Bankston v. Commissioner of Social Sec., 99-CV-75543-DT.
| Citation | 127 F.Supp.2d 820 |
| Decision Date | 25 October 2000 |
| Docket Number | No. 99-CV-75543-DT.,99-CV-75543-DT. |
| Parties | Lester BANKSTON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Kenneth F. Laritz, Clinton Township, MI, for plaintiff.
Peter A. Caplan, U.S. Attorney's Office, Detroit, MI, for defendant.
This matter is before the Court to determine whether there is substantial evidence in the record to support the finding of the Commissioner of Social Security and the Magistrate Judge's Report and Recommendation denying Plaintiff's application for disability benefits under the Social Security Act. See 42 U.S.C. §§ 416(i), 423. Both parties filed a Motion for Summary Judgment pursuant to FED. R. CIV. P. 56. The Report and Recommendation of the Magistrate Judge affirmed the decision of the Administrative Law Judge (hereinafter "ALJ") denying Plaintiff's Motion for Summary Judgment and granting Defendant's motion. Plaintiff has filed objections to the Magistrate Judge's Report and Recommendation. The Court heard oral argument on the issues presented on August 30, 2000. For the reasons set forth below, the final decision of the Commissioner and the Magistrate Judge's Report and Recommendation is REVERSED. Plaintiff's Motion for Summary Judgment is GRANTED. Defendant's Motion for Summary Judgment is DENIED. Further, the Court REMANDS this case to the Commissioner with instructions to award Plaintiff disability benefits to which he is entitled under the Social Security Act.
Plaintiff is forty-seven years old and has an eighth grade education. He worked for Ford Motor Company as a tow truck driver from 1968 through 1990 and an auto assembler from 1990 through 1994 (26½ years). Plaintiff applied for disability benefits on March 24, 1995 because of three ruptured disks, headaches, numbness, and tingling in his hands and fingers, as well as pain in his shoulders, arms, and lower back, the injuries allegedly occurring on July 6, 1994.
Plaintiff was hospitalized December 15, 1993 for psychotherapy and was diagnosed with depression and alcohol abuse. Plaintiff was again hospitalized on March 22, 1994 and was discharged on April 4, 1994 with a Global Assessment of Functioning (GAF) rating of 35-40, which is a poor to guarded prognosis due to Plaintiff's "poor motivation" and "very poor compliance" with treatment and continued alcohol abuse.1
On May 30, 1995, Plaintiff's treating physician, Dr. Judy Macy, diagnosed him with cervical (neck) and lumbosacral (lower vertebrae) radiculopathy (disease of nerve roots) with pain in the neck and lower back. On June 10, 1997, Plaintiff's physician reported to Plaintiff's attorney that the side effects of the medication Plaintiff was taking (Ultram, Darvocet, and Skelaxin) included sedation. The doctor also stated that Plaintiff had difficulty standing due to a heel spur in his right foot and that the pain in his lower back caused him to feel as though his lower extremities were going to give out on him. The doctor further stated that Plaintiff had constant headaches from cervical radiculopathy and had to lie down during the day to relieve his back pain. Plaintiff testified that he is in pain on a daily basis and that his medications cause him to feel drowsy. Dr. Macy opined that Plaintiff's prognosis for "employability" was poor, and noted that Plaintiff was "medically retired" from Ford Motor Company.
At the administrative hearing of the Social Security Commission, the ALJ posed two hypothetical questions to the testifying vocational expert (hereinafter "VE"), Dr. Charles Oliver. The first question assumed a person of Plaintiff's age and experience, with the same injuries and on the same medication as Plaintiff. However, the question assumed the person felt "drowsy" due to medication, but the drowsiness was not an "ongoing functional limitation." The VE concluded that this hypothetical worker could effectively perform 6,000 jobs in the national economy entailing "sedentary" work,2 and therefore would preclude disability benefits under the Statute.
The second hypothetical posed by the ALJ assumed the person's medication caused drowsiness that required morning and afternoon naps at unpredictable times. The VE concluded that this hypothetical worker could perform no work, and thus, be eligible for benefits.
