PATRICK J. DUGGAN, District Judge.
On July 14, 1999, plaintiff Jill Herriman filed the present action after an Administrative Law Judge ("ALJ") denied her application for Disability Insurance Benefits and the Appeals Council denied her request for review of the ALJ's decision. Plaintiff comes to this Court, under 42 U.S.C. § 405 (g), requesting that "the decision of the Commissioner be reviewed, reversed and set aside and the claim of the Plaintiff for disability insurance benefits be allowed. . . ." (Compl. at 3).
On November 2, 1999, plaintiff filed a motion for summary judgment. On December 14, 1999, defendant also filed a motion for summary judgment. The Court referred these motions to Magistrate Judge Steven D. Pepe, who issued a report and recommendation ("RR") on December 29, 1999. Magistrate Judge Pepe recommended that the Court deny defendant's motion, grant plaintiff's motion in part, and remand the case for further proceedings "to determine the effect upon the vocational expert's opinion if she were to consider that plaintiff often has deficiencies of concentration as found by the ALJ." (RR at 12-13). The magistrate judge concluded that due to a flaw in a hypothetical question, the answer to that question could not serve as substantial evidence to support the ALJ's finding. (RR at 12).
On January 13, 2000, defendant filed objections to the R R; therefore, this Court reviews de novo those portions of the RR that defendant finds objectionable. See 28 U.S.C. § 636 (b)(1)(C); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Discussion
"[D]isability insurance benefits are available only to those individuals who can establish `disability' within the terms of the Social Security Act." Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). "Disability" is defined as:
[T]he inability 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.;
42 U.S.C. § 423(d)(1)(A) and
42 U.S.C. § 1382c(a)(3)(A).
See also Preslar v. Secretary of Health and Human Servs.,
14 F.3d 1107, 1110 (6th Cir. 1994). The burden of proving entitlement to benefits is borne by the claimant.
Boyes v. Secretary of Health and Human Servs.,
46 F.3d 510, 512 (6th Cir. 1994).
In making disability determinations, defendant employs a five-step sequential process. "The burden of proof is on the claimant throughout the first four steps . . . to prove that he is disabled. If the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the [defendant]." Preslar, 14 F.3d at 1110. "Step five requires the [Commissioner] to show that the claimant is able to do other work available in the national economy. . . ." Id. Defendant's five-step sequential process is as follows:
1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition.
2. An individual who is working but does not have a "severe" impairment which significantly limits his [or her] physical or mental ability to do basic work activities is not disabled.
3. If an individual is not working and has a severe impairment which "meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment(s)", then he [or she] is disabled regardless of other factors.
4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's previous work. If the claimant is able to continue to do this previous work then he [or she] is not disabled.
5. If the claimant cannot do any work he [or she] did in the past because of a severe impairment, then the Secretary considers his [or her] residual functional capacity, age, education, and past work experience to see if he [or she] can do other work. If he [or she] cannot, the claimant is disabled.
Id.; see 20 C.F.R. § 404.1520 (1982).
See also Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1953, 76 L.Ed.2d 66 (1983).
The ALJ found that plaintiff possessed the residual functional capacity "to perform the nonexertional requirements of work except for performing more than simple 1 to 2 step unskilled work with limited contact with the public and in a relatively clean air environment." (Tr. 18).
Standard of Review
Under 42 U.S.C. § 405 (g):
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action. . . . The court shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .
42 U.S.C. § 405 (g) (emphasis added).
See Boyes, 46 F.3d at 511-12;
Abbott v. Sullivan, 905 F.2d at 922. "Substantial evidence is defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Id. at 922-23 (quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 29 L.Ed.2d 842 (1971)). The Commissioner's findings are not subject to reversal because substantial evidence exists in the record to support a different conclusion.
Mullen v. Brown, 800 F.2d 535, 545 (6th Cir. 1986) (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm.
Studaway v. Secretary of Health and Human Servs.,
815 F.2d 1074, 1076 (6th Cir. 1987).
Defendant's Objection
Defendant "object[s] to the Magistrate Judge's finding that the ALJ's hypothetical question was flawed." (Obj. at 2). This Court rejects defendant's objection.
A vocational expert's ("VE") testimony must be based upon a hypothetical question that accurately portrays the claimant's physical and mental impairments. Varley v. Secretary of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). It is undisputed that the hypothetical question posed to the VE did not take into account plaintiff's "deficiencies in concentration." Thus, the hypothetical that the ALJ posed to the VE did not comply with the strictures of Varley, and a remand is proper. Upon remand, the ALJ should determine the effect upon the VE's opinion if he or she were to consider that fact that plaintiff often has deficiencies in concentration.
Accordingly, for the reasons sot forth above and for the reasons set forth by the magistrate judge in the RR, defendant's motion for summary judgment shall be denied, and plaintiff's motion for summary judgment shall be granted in part, and this case shall be remanded for further proceedings.
An Order consistent with this Opinion shall issue forthwith.
PATRICK J. DUGGAN UNITED STATES DISTRICT JUDGE
Pursuant to Rule 77(d), FED.R.Civ.P. copies mailed this date to the following parties:
Kenneth F. Laritz, Esq. 15501 Metropolitan Parkway Suite 100 Clinton Township, MI 48036-1684
Karen M. Gibbs, A.U.S.A. 211 West Fort St. Suite 2001 Detroit, MI 48226-3211
Shefali N. Baxi Asst. Regional Counsel 200 West Adams St. 30th Floor Chicago, IL 60606