She testified at the adminis- application benefits. The initial was de- hearing trative that she had to leave her nied. Plaintiff exhausted available admin- job, despite last previous education and including istrative remedies a hearing be- work history poorly because she felt so (AU), fore an Administrative Law longer felt she could no continue to work. and thereafter filed suit this court. The pain She maintained that the chronic associ- issue before this court is whether there is fatigue syndrome, ated with chronic substantial evidence in sup- the record to loss of her mental faculties and the recur- port determination. Gib- including headaches, rent respi- infections Health, son v. Education *9 ratory vaginal pre- infections and infections Welfare, (6th and Cir. vent her working. from 1982). A expert, Substantial evidence has vocational been defined as Lois Brooks also (TR. 70). such relevant hearing evidence as a testified at reasonable might mind accept adequate support plaintiff’s past a Brooks concluded that the Perales, conclusion. relevant highly Richardson v. work was that of skilled 1420, 1427, U.S. S.Ct. 28 work. plaintiff Dr. Brooks testified the [91 (1971). L.Ed.2d The claimant has the has a PH.D from 842]
assistant to the dean research for the school, adjunct pro- and assistant jobs has had a number of over and that she require fessor a medical school did not including time assistant to the period a performance of work related activities research, adjunct profes- dean for assistant precluded by the limitations. There- above sor, sociology. and medical Her lecturer fore, plaintiff he concluded the was not primarily be that of a seden- work would disability under a as defined the Social expert further tary nature. The vocational (TR. 22). Security Act. There is not sub- as delineated found stantial evidence in this record to (AU), Law be- the Administrative finding of the Administrative Law hypothetical ginning Judge. activi- perform she can work related where twenty pounds with a maximum of ties II. point would allow from an exertion stand areas. her to transfer skills the other In order to be entitled to insur- (TR. 73-74). plaintiff found that the She Act, Security ance benefits under the Social high degree acquired has skills such as First, plaintiff must meet a two fold test. dealing knowledge teaching, technical medically there must be a determinable data, analyzing, coordinating, system- with impairment physical or mental which can data; high degree of izing, interpreting expected to last for a continuous speaking, in terms of communication skills (12) months; not less than twelve and writing reading. She further noted second, impairment must render the at the level the that these skills are not plaintiff substan- unable possessed, certainly to a plaintiff once but 423(d)(1)(A); employment. tial 42 U.S.C. range level utilized in a wide much lessor 1382(a)(3)(A)(B). gainful activi- Substantial basically of clerical kinds of which are activity in- ty defined as work which (TR. 74). in nature. semi-skilled doing significant physical and men- volves pay or performed that are given plaintiffs noted that tal activities She also 404.1572(a)(b) 416.- reading writing profit. that it C.F.R. problem with § Furthermore, 972(a)(b). Security Social all and semi-skilled would affect skilled symptoms, in- Regulations provide that all basically limit her to un- work and would by objective cluding pain be corroborated assembly, packaging i.e. skilled areas 75). laboratory findings which (TR. signs clinical sorting symp- cause of the be shown to be the can medical evidence The ALJ found that the plain- 20 C.F.R. 404.1529. Where toms. plaintiff establishes has severe chronic past relevant ability perform tiff has the Virus, Barr she does not have an stein but signifi- work, that exists or other work impair- impairment or a combination numbers, finding made that must be cant in, medically one equal listed ments is not disabled. he/she I, P, Subpart Regulation Appendix listed in record clear- (TR. 21). medical evidence this found that the The He further No. plaintiff suf- fact that this capaci- ly supports the plaintiff has the residual functional Barr Epstein Virus except fers from chronic work related activities ty is of- symptomatology which carrying its associated involving lifting and for work fatigue syndrome. sitting more ten called chronic twenty pounds, more than early as her indicates as medical evidence eight hour work than six hours out an plaintiff has suffered childhood the squatting. He further found that day and (TR. 142, symptomatology its the virus and ability use foot hand controls plaintiff’s always 155). plaintiff has suffered gross strength for fine and grip and her illnesses, however, of viral a multitude are somewhat reduced and with manipulation (TR. 142). began in 1966. levels of the most serious have to avoid extreme she would with sev- has suffered time she be allowed to take Since that dust and smoke and flu-like *10 therefore, In series (TR. 21). He eral illnesses. breaks concluded plaintiff. engulf the began to as an plaintiff’s past relevant work that the causing disability. reached a level total Plaintiff’s Brief at 16. dysfunctional fatigue, She suffered from weakness, headaches, supports The medical muscle constant evidence the fact infections, plaintiff high I.Q. superi- vaginal yeast bladder and E.coli has respond cognitive simply infections that did not abilities this enabled her to (TR. 143). working long Between continue for as as did antibiotics 1982 to gained pounds. fatigue problems causing In without her 1987 she 1984 she defi- (TR. 205). performance began to suffer with severe sinovitis and ciencies (TR. 143). joint. of the left In bursitis plaintiff The never testified that she was sight 1984 she lost her one 65% totally merely bedridden. She chronicled eye optic due to neuritis. In 1986 her fatigue syndrome how chronic has affected again disease once flared and she continued degree her life to such a is no urinary symptoms, headaches, to have tract case, longer