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HAESKE v. BARNHART, (E.D.Mich. 2002)

TAMMY HAESKE, Plaintiff v. JO ANNE B. BARNHART, COMMISIONER OF
SOCIAL SECURITY, Defendant
Case No. 01-CV-73883-01
United States District Court, E.D. Michigan, Southern Division
July 30, 2002

REPORT AND RECOMMENDATION

STEVEN D. PEPE, United States Magistrate Judge

Plaintiff Tammy Haeske has brought this action under 42 U.S.C §
405(g) to challenge a final decision of defendant Commissioner denying
her application for Social Security disability benefits under Title II of
the Social Security Act. Both parties have filed summary judgment motions
which have been referred for report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B). Because the record demonstrates substantial
evidence to support the Commissioner's decision, summary judgment for the
Defendant is RECOMMENDED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural History

Plaintiff applied for Social Security disability benefits on April 26,
2000, alleging a disability onset date of August 13, 1993. Plaintiff
asserted back and knee pain, headaches, chronic bronchitis, sinusitis,
gamma G immunoglobin deficiency, and nauseous side-effects from
prescription medication as her impairments. Plaintiff's claim was denied
initially.[fn1] Plaintiff requested and received a bearing, conducted on
February 6, 2001. Administrative Law Judge Richard Nelson issued a
decision on March 27, 2001, finding Plaintiff not disabled because she
could perform jobs existing in significant numbers in the national
economy. The Appeals Commission denied review, leaving the ALJ's decision
as the final decision of the Commissioner. Plaintiff seeks judicial
review of this decision pursuant to 42 U.S.C. § 405(g).

B. Plaintiff's Background

Plaintiff was born on March 16, 1963, and was thirty-eight years old
when the ALJ denied her claim. She graduated high school, and had worked
in the past as a house cleaner, secretary, and restaurant assistant
manager. Hearing Transcript at 14. Plaintiff was involved in a motor
vehicle accident on August 18, 1998, and had not held gainful employment
since that date. Id. at 15. Plaintiff's last date of insured status was
December 31, 1999. Id. at 77-78.

On May, 10, 2000, Plaintiff completed a daily activities log pursuant
to her claim for disability benefits. Id. at 94-100. Along with her claim
of being unable to work, Plaintiff noted her inability to properly care
for her home, limited ability to cook or shop for groceries, or play with
her son as results of her physical condition. Id. at 94-95, 100.
Plaintiff noted that she watched three to four hours of talk shows on
television, and read for about thirty minutes per day. Id. at 96.

At the administrative hearing on February 6, 2001, Plaintiff testified
that she was unable to work due to chronic headaches, sinus infections,
back and knee pain. Id. at 35. She stated that she took various
prescription medications, including Fioricet for her headaches, which
caused her to be drowsy. Id. at 38-39. Plaintiff now said that she
watched one hour of television per day and that no doctor gave her an
exercise program to follow. Id. at 33-34. Plaintiff claimed that she
could stand for ten to fifteen minutes, walk for fifteen minutes, sit for
fifteen to twenty minutes, and lift ten to twelve pounds. Id. at 35-36.

C. Medical Evidence

On August 30, 1998, Plaintiff sought treatment at a neurology clinic,
and was treated by Dr. Raganathan, M.D. Id. at 168-170. Plaintiff
complained of headaches, and examination revealed some lower back pain.
Id. Dr. Raganathan noted that a CAT scan was not done in the emergency
room after Plaintiff's motor vehicle accident, and he ordered a computed
topography (CT) of Plaintiff's brain. Id. at 170. He also reported that
Plaintiff smoked one and one-half packs of cigarettes per day. Id. at
169. The CT scan was done on September 18, 1993, and was essentially
negative, although it did show evidence of right frontal sinus
opacification with mucosal thickening also in the left frontal sinus. Id.
at 166. On a follow up visit on September 29, 1998. Dr. Raganathan
prescribed a seven day course of an anti-infective medication, Septra, in
an effort to relieve Plaintiff's headaches. Id. at 167.

On October 20, 1998, Plaintiff commenced treatment with Dr. Schreck,
due to complaints of bilateral knee pain. Id. at 150. Dr. Schreck noted
that Plaintiff walked with a slow, cautious gait and was somewhat
antalgic, favoring her left side more than the right. Id. Dr. Schreck
ordered a magnetic resonance imaging study (MRI) to assess for any
significant inner-knee damage. Id. The MRI was interpreted by a
radiologist as normal, but Dr. Schreck concluded that the MRI suggested a
partial tear of Plaintiff's anterior cruciate ligament, which he suspected
was an old injury. Id. at 149, 151. Dr. Schreck referred Plaintiff to a
program of physical therapy. Id. at 151. On November 10, 1998, Plaintiff
again visited Dr. Schreck, and revealed that she had been performing
physical therapy for her back and neck, but nor her knee. Id. at 149. Dr.
Schreck instructed Plaintiff to undergo physical therapy for her knee.
Id. on January 12, 1999, Plaintiff reported no significant improvement
with physical therapy, and Dr. Schreck discussed arthroscopic diagnostic
surgery with her. Plaintiff desired to pursue this option, but was
apparently stymied by her insurance carrier. Id. at 147-148.

