Case Information
*1 CIVIL ACTION NO. 06-197-GWU
DAVID R. WOOD, PLAINTIFF, vs . MEMORANDUM OPINION JO ANNE B. BARNHART, DEFENDANT.
COMMISSIONER OF SOCIAL SECURITY, INTRODUCTION
The plaintiff brought this action to obtain judicial review of an administrative denial of his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The appeal is currently before the Court on cross-motions for summary judgment.
APPLICABLE LAW
The Sixth Circuit Court of Appeals has set out the steps applicable to judicial review of Social Security disability benefit cases: Is the claimant currently engaged in substantial gainful activity?
1. If yes, the claimant is not disabled. If no, proceed to Step 2. -20 C.F.R. 404.1520(b), 416.920(b).
2. Does the claimant have any medically determinable physical or mental impairment@)? If yes, proceed to Step 3. If no, the 20 C.F.R. 404.1508, 416.908. claimant is not disabled. Does the claimant have any severe impairment@)--i.e., any impairment(s) significantly limiting the claimant‘s physical or mental ability to do basic work activities? If yes, proceed to *2 Step 4. If no, the claimant is not disabled. 20 C.F.R. 404.1520(c), 404.1521,416.920(~), 461.921.
4. Can the claimant's severe impairment(s) be expected to result in death or last for a continuous period of at least 12 months? If yes, proceed to Step 5. If no, the claimant is not disabled. See 20 C.F.R. 404.920(d), 41 6.920(d).
5. Does the claimant have any impairment or combination of impairments meeting or equaling in severity an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments)? If yes, the claimant is disabled. If no, proceed to Step 6. See 20 C.F.R. 404.1520(d), 404.1526(a), 416.920(d), 416.926(a).
6. Can the claimant, despite his impairment(s), considering his residual functional capacity and the physical and mental demands of the work he has done in the past, still perform this kind of past relevant work? If yes, the claimant was not If no, proceed to Step 7. See 20 C.F.R. disabled. 404.1 520(e), 41 6.920(e). Can the claimant, despite his impairment@), considering his
residual functional capacity, age, education, and past work experience, do other work--i.e., any other substantial gainful activity which exists in the national economy? If yes, the claimant is not disabled. See 20 C.F.R. 404.1505(a), 404.1520(f)(l), 416.905(a), 41 6.920(f)(I).
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Applying this analysis, it must be remembered that the principles pertinent to the judicial review of administrative agency action apply. Review of the Commissioner's decision is limited in scope to determining whether the findings of fact made are supported by substantial evidence. Jones v. Secretarv of Health and Human Services, 945 F.2d 1365, 1368-1369 (6th Cir. 1991). This "substantial *3 evidence" is "such evidence as a reasonable mind shall accept as adequate to support a conclusion;" it is based on the record as a whole and must take into account whatever in the record fairly detracts from its weight. Garner, 745 F.2d at
One of the detracting factors in the administrative decision may be the fact that the Commissioner has improperly failed to accord greater weight to a treating physician than to a doctor to whom the plaintiff was sent for the purpose of gathering information against his disability claim. Bowie v. Secretarv, 679 F.2d 654, 656 (6th Cir. 1982). This presumes, of course, that the treating physician's opinion is based on objective medical findings. Cf. Houston v. Secretarv of Health and Human Services, 736 F.2d 365,367 (6th Cir. 1984); Kina v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). Opinions of disability from a treating physician are binding on the trier of fact only if they are not contradicted by substantial evidence to the contrary. Hardawav v. Secretary, 823 F.2d 922 (6th Cir. 1987). These have long been well-settled principles within the Circuit. Jones, 945 F.2d at 1370.
Another point to keep in mind is the standard by which the Commissioner may assess allegations of pain. Consideration should be given to all the plaintiffs symptoms including pain, and the extent to which signs and findings confirm these symptoms. 20 C.F.R. Section 404.1529 (1991). However, in evaluating a claimant's allegations of disabling pain:
First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain.
Duncan v. Secretarv of Health and Human Services, 801 F.2d 847, 853 (6th Cir. 1986).
Another issue concerns the effect of proof that an impairment may be remedied by treatment. The Sixth Circuit has held that such an impairment will not serve as a basis for the ultimate finding of disability. Harris v. Secretarv of Health and Human Services, 756 F.2d 431, 436 n.2 (6th Cir. 1984). However, the same result does not follow if the record is devoid of any evidence that the plaintiff would have regained his residual capacity for work if he had followed his doctor's instructions to do something or if the instructions were merely recommendations. Id. Accord, Johnson v. Secretarv of Health and Human Services, 794 F.2d 1106, 11 13 (6th Cir. 1986).
In reviewing the record, the Court mustworkwith the medical evidence before it, despite the plaintiffs claims that he was unable to afford extensive medical work- ups. Gooch v. Secretarvof Health and Human Services, 833 F.2d 589,592 (6th Cir. 1987). Further, a failure to seek treatment for a period of time may be a factor to be considered against the plaintiff, Hale v. Secretarv of Health and Human Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way to afford *5 or obtain treatment to remedy his condition, McKniaht v. Sullivan, 927 F.2d 241,242 (6th Cir. 1990).
Additional information concerning the specific steps in the test is in order. Step six refers to the ability to return to one's past relevant category of work.
