Unpublished Dispositionvirginia Powell, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 812 F.2d 1408 (6th Cir. 1987)

Appellant Virginia Powell appeals from the decision of the district court affirming the Secretary's denial of disability benefits.

Appellant Powell filed an application for disability insurance benefits on January 22, 1981, claiming a disability onset date of April 2, 1978. A hearing was held, and on January 29, 1982, the Administrative Law Judge (ALJ) denied her request for disability benefits. The decision of the Appeals Council was appealed to the district court. The district court remanded the case because the ALJ erred in relying solely on the grid. The district court opined that because non-exertional impairments were present it was improper to rely on the grid. Pursuant to the remand order, the Secretary obtained additional medical and psychological evidence.

On July 19, 1984, the ALJ found that Powell was not disabled. He determined that Powell was able to perform sedentary work with a sit-stand option, and since her last job was in this category, he reasoned that there was no need to determine if the appellant could perform other work. However, the ALJ determined that even were he to find that Powell could not perform her former job, she was able to perform other work. The ALJ relied on the grid as a guide as well as the testimony of a vocational expert, to reach this conclusion. The Appeals Council denied Powell's request for review on September 7, 1984. On October 28, 1985, the United States District Court affirmed the Secretary's decision. Claimant filed this timely appeal.

Powell was born on June 18, 1924, and was 59 years old at the time of the second hearing. She is a widow and she has a high school education.

Powell's most recent job was that of an assembler. As an assembler, Powell performed final assembly work of a light exertional level and subassembly work of a sedentary exertional level. The vocational expert, Dr. Fortiu, considered these jobs to be semi-skilled, and felt that these jobs provided skills transferable to other occupations. Such skills included the ability to apply varied techniques in the manufacture and assembly of electronic products, the ability to perform a variety of assembly tasks and to adjust to a change in assembly tasks, the ability to be perceptive to detail, the ability to use hand tools, and the ability to work in accordance with instructions.

Prior to working as an assembler, Powell worked as a machine operator. This job was characterized by Dr. Fortiu as unskilled work, ranging from light to medium in exertional level. Powell had performed other unskilled work as well.

Powell alleges that she became disabled on April 2, 1978. Powell injured her back when she slipped in the parking lot at work in March of 1978. She testified that she has both sharp and dull pain in her lower back, and that the pain worsens when she walks. Appellant also states that she experiences a burning sensation and pain in her legs just above the knees. Powell stated that as a result of her impairments her ability to stand and sit is limited to about 20 to 30 minutes for each activity. She has difficulty climbing stairs, but she is able to dress and feed herself and care for her personal needs. She is also able to perform light household chores, such as sewing, dusting, washing dishes, cooking and making the bed.

Powell underwent back surgery in 1971 and carpal tunnel surgery on her right upper extremity in 1977. Although she had returned to work after her surgeries in 1971 and 1977, she has not returned to work since her fall in March of 1978.

Since her fall, several physicians have examined Powell. Dr. Zachary Endress examined Powell on July 11, 1978. He found tenderness throughout the lumbar spine and noted that straight leg raising caused pain in her back and both hips. Dr. Endress noted that he believed Powell's complaints of pain were exaggerated.

Dr. Chess also examined Powell in July of 1978. Powell complained to Dr. Chess that she could not sit or stand for a long period and that she was unable to bend at the waist because of pain. There was some subjective weakness of the right lower extremity and a depressed right ankle jerk. Because of her complaints of increasing pain in September of 1978, she was referred to a pain clinic for treatment.

Powell was hospitalized in February of 1979 as a result of low back pain. Although Dr. Michael Fugle recommended a lumbar myelogram, Powell refused to undergo the procedure. Dr. Fugle's diagnoses were acute lumbar myositis and chronic lumbosacral sprain and strain. A follow-up examination showed no change in Powell's condition.

