Devoll v. Commissioner of Social Sec.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: PER CURIAM; BOGGS
• Citation: Devoll v. Commissioner of Social Sec., 98 F.3d 1341 (6th Cir. 1996)
• Decision Date: 01 October 1996
• Docket Number: No. 95-1166,95-1166
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Barbara E. DEVOLL, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. *

Page 1341

98 F.3d 1341

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Barbara E. DEVOLL, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.^*

No. 95-1166.

United States Court of Appeals, Sixth Circuit.

Oct. 1, 1996.

On Appeal from the United States District Court for the Eastern District of Michigan, No. 94-10009; Robert H. Cleland, Judge.

E.D.Mich.

REVERSED.

Before: JONES, BOGGS, COLE, Circuit Judges.

PER CURIAM.

Plaintiff Barbara DeVoll appeals the final decision of the Commissioner of Social Security denying her disability insurance benefits. The Commissioner affirmed the finding of an Administrative Law Judge (ALJ) that DeVoll was not disabled within the meaning of the Social Security Act ("Act"). After DeVoll sought judicial review, the district court awarded summary judgment to the Commissioner. The sole issue on appeal is whether the findings of the administrative law judge (ALJ) were supported by substantial evidence. We decide that issue in the negative, and thus reverse the district court.

DeVoll was a nurse's aide. She holds a GED diploma and has taken some college courses. She has been treated by chiropractor Paul Rumph for back pain since 1982. On May 19, 1988, DeVoll was rear-ended in an automobile accident and injured her back. From May 20, 1988 to December 5, 1988, she consulted Rumph. She further consulted orthopedic surgeon R. Rogers in June of 1988 and Lionel Glass in August of 1988. These physicians diagnosed DeVoll with a back sprain and administered conservative treatment. DeVoll was subsequently hospitalized for back pain from November 10 to November 15, 1988, and was diagnosed with a muscular and ligament sprain as well as a bulging disc in her back. On December 7, 1988, after suffering further pain, DeVoll consulted nuerosurgeon Hari Chopra, who was unable to identify positively the cause of her pain.

On January 27, 1989, Dr. Rogers drafted a report which concluded that further treatment would not be necessary. See J.A. at 197. On June 16, 1989, Dr. Martin Pevzner saw DeVoll. X-rays revealed an erosion and false widening of the sacroiliac joints. He prescribed Indocin, an anti-inflammatory drug. This was the last treatment DeVoll received before her disability insurance expired on December 31, 1989.

On February 10, 1990, an MRI was performed on DeVoll. It revealed no new problems. On May 17, 1990, DeVoll went to the office of neurosurgeon Manoucher Gueramy crying and complaining of pain. He found that she had limited back motion, but all else was normal. Fearful of surgery, DeVoll told Gueramy that she only wanted conservative treatment. Gueramy then wrote DeVoll's insurance carrier, recommending a referral to a pain management clinic for treatment of her physical and emotional pain.

Throughout these months of treatment, DeVoll was a self-described "basket case." She testified that she was in pain every day. J.A. at 33-34. She could stand for only twenty minutes at a time and could sit for thirty minutes at a time. Id. Whatever relief she received from pain medication was only temporary. Id. She had entertained thoughts of, and once attempted, suicide. Id.

On March 30, 1992, DeVoll applied for disability benefits under §§ 216(i) and 223 of the Act. She claimed that she was "unable to work because of [her] disabling condition on May 19, 1988," and that she was "still disabled." J.A. at 48. On September 24 and October 1, 1992, on a referral by her attorney, DeVoll was treated by Dr. George Drozd, a psychologist. After running a battery of tests, he determined that she suffered from a "significant affective and characterological dysfunction which appears to be long standing in nature and likely exacerbated by events surrounding and following her automobile accident in May of 1988." J.A. at 224. Consequently, Drozd concluded that DeVoll was unemployable, and needed two to five years of psychological intervention.

DeVoll's application was denied initially and on reconsideration. On August 3, 1993, DeVoll's case was heard by an ALJ. On August 26, 1993, the ALJ denied DeVoll benefits. He reasoned that: 1) she was not disabled prior to December 31, 1989, when her insurance expired; 2) she was not precluded from doing other work; and 3) that Drozd's findings did not deserve a "high degree of credibility," and even if they did, they could not relate back to the time DeVoll was insured. J.A. at 15-16. The Appeal's Council denied DeVoll's request for review on November 16, 1993, thereby making the ALJ decision the final decision of the Commissioner.