able to function. In her fa- fatigue. sore throat and tigue represents pain the kind of that often accompanies many other diseases. diagnosis Epstein syndrome The Barr (TR. has been several times. confirmed Secretary Duncan v. Health and 155-156, 158, 190, 192). Plaintiffs most Services, (6th Human March, recent exacerbation occurred Cir.1986) Appeals the Sixth Circuit Court of (TR. 190). being This resulted in her analysis apply- set forth the to be used in pericarditis. afflicted with fibrous She lost pain. the standard for the evaluation pounds and suffers now from multi- First, Secretary must determine that (TR. 190-191). dysfunction focal brain objective there is medical evidence of an underlying medical condition. If there is Magistrate Judge It is clear to this evidence, Secretary such must deter- plaintiff intelligent anis and well educated 1) objective mine: whether medical evi- woman. It is also clear based on the medi- alleged severity dence confirms the of the cal records contained in this file that this 2) pain arising from the condition or wheth- plaintiff Epstein suffers from chronic Barr er the established medical condition is of syndrome. plaintiff The is articulate and reasonably such level of that can understands symptomatolo- the nature and expected produce alleged be severe gy explain, of her disease. She was able to pain and other It functional limitations. is quite accurately, the affect the disease has unnecessary requirements to meet both plaintiff had on her life. The was an ac- prong. the second The Test con- Duncan tive, intelligent woman who is now reduced tinues to be law of the Sixth Circuit. being almost bedridden of her because McCormick Health and plaintiff disease.1 As the notes in her brief Services, (6th Human support of her summary judg- motion for Cir.1988). ment: The clearly supports Administrative Law has medical evidence plaintiff’s I.Q. latched plaintiff onto overall test the fact that the suffers with (no score of accompanying school attendance stein Barr virus and the sporadic, fatigue syndrome. matter how labored and ineffec- chronic The medical tual), irregular and her highly accompanying ballroom tests it her testimo- dancing attempt infections, as a smoke screen in ny fatigue of chronic and other plaintiff clearly obfuscate the real issue in this disease. This is disabled. plaintiff’s. plaintiff prongs whether and The has met of the both dysfunctional cognitive symptoms have test. Duncan plaintiffs profession 1. The AU makes much of the fact that effort to learn a new plaintiff part-time cope possibly attends law school aon basis. in order to with her disease and However, given past educational achieve- career should not seen a bar enter a new plaintiff only receiving Hopefully, plaintiff ments the fact that the has been benefits. progress again day able to less than two semesters in four will recover and be able to be- one years working community. indicative of suffers. of the come a member *11 about which had testified. Sim- said, ilarly, Dr. Brooks an individual who RECOMMENDATION required sleep two to three hours of in IT THE AND IS REPORT RECOMMEN- by order to recover from induced Magistrate Judge that the DATION of this trips away from short home would be un- Summary Judgment plaintiff’s Motion for Finally, to able work. Dr. Brooks testified GRANTED, for be the defendant’s Motion approxi- that an individual who had to rest Summary Judgment DENIED and the mately day 18 hours a would be unable to Secretary decision of the of Health and perform any jobs that in exist the national Human Services REVERSED. economy. parties hereby are informed that ob jections may Report be filed to this The Administrative Law found days Recommendation within ten after be subjective complaints claimant’s “[t]he copy provided thereof as served with completely given were not credible her ac- 636(b)(1)(C) and Local 28 U.S.C. § tivities,” specific findings but he made no objections to file Rule C-4 and failure fatigue. on the actual extent of Dr. Cohen’s may further constitute waiver of way to best document the nature “[T]he Walters, right appeal. United States v. fatigue syndrome,” of this also, (6th Cir.1981). See according Cheney, “[o]bjective Dr. lies in Arn, Thomas v. U.S. 106 S.Ct. findings system of immune abnormalities (1985). L.Ed.2d [88 435] lymphocyte and the elevation of secreted /s/Marcia G. Cooke record, cytokines.” tell, I cannot from this MARCIA G. COOKE system Dr. immune to what extent Cohen’s UNITED STATES MAGISTRATE objectively abnormalities have been veri- JUDGE I fied. Neither can tell what her labo- May 31, ratory reports “the elevation of DATED: show about lymphocyte cytokines” secreted —and suggests that decision issued the AU NELSON, Judge, A. DAVID Circuit may no informed on he have been better concurring part dissenting part. I cir- these matters than am. Under the agree ought judgment I to be cumstances, me, appropri- it seems aside, I set but would instruct the district be to remand the case to ate course would court to remand the case findings sig- on the agency specific factfinding. for further laboratory reports and on nificance of the principal reasons simply lacked the stam- whether Dr. Cohen among patients Dr. like engage necessary ina Cohen’s, according Cheney, “cog- to Dr. are gainful employment. For us to make such impairment” “dysfunctional nitive fa- ourselves, view, my to under- findings tigue.” The ALJ found that Dr. Cohen’s province. our take a task that is outside disabling, cognitive impairment was not there was substantial evidence in the (Dr. ability pass record Cohen’s her law examinations, support this e.g.)
school
finding. As to extent of Dr. Cohen’s however,
fatigue, testimony that there was typically slept day and had 18 hours nap during the from two to four hours Brooks,
day. expert, The vocational naps that the need to take such
testified “pretty preclude employ- much”
would
ment. Dr. Brooks also said that an individ- “experiencing which
ual extreme minor levels
would be exacerbated even perform any of the
of exertion” could not