Powell was also under the care of Dr. Hamilton. His diagnosis was chronic lumbosacral myositis with nerve root irritation at S1 on the right. His report of September 12, 1979, indicated that in the past nine months Powell had made little or no progress and that he believed she was presently unable to work. Dr. LePere, an associate of Dr. Hamilton's, stated in November of 1980, that Powell was totally and possibly permanently disabled. Dr. LePere stated that Powell would be unable to perform a job that entailed prolonged sitting, standing, walking or bending.

In October of 1981, Dr. Seo examined Powell. This physician found no neurological disorder but treated her for sacroilitis. Dr. Seo noted that Powell was reluctant to be evaluated and treated and felt her prognosis was rather guarded due to her mental attitude.

Dr. LePere made an updated report on September 2, 1983. He determined that there had been no overall improvement. He felt that only if Powell was 10 years younger, had surgery and did not work for six months would she be able to do sedentary work in the future.

A lumbar myelogram was performed by Dr. Fugle during a hospitalization in September of 1983. His diagnoses were L4 disc degeneration, extradural nerve root adhesions, and acute lumbar myositis.

A consultative examination was performed by Dr. Theodoulou on March 6, 1984. He reported that Powell walked with a normal gait and her lower extremity strength was normal. In evaluating Powell's ability to perform work related activities, Dr. Theodoulou estimated that she was able to sit, that she could stand one-half hour at a time, and that she could lift and carry objects weighing up to 10 pounds. He opined that she could push, pull and handle light objects and could bend occasionally.

A psychiatric consultation in November of 1978, evidenced no significant physical pathology that could be corrected surgically and indicated that emotional factors were strongly suspected as causing her symptomatology. Powell was described as despondent, hostile, and suffering from repressed anger. She was placed on anti-depressant medications.

Christian R. Barrett, a licensed psychologist, evaluated Powell on March 3, 1984. He found that Powell was reasonably cooperative, readily complied with all tasks and directions, displayed a good sense of humor, and had the ability to relate well with other people. Dr. Barrett stated that, " [T]he personality profile does not reveal any elements of mental illness which would prohibit making occupational, personal or social adjustments, although her adaption to new situations is likely to be difficult for her."

A psychiatric examination was conducted by Dr. Fuller on April 7, 1984. He found no impairment of Powell's memory, attention, concentration or sensorium. Dr. Fuller opined that claimant had adopted the role of an invalid, attributing all of her difficulties in life to her back pain. Dr. Fuller diagnosed psychogenic pain disorder which allowed her to escape from working, and granted her benefits which would otherwise be unobtainable.

The only issue on appeal is whether there is substantial

evidence to support the Secretary's decision to deny the

claimant disability benefits. Substantial evidence is

defined as "such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." It is

more than a scintilla, but less than a preponderance.

Richardson v. Perales, 402 U.S. 389, 401 (1971). The scope

of judicial review is limited to determining whether the

findings of fact made by the Secretary are supported by

substantial evidence, and deciding whether the Secretary

employed the proper legal criteria in reaching those

findings. Gibson v. Secretary of Health, Education &

Welfare, 678 F.2d 653 (6th Cir. 1982). Thus, the court may

not try the case de novo by resolving conflicts in the

evidence or deciding questions of credibility.

Powell argues that because of her back and leg pain, her

ability to sit, stand and walk is so limited she cannot

perform even sedentary work. She claims that the medical

and lay testimony clearly support this proposition.

Although Powell states that her pain is so severe she is

unable to work, her testimony does not necessarily

corroborate this since she performs such activities as

crocheting, sewing, dusting, making the bed, cooking,

washing dishes, shopping and driving.

Powell contends that the ALJ attempted to summarily dismiss

her back and leg pain on the basis of her ability to sit

through a 37 minute hearing and on the statements made by

Dr. Endress in his report. We conclude that appellant's

contention is without merit, since the ALJ relied on other

evidence in the record.

Powell further contends that the ALJ substituted his opinion

for that of the physicians. The ALJ found that Powell's

impairments consisted of lumbar myositis, status post-back

surgery and non-severe psychogenic pain disorder with

depression. The ALJ found that the physicians' reports do

not suggest total disability, and that Powell's allegations

of extreme pain and severe restrictions are inconsistent

with the objective medical records. It is our opinion that

the ALJ did not substitute his opinion for that of the

physicians. Although the reports of the physicians show

that Powell's physical activity is limited because of her

pain, these reports do not suggest total disability but

indicate a capacity for sedentary activity.

