Reed v. Secretary of Health and Human Services

• Citation: 804 F. Supp. 914
• Decision Date: 07 October 1992
• Docket Number: No. 91-CV-75198-DT.,91-CV-75198-DT.
• Parties: Linda K. REED, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Western District of Michigan

804 F. Supp. 914

Linda K. REED, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

No. 91-CV-75198-DT.

United States District Court, E.D. Michigan, S.D.

October 7, 1992.

COPYRIGHT MATERIAL OMITTED

Gerald Benjamin, Levine, Benjamin, Tushman, Bratt, Jerris & Stein, Southfield, Mich., for plaintiff.

Frances L. Zebot, U.S. Atty., Detroit, Mich., for defendant.

ORDER ACCEPTING REPORT AND RECOMMENDATION

GADOLA, District Judge.

The Court has reviewed the file and the Magistrate Judge's Report and Recommendation submitted herein and any timely objections filed thereto. The proposed Report and Recommendation is hereby accepted and entered as the findings and conclusions of the Court;

Now, therefore, IT IS ORDERED that Defendant's Motion for Summary Judgment is hereby DENIED, the Motion for Summary Judgment of Plaintiff is hereby GRANTED and the case remanded to the Secretary for computation of benefits.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

PEPE, United States Magistrate Judge.

Plaintiff Linda Reed has brought this action under 42 U.S.C. § 405(g) to challenge a final decision of defendant Secretary denying her application for Social Security disability insurance benefits. Both parties have filed summary judgment motions, which have been referred to me for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Plaintiff applied for disability benefits on May 3, 1989, claiming disability as of January 6, 1986, due to arthritis, Chronic Fatigue Syndrome, temporomandibular joint disorder (TMJ), and depression (R. 112). Plaintiff had earlier filed for disability benefits on October 28, 1986, due to reactive arthritis and overall viral infections (R. 63). This application was denied in an opinion of November 4, 1987, by Administrative Law Judge ("ALJ") Alfred H. Varga (R. 106-11). Prior to filing her second application, plaintiff had requested Judge Varga to reopen her earlier case, which request was denied on the grounds of failure to establish the good cause requirement for reopening a prior decision (R. 21).

Plaintiff's counsel argues that the good cause condition was fulfilled because in 1987 neither the Secretary nor the medical community were adequately considering the symptoms chronic Epstein-Barr Virus Syndrome (also known as Chronic Fatigue Syndrome). Plaintiff's counsel notes that it was not until March 1988 that a definitive article on this impairment was published in the Annals of Internal Medicine (March 1988, pp. 387-89). Further, it was not until 1988 that the Center for Disease Control in Atlanta finally accepted Chronic Fatigue Syndrome as a disease.

The government argues that this condition was fully considered in the current decision. It also asserts that this Court has no jurisdiction to review a denial of the Secretary to reopen a prior determination.

Although plaintiff argues that the evolving understanding of this condition might be new and material evidence relevant to the 1987 decision and should establish good cause for the Secretary to have reopened that prior determination, both the Supreme Court and the Sixth Circuit have made it clear that this Court has no power to review a decision of the Secretary refusing to reopen a prior application, no matter how erroneous that decision is, unless there is a constitutional claim being asserted by the applicant. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), Blacha v. Secretary, 927 F.2d 228, 231-32 (6th Cir.1990).

BACKGROUND

Plaintiff was born March 9, 1949, and was 41 years of age on July 25, 1990, when the administrative law judge denied disability benefits. Plaintiff worked for Ford Motor Company as a material handler, checker, and assembler. This work was classified by the vocational expert as being, respectively, unskilled medium work, semiskilled light to medium work, and unskilled light work. Plaintiff last worked on January 6, 1986. Plaintiff has a high school education (R. 38).