Studawav v. Secretary, 81 5 F.2d 1074, 1076 (6th Cir. 1987). The plaintiff is said to make out a prima facie case by proving that he or she is unable to return to work. Cf. Lashlev v. Secretarv of Health and Human Services, 708 F.2d 1048, 1053 (6th Cir. 1983). However, both 20 C.F.R. 416.965(a) and 20 C.F.R. 404.1563 provide that an individual with only off-and-on work experience is considered to have had no work experience at all. Thus, jobs held for only a brief tenure may not form the basis of the Commissioner's decision that the plaintiff has not made out its case. U. at
Once the case is made, however, if the Commissioner has failed to properly prove that there is work in the national economy which the plaintiff can perform, then an award of benefits may, under certain circumstances, be had. E.u.. Faucher v. Secretarv of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). One of the ways for the Commissioner to perform this task is through the use of the medical vocational guidelines which appear at 20 C.F.R. Part 404, Subpart P, Appendix 2 and analyze factors such as residual functional capacity, age, education and work experience.
One of the residual functional capacity levels used in the guidelines, called "light" level work, involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds; a job is listed in this category if it encompasses a great deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls; by definition, a person capable of this level of activity must have the ability to do substantially all these activities. 20 C.F.R. 404.1567(b). "Sedentary work" is defined as having the capacity to lift no more than ten pounds at a time and occasionally lift or carry small articles and an occasional amount of walking and standing. 20 C.F.R. 404.1 567(a), 41 6.967(a).
However, when a claimant suffers from an impairment "that significantly diminishes his capacity to work, but does not manifest itself as a limitation on strength, for example, where a claimant suffers from a mental illness . . . manipulative restrictions. . . or heightened sensitivity to environmental contaminants . . . rote application of the grid [guidelines] is inappropriate . . ." Abbott v. Sullivan, 905 F.2d 918,926 (6th Cir. 1990). If this non-exertional impairment is significant, the Commissioner may still use the rules as a framework for decision-making, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 200.00(e); however, merely using the term "framework" in the text of the decision is insufficient, if a fair reading of the record reveals that the agency relied entirely on the grid. W. In such cases, the agency *7 may be required to consult a vocational specialist. Damron v. Secretary, 778 F.2d 279, 282 (6th Cir. 1985). Even then, substantial evidence to support the Commissioner‘s decision may be produced through reliance on this expert testimony only if the hypothetical question given to the expert accurately portrays the plaintiffs physical and mental impairments. Varlev v. Secretarv of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION
The administrative lawjudge (ALJ)found that Wood suffered from amputation or partial amputation of several fingers, residuals of a left hip injury, alcohol and cocaine abuse in remission, and an adjustment disorder with a depressive mood. (Tr. 22). The plaintiff, whose past work experience was as a security guard in the coal mine industry (Tr. 15), was found able to engage in a limited range of light level work (Tr. 22). Since the vocational expert (VE) was able to identify a significant number of alternative jobs available for the plaintiffs vocational profile, the ALJ determined that the plaintiff was not “under a disability” and denied his claims for benefits. (Tr. 21 -23).
The plaintiffs sole argument concerns the assessment of his mental condition and, most specifically, the failure of the ALJ to rely upon limitations offered by a medical reviewer.
The problem with Woods’ contention is that all of the mental health evidence before the Court takes into account, in some way, the plaintiffs substance abuse problems, not a proper subject of a benefits claim as per Pub1 L. 104-121. One of the few mental health treatment notes of record focused on the plaintiffs substance abuse. (Tr. 147). Consultative Examiner Cristi Hundley referred to alcohol abuse and cocaine abuse among her Axis I diagnoses and she did not expressly limit the basis of any restrictions mentioned to the m-substance abuse problems. (Tr. 206). Even the Mental Residual Functional Capacity assessment form completed by Lea Perritt cites LO1 Section 12.09 (the old substance abuse section) under the categories section of the form. (Tr. 255). Another medical reviewer, whose signature is illegible, completed a Psychiatric Review Technique form also referencing LO1 Section 12.09. (Tr. 274). Thus, it does not appear that any assessment clearly delineated mental restrictions independent of the substance abuse problems, which means that the ALJ need not necessarily credit the mental restrictions of any one source.
There were also reasons for the ALJ to discount the existence of any current significant mental restrictions not related to substance abuse. As noted by the defendant, Wood had told the consultative examiner that he was able to care for his personal hygiene mostly without assistance, regularly vacuumed and dusted, would occasionally do the laundry, would read novels and do puzzles and had weekly *9 contact with friends. (Tr. 204). The examiner opined that “his presentation during this evaluation did not suggest a mental health reason which would prevent him from being employed”; he also cited a GAF of 63 (Tr. 206), presumably including consideration of substance abuse problems, consistent with only mild symptoms as per the Diaanostic and Statistical Manual of Mental Disorders (4th Ed.) (DSM-IV). Finally, current depression and anxiety complaints were not mentioned as a source of disability in the Disability Report (Tr. 92), Appeal Disability Report (Tr. 101) or the plaintiffs hearing testimony (Tr. 42-44, 48-50).
Under the narrow circumstances of this case, the ALJ’s use of at least some mental restrictions (Tr. 59) was largely gratuitous.
The decision will be affirmed.
This the :$’ day of January,
W
l E. WIX ONTHANK SENIOR JUDGE