On January 6, 1999, Plaintiff commenced treatment with Dr. Femmenineo,
complaining of neck, back and knee pain. Id. at 139. Upon examination,
Dr. Femmenineo found evidence most suggestive of chronic cervical and
lumbosacral strain, and evidence of a possible medial meniscus injury
bilaterally, and possible mild traumatic brain injury. Id. at 139-140.
Dr. Femmenineo suggested discontinuing the current course of physical
therapy, and recommended a health club membership including an aggressive
exercise program and exercise in water. Id. Dr. Femmenineo also
prescribed a nonsteroidal anti-inflammatory medication, and requested
x-rays of Plaintiff's lumbosacral spine which revealed a bony density in
the corner of the anterior and superior aspect of the third and fourth
lumbar vertebrae, most likely a developmental anomaly. Id. at 142, 137.
Dr. Femmenineo was to reexamine the Plaintiff in three weeks time, and
instructed Plaintiff to stay off work until then. Id. at 140. On January
27, 1999, Plaintiff met again with Dr. Femmenineo, and reported no
significant improvement over the last three weeks. Plaintiff had not
taken the anti-inflammatory because of a history of gastritis. Id. at
137. Dr. Femmenineo again recommended an exercise program in water, and
prescribed a cox-II inhibitor, Celebrex, which was unlikely to affect
Plaintiff's stomach. Id. Dr. Femmenineo also requested a total body bone
image, and was to reevaluate Plaintiff in four weeks time, instructing
Plaintiff to remain off work until then. Id. at 138. On February 8,
1999, Plaintiff had a total body x-ray at St. John Hospital. Id. at 136.
On February 22, 1999, Plaintiff met with Dr. Femmenineo, and reported
same improvement with the ten-day course of Celebrex. Id. at 135. Dr.
Femmenineo again encouraged Plaintiff to exercise in water, and
determined that while work as a housekeeper would be inappropriate,
Plaintiff could work at a sedentary job. Id. On March 22, 1999, Plaintiff
again met with Dr. Femmenineo, noting no improvement. Dr. Femmenineo
decided to write a prescription for aquatic therapy, and continued to
keep Plaintiff off of work as a housekeeper. Id. at 133. On April 23,
1999, Plaintiff met with Dr. Femmenineo, and reported no improvement.
Id. at 131. Due to insurance difficulties, Plaintiff was unable to go to
aquatic therapy. Id. Dr. Femmenineo encouraged her to at least walk in
water, perhaps during open swim at the local high school. Id.

On August 23, 1999, Plaintiff commenced treatment with Dr. Stephens of
Wood Orthopeadic Associates, complaining of knee pain. Id. at 147.
Plaintiff reported that due to insurance problems, Dr. Schreck had not
performed surgery earlier in the year. Id. Dr. Stephens recommended
arthroscopic surgery, performed on September 7, 1999 at Bon Secours
Cottage Health Services. Id. at 146. On September 16, 1999, Plaintiff met
with Dr. Stephens to go over the arthroscopy results. Id. at 145. There
was evidence of an old partial tear of the ACL, some chondromalacia
(softening of the cartilage) of the platella and mediolateral
compartments, but no major arthritic change. Id. Dr. Stephens recommended
a physical therapy program to rehabilitate the ACL. Id. On October 7,
1999, Plaintiff again visited Dr. Stephens, reporting low back pain. Id.
at 144. Plaintiff had not yet begun physical therapy for her knee. Id.
Dr. Stephens examination revealed nothing out of the ordinary, other than
Plaintiff's complaints of pain in the lumbosacral junction. Id. Dr.
Stephens recommended physical therapy for Plaintiff's back as well as her
knee. Id.