On January 11, 1994, DeVoll filed an action in the United States District Court for the Eastern District of Michigan, seeking judicial review under 42 U.S.C. § 405(g). The parties filed cross-motions for summary judgment. On October 17, 1994, the magistrate issued a Report and Recommendation, which proposed that DeVoll's Motion be granted and the case be remanded to the ALJ for further proceedings. The district court, disagreed, believing that the ALJ's decision was supported by substantial evidence. Accordingly, the district court rejected the magistrate's findings and awarded summary judgment to the Commissioner. This appeal followed.

Judicial review of this decision is authorized under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). In reviewing an agency's factual determinations, this court must determine whether those decisions were supported by substantial evidence. Id.; Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467 (1968); Peabody Coal Co. v. Holskey, 888 F.2d 440, 441 (6th Cir.1991). When determining whether the Commissioner's findings are supported by substantial evidence, we examine the evidence in the record "taken as a whole," and " 'must take into account whatever in the record fairly detracts from its weight,' " Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

The Commissioner, not the court, is charged with the duty to weigh the evidence, to resolve material conflicts in the testimony, and to determine the case accordingly. See Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990). The Commissioner weighs credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). Where substantial evidence supports the Commissioner's determination, it is conclusive, even if substantial evidence also supports the opposite conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc).

When a claimant asserts that she suffers from a disability, she must establish: 1) that she is not working; 2) that she suffers from a "severe" impairment; 3) that her alleged disability is recognized as one warranting relief; 4) that her residual functional capacity renders her unable to perform at her past work; ² and 5) that her residual functional capacity renders her incapable of performing any other work. 20 C.F.R. § 404.1520 (1996); see also Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir.1985). The Commissioner must determine the onset date of disability. Titles II and XVI: Onset of Disability, Soc.Sec.Rul. 83-20, Soc.Sec.Rep.Svc., 1983 WL 31249.

The issue in this case is whether the ALJ's decision that DeVoll did not suffer from a severe mental impairment was supported by substantial evidence. A mental impairment must be demonstrated by medically accepted clinical techniques. 42 U.S.C. § 423(d)(3). In addition, the ALJ may consider expert medical testimony, medical evidence, subjective evidence of pain and suffering, and the claimant's age, educational background, and work history. See Manigan v. Califano, 453 F.Supp. 1080, 1086 (D.Kan.1978). Moreover, "[m]edical evidence of a subsequent condition of health, reasonably proximate to a preceding time may be used to establish the existence of the same condition at the preceding time." Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir.1976) (citing Wigmore, Evidence §§ 225, 233 (3d ed. 1940)). Nevertheless, where a claimant attempts to relate subsequent findings of disability back to the period during which she was insured, she must present sufficient corroborative evidence from the insured period to support that claim. See Liebisch v. Secretary of Health and Human Servs., No. 93-3122, slip. op. at 3 (6th Cir. Mar. 30, 1994) (unpublished per curiam) (citing King v. Secretary of Health and Human Servs., 896 F.2d 204, 206 (6th Cir.1990)).

Furthermore, the ALJ may collect additional evidence to make a determination of mental disability. Under § 404.1520a, the ALJ may call upon a medical examiner to assist him in making his these findings. While an examiner is not required in every case, "in any case where there is evidence which indicates the existence of a mental impairment, [an initial determination of disability] shall be made only if the [ALJ] has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable functional capacity assessment." 42 U.S.C. § 421(h).

In the instant case, DeVoll proffers Dr. Drozd's clinical findings to establish that she suffered from a mental impairment during her insured period. She further cites as corroborative evidence: 1) her January 1989 visit to Dr. Rogers where she complained that her nerves were bad; 2) her June 1989 visit to Dr. Pevzner, where Pevzner was compelled to cite her "inappropriate" laughter in his findings regarding her lower back pain (J.A. at 213); and 3) her May 1990 visit to Dr. Gueramy, when Gueramy wrote that she "came to the office crying" and was "tremendously depressed because of the continuation of the pain," and thereafter prescribed therapy and antidepressants. DeVoll's Br. at...