On Plaintiff's cross-examination of the VE, Plaintiff's counsel asked the VE the impact on Plaintiff's ability to perform the sedentary jobs if he "often had deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner." Plaintiff's counsel formed his question by referring to a Psychiatric Review Technique Form (hereinafter "PRTF") using the word to describe Plaintiff's deficiencies. Asked by the ALJ how to interpret the word "often," Plaintiff's counsel responded that in this case the word "often" would be interpreted as an inability to concentrate one-third of the time. The VE responded that a person could perform no work if he could not concentrate one-third of the time.
The ALJ found, and the Magistrate affirmed, that Plaintiff's allegations regarding his limitations were not as severe as alleged and while Plaintiff may be drowsy at times, he could still perform the sedentary jobs listed by the VE, thus the ALJ and Magistrate rejected Plaintiff's definition of "often" and denied benefits to Plaintiff under the Statute.
The Magistrate conceded that the Social Security regulations, rulings, and case opinions provide no clear definition of the word "often." Plaintiff asks this Court to provide a definition.
A district court's standard of review for a magistrate judge's report and recommendation is de novo when objections are made to the report and recommendation. See FED. R. CIV. P. 72(b). This Court may "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. Because Plaintiff filed timely objections, this Court must review the Magistrate Judge's Report and Recommendation de novo.
However, pursuant to 42 U.S.C. § 405(g), judicial review of the Commissioner of Social Security's decision is limited to whether there is substantial evidence in the record to support the ALJ's factual findings. See Smith v. Secretary of Health and Human Servs., 893 F.2d 106, 108 (6th Cir.1989). Kirk v. Secretary of Health and Human Servs., 667 F.2d 524, 535 (6th Cir.1981). This court must review the administrative record as a whole and take into account "whatever in the record fairly detracts from its weight." Garland v. Shalala, No. 94-6647, 1996 WL 99809, *5, 1996 U.S.App. LEXIS 6107, at *14 (6th Cir. Mar. 5, 1996).
Plaintiff may only receive disability insurance benefits if he can establish a "disability" within the terms of the Social Security Act. See 42 U.S.C. § 423(d)(1)(A). Specifically, Plaintiff has the burden to show he is unable 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...." Id. The ALJ must follow a five-step sequential process to determine whether Plaintiff has carried his burden of establishing a disability. See 20 C.F.R. § 404.1520. In the first four parts of the test Plaintiff must show that (1) he is not presently employed, (2) his impairment is "severe," (3) the impairment meets or is medically equal to a "listed impairment" as defined by the Social Security Administration, (4) he does not have the residual functional capacity to perform his former work. See 20 C.F.R. § 404.1520(a)-(e). After Plaintiff has satisfied the first four steps, the burden shifts to the Commissioner to show whether Plaintiff has the residual functional capacity to perform any other substantial gainful activity or sedentary work. See 20 C.F.R. § 404.1520(f).
The crux of the dispute in this case lies in the ALJ's determination at step five that Plaintiff has the residual functional capacity to perform sedentary work.
The Court finds it reversible error for the ALJ to have failed to give due deference to the medical opinion of Plaintiff's treating physician, the opinion of the testifying VE at the administrative hearing, and Plaintiff's own allegations of pain.
In Walker v. Secretary of Health and Human Servs., 980 F.2d 1066 (6th Cir. 1992), the claimant had listed on his PRTF that he often suffered from deficiencies of concentration, persistence, and pace. The claimant's treating physician stated that he was disabled due to his injuries and pain and was not employable. See id. at 1068. The VE responded that the claimant was not employable after hearing a description of a hypothetical person with the claimant's physical traits and injuries. See id. at 1069. The ALJ ignored the opinion of the VE and claimant's treating physician and found that the claimant was capable of sedentary work, thus, was not disabled. See id. The Sixth Circuit overturned the Commissioner and found the claimant disabled. See id. at 1072.
The court held that pursuant to the "treating physician doctrine," the medical opinion "of the treating physician is to be given substantial deference — and, if that opinion is not contradicted, complete deference must be given." Id. at 1070. The Sixth Circuit has recently explained the rationale for the doctrine as follows:
The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his...
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