On November 12, 1999, Plaintiff commenced treatment whit Dr. Riley,
D.O. complaining of two years of sinus trouble, and chronic headaches.
Id. at 175. Dr. Riley scheduled sinus surgery for November 17, 1999. Id.
On December 7, 1999, Plaintiff again visited Dr. Riley, and reported that
her sinuses her better following the surgery. Id. at 176. Plaintiff
continued complain of headaches, and stated that she wanted to quit
smoking. Id. From January 7, 2000, to December 15, 2000, Plaintiff
visited Dr. Riley fifteen times. Id. at 177-192. Plaintiff's complaints
ranged from dry skin on her eyelid to poor eating habits, Id. at 177,
180. Plaintiff continually complained of dry cough, and sinus drainage
problems. Id. at 177-192. Dr. Riley documented Plaintiff's complaints, and
renewed her prescriptions. Id. In February and March of 2000, Dr. Riley
referred Piaintiff to an orthopedic surgeon due to her complaints of knee
and back pain. Id. 181-182.

On February 5, 2000, Plaintiff went to the St. John Hospital emergency
room, complaining of a severe sore throat. Id. at 129. Plaintiff was
diagnosed with Pharyngitis and released from care. Id. at 128-129.

On March 13, 2000, Plaintiff commenced treatment with Dr. Pokriefka of
Metro Infection Specialists, complaining of frequent sinus infections.
Id. at 196. Dr. Pokriefka noted that Plaintiff had multiple sinus
problems, frequent upper respitory tract infections and skin infections.
Id. He diagnosed Plaintiff had a gamma G immunoglobin deficiency, and
prescribed IgG replacement therapy. Id. at 197. Thereafter, Plaintiff
underwent IgG replacement therapy monthly from May, 2000, to October,
2000. Id. at 210-216. On July 31, 2000, Plaintiff reported that she had
not had an infection in two months. Id. at 217.

On November 1, 2000, Plaintiff returned to Neurological Rehabilitation
Associates and was seen by Dr. Elechi. Id. at 163-165. He noted the
earlier visits to his colleague Dr. Raganathan, and that Plaintiff
currently had prescriptions for Claritin, Levaquin, Albuteral inhaler,
Fioricet and Prednisone. Id. Plaintiff reported smoking about one and
one-half packs of cigarettes per day. Id. at 164. Upon examination, Dr.
Elechi found no cough or difficulty breathing, and that Plaintiff's gait
and other systems appeared normal. Id. at 163-164. There was no evidence
of neurological damage. Id. Dr. Elechi prescribed Elavil, an
anti-depressant with sedative effects, prescribed for treatment of
symptoms of depression. Id.; Physician's Desk Reference, 2001, pg. 626.

Dr. Schreck completed a medical examination report related to
Plaintiff's claim for disability benefits. Id. at 221-222. Dr. Schreck
concluded that Plaintiff was limited to work involving lifting and
carrying five pounds occasionally, standing up to one hour per eight hour
work day, walking for one to two hours per eight hour work day, and
sitting for up to thirty minutes at a time, and no operation of foot
controls. Id. at 222. Dr. Schreck concluded that Plaintiff had no mental
limitations, and could perform grasping, reaching, pushing, pulling and
fine manipulation with both upper limbs. Id.

At the hearing on January 7, 2002, Dr. Steiner testified as a medical
expert. Dr. Steiner reviewed the medical evidence and concluded that
Plaintiff had the ability to perform sedentary work involving no
operation of foot pedals, the primary reason for the limitation being
Plaintiff's ongoing knee problems. Id. at 43.

D. Vocational Evidence

At the hearing, testimony was given by Ms. Pauline Pegrem, M.A., a
Vocational Expert (VE). The ALJ posed the following hypothetical to the
VE:

"Please assume a thirty-seven year old person with a
high school education and work experience as a house
cleaner, a secretary, assistant manager in a
restaurant, who is impaired by chronic headaches,
sinusitis, bronchitis, lower-back pain, neck, knee
pain from a motor vehicle accident. She takes
medications and as a result, she should not be
able, be required to lift or carry more than ten
pounds, stand or walk two hours in an eight hour day
and sit six. Her weight should be limited
accordingly in the push and pull. Should not be
required to work [in] work requiring foot pedals,
and because of the medications, the position should
not be more than simple, unskilled work. Considering
these limitations, state your opinion as whether or
not there's work for such a person that exists in
our economy."

Id. at 48. The VE responded that work in unskilled, sedentary occupations
would be available to such a person. Such work is generally clustered in
the industrial manufacturing area, and consists of simple sorting,
packaging inspection, and assembly performed at a bench or table. The VE
testified that there are 25,000 such jobs in Michigan, about one half of
which are in the southeast Michigan area. The VE testified that another
area of employment that such a person could participate in is entry level
service jobs, such as information clerk, lobby attendant, telephone
marketing clerk, and some unskilled cashiers. The VE testified that some
15,000 such jobs exist in Michigan, with one half in the southeast
Michigan area.