Administrative Law Judge's Decision

Judge Varga found that plaintiff had a "severe probable small herniated disc at L5-S1 with mild facet arthropathy, status post reactive arthritis, and mild dysthymia" (R. 26). He found that these did not meet the Listing of Impairments. The ALJ found further that "claimant's testimony is generally credible; however, the objective medical evidence does not support the alleged severity of her symptomatology" (R. 26). Judge Varga found that plaintiff was unable to perform her past relevant work as a material handler, checker, or assembler. He found that plaintiff had a residual functional capacity for a limited range of sedentary work, with restrictions in walking and standing, allowing a sit/stand option, and limitations on writing, pushing, pulling, using ladders, and working around unprotected heights or moving machinery (R. 26). He found further that plaintiff's capacity for a full range of sedentary work was reduced by her pain and mild depression. Using Medical-Vocational Guideline 201.28 as a framework for decision, in conjunction with vocational expert testimony, the ALJ found that plaintiff could perform a significant number of jobs, including entry level bench work, subassembly, packaging, sorting, and visual inspection (R. 27).

The vocational expert testified that if plaintiff's testimony were credited, either of two conditions would preclude her ability to work. The first condition is the combination of her joint and leg pain, sleep disturbance, and headaches (R. 57). Secondly, the VE stated that "the allegations associated with fatigue would be preclusive of competitive employment by itself, regardless of the cause" (R. 57).

In the present application, plaintiff's major argument is that the ALJ gave her Chronic Fatigue Syndrome inappropriate consideration. The ALJ did not find that to be a severe impairment. The ALJ finding was not the opinion of plaintiff's treating physician, Dr. Jean Marie Pierre, M.D., who found that plaintiff not only suffered from chronic Epstein-Barr Virus Syndrome, but also concluded that "there is no way she could have functioned in a competitive employment environment" (R. 268).

The hypothetical question asked of the vocational expert, upon which the Secretary bases his decision, does not consider fatigue or any of the other symptoms associated with Chronic Fatigue Syndrome. Because the Secretary found that plaintiff could not perform her past relevant work, the burden has shifted to the Secretary to demonstrate there are other jobs in the national economy that plaintiff can perform. Allen v. Califano, 613 F.2d 139 (6th Cir.1980). In this case, the issue is whether there is substantial evidence in the record for the ALJ to discount the opinion of plaintiff's treating physician and, further, to discount the credibility of plaintiff's testimony.

There is little dispute as to what constitutes the medical evidence in the present case. I asked plaintiff's counsel to state with specificity those areas of the ALJ's opinion that were incomplete, inaccurate, or mischaracterized the evidence. A copy of the ALJ's findings of fact, as supplemented by the comments of plaintiff's counsel, is included in plaintiff's motion for summary judgment. The ALJ's Report with counsel's annotations, as well as the statement of facts in support of the Secretary's motion for summary judgment, provide an adequate summary of the facts and plaintiff's medical history for purposes of this review.

ANALYSIS

Standard of Review

This Court must review whether the Secretary's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Sherrill v. Secretary of HHS, 757 F.2d 803, 804 (6th Cir.1985). Substantial evidence has been defined as "more than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Furthermore, the Secretary's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). The substantial evidence standard presupposes that there is a "zone of choice" within which the Secretary may proceed without interference from the courts. Id. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm. Kirk v. Secretary of HHS, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Studaway v. Secretary of HHS, 815 F.2d 1074, 1076 (6th Cir.1987).

Medical Evidence

In evaluating the residual functional capacity of a plaintiff for purposes of a hypothetical question or otherwise, the Secretary should take a common sense approach, viewing the claimant as a whole. Paris v. Schweiker, 674 F.2d 707, 710 (8th Cir.1982). According to the court in McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982):

Residual functional capacity anticipates the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.

As noted in King v. Heckler, 742 F.2d 968, 975 n. 2 (6th Cir.1984), where the "medical evidence is entirely consistent, as here, the importance of credibility findings is substantially decreased." Conversely, this would suggest that where the medical evidence, although not disputed, is divergent as to the cause of plaintiff's conditions, and focused on different aspects of plaintiff's symptoms, the importance of the credibility findings regarding the plaintiff would be substantially increased. The importance of the credibility findings regarding the plaintiff would also be enhanced because the methods for diagnosing...