II. ANALYSTS

A. Standard of Review

In adopting federal court review of' Social Security administrative
decisions, Congress limited the scope of review to a determination of
whether the Commissioner'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 "[m]ore 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 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Furthermore, the
Commissioner'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 Commissioner may proceed without interference from the courts.
Id. If the Commissioner's decision is supported by substantial evidence,
a reviewing court must affirm. Studaway v. Secretary of HHS, 815 F.2d 1074,
1076 (6th Cir. 1987); Kirk it Secretary of HHS, 667 F.2d 524, 535 (6th
Cir. 1981), cert. denied, 461 U.S. 957 (1983).

B. Factual Analysis

Plaintiff challenges the ALJ's finding that she could perform a limited
range of sedentary work as unsupported by substantial evidence. Plaintiff
submits that the hypothetical question posed by the ALJ to the VE was
defective and incomplete, and that the ALJ failed to properly consider
the effects of Plaintiff's medication.

The ALJ found that Plaintiff's headaches and the medications to treat
tern are severe enough to limit her to simple, unskilled work, but not
severe enough to preclude her from all work. Hearing Transcript at 17.
There was evidence that Plaintiff has a back, neck and knee condition but
not severe enough to preclude her from performing a wide range of
sedentary exertional work. Id. at 18. Further, Plaintiff's sinusitis does
not prevent her from performing a wide range of sedentary exertional
work. Id. Plaintiff's gamma G immunoglobin deficiency does not preclude
the claimant from performing a wide range of sedentary exertional work.
Id. The ALJ found that Plaintiff retained the following residual
functional capacity: not be able to lift more than ten pounds, not be
able to engage in any prolonged standing or walking, not be able to use
foot pedals, and need to be limited to simple, unskilled work due to the
adverse side effects of her medications. Id. at 19.

The ALJ recognized that the Plaintiff had a number of significant
functional limitations due to her various impairments. He found that
Plaintiff was unable to return to her past relevant work as a
housecleaner, secretary, or assistant manager of a restaurant. Id. The
burden then shifts to the Social Security administration to show that
there are other jobs existing in significant numbers in the national
economy that claimant can perform, consistent with her residual
functional capacity, age, education, and work experience. Id. Based on
the testimony of the VE, the ALJ concluded that considering the
Plaintiff's age, educational background, work experience, and residual
functional capacity, she is capable of making a successful adjustment to
work that exists in significant numbers in the national economy. A
finding of "not disabled" was therefore reached within the framework of
Medical-Vocational Rule 201.28. Id. at 20.

The objective medical evidence is consistent with the ALJ's finding
that Plaintiff could perform simple, sedentary work. Some of Plaintiff's
complained maladies were not independently verified through medical
examination. The ALJ noted that while Plaintiff complained of constant
and severe headaches, the CT scan was essentially negative. Id. The ALJ
noted that Plaintiff's neck, back, and knee problems have not prevented
her from driving fifty to seventy-five miles per week, to her various
doctor appointments and her child's school. Id. at 17. While arthroscopy
showed some evidence of an old partial tear of the ACL, straight leg
raising exercises throughout the medical record were negative. Id.

The Plaintiff testified that she could walk for about fifteen minutes,
stand for ten or fifteen minutes, sit for fifteen to twenty minutes at a
time, bend at the waist, had no trouble with her hands or fingers, lift
ten to twelve pounds and think clearly. Id. at 37. This level of
functional capacity is consistent with the type of work the ALJ concluded
the Plaintiff could perform.

The ALJ's finding that Plaintiff retained the functional capacity to
work in simple, unskilled, sedentary jobs is supported by substantial
evidence in the medical record and hearing testimony offered by the
vocational expert.

III. RECOMMENDATION

For the reasons stated above, it is RECOMMENDED that Plaintiff's motion
for summary judgement be DENIED, and that Defendant's motion for summary
judgment be GRANTED.

Any objections to this Report and Recommendation must be filed within
ten (10) days of its service. 28 U.S.C. § 636(b)(1); E.D.Mich. LR
72.1(d)(2). Failure to file objections within the specified time
constitutes a waiver of any further right of appeal. Thomas v. Arn,
474 U.S. 140 (1985); Ivey v. Wilson, 832 F.2d 950, 957-58 (6th Cir.
1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Pursuant
to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served
upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed
objections, the opposing party may file a response. The response shall be
not more than twenty (20) pages in length unless by motion and order such
page limit is extended by the Court. The response shall address
specifically, and in the same order raised, each issue contained within
the objections.

[fn1] Plaintiff's case was part of an Agency pilot program that tested
the elimination of the reconsideration level between initial rejection
and bearing. Thus, following initial rejection, Plaintiff was permitted
to request a bearing before an administrative law judge.

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