Appellant relies heavily on Dr. LePere's report in which he

stated that Powell was "disabled" and unable to work.

However, as the ALJ noted, there is no indication that Dr.

LePere's use of the word "disabled" was based on the meaning

of "disabled" as defined by Congress. It is the ALJ's

responsibility to review all the evidence, including

physicians' reports, and to make the ultimate determination

of disability. The ALJ must review both the vocational and

medical evidence, and cannot be bound by a physician's

opinion on the ultimate issue.

Powell also argues that the ALJ erred when he asked the

vocational expert a hypothetical question. The

challenged question reads:

Assume I find the claimant able to sustain an eight hour

work day, working at the sedentary level, with a sit-stand

option, during the course of this she would have the full

use of her upper extermities [sic] for repetitive movements,

and pushing and pulling of arm controls, gross manipulation, reaching.

That she would not be able to use her lower extremities for

repetitive pushing and pulling of leg controls and

that she would be able to bend occasionally.

Would these findings permit performance by the claimant in

any of her previous jobs?

The vocational expert answered the question in the

affirmative. Powell felt that the question was defective

because it did not take into account the medical or lay

testimony or the non-exertional impairments described by Dr.

Fuller. We reject this argument. This question has built

into it many qualifications so that the ALJ could determine

if there are jobs that Powell can perform even though she

does not have full use of each body part. If the ALJ's

conclusions as to Powell's physical limitations and her

residual capabilities are supported by substantial evidence,

clearly this was an appropriate question to ask the vocational expert.

In addition, Powell argues that the ALJ erred in determining

that she could perform her past work. She claims that the

vocational expert first testified that appellant could

perform her former job as a subassembler, but later changed

his mind and opined that she could not. She further

contends that the vocational expert testified that if her

former job required more than occasional bending, she would

be unable to perform that job. The vocational expert did

make a statement to the effect that if claimant's prior job

required frequent bending, she would not be able to perform

it, but the appellant's testimony does not support the

conclusion that she had to bend more than occasionally.

Although it is true that the vocational expert's testimony

could have been more clear, he did testify that appellant

could perform her prior work. The vocational expert

answered the ALJ's hypothetical question in the affirmative,

stating that appellant could do sedentary work with a

sit-stand option, and that there were available jobs that

she could perform. The expert said there were approximately

3,000 of these subassembly jobs in the Detroit area and

6,000 in the State of Michigan.

As previously mentioned, appellant claims that her back pain

is so severe she cannot work. The two-pronged test for

reviewing claims of disabling pain is set forth in Duncan v.

Secretary of HHS, 801 F.2d 847, 853 (6th Cir. 1986):

First, we examine whether there is objective medical

evidence of an underlying medical condition. If there is,

we then examine: (1) whether objective medical evidence

confirms the severity of the alleged pain arising from the

condition; or (2) whether the objectively established

medical condition is of such a severity that it can

reasonably be expected to produce the alleged disabling pain.

See also S.Rep. No. 466, 98th Cong., 2d Sess. 24, reprinted

in 130 Cong.Rec. Sec. 6221 (daily ed. May 22,

1984); Landry v. Heckler, 782 F.2d

1551, 1553-54 (11th Cir. 1986)

(per curiam).

The ALJ found appellant had lumbar myositis, status

post-back surgery and non- severe psychogenic pain disorder

with depression. This satisfies the first part of the test.

However, the ALJ found that appellant's allegations of

extreme pain and severe restriction in functional capacity

were inconsistent with the objective record and were not

credible. These findings are supported by substantial

evidence, and therefore, the first alternative of the second

part of the test is not satisfied. The second alternative

of the second prong of the Duncan test is also not satisfied

because there is substantial evidence in the record to

support the ALJ's conclusion that appellant's medical

conditions are not so severe that they reasonably could be

expected to produce disabling pain.

It is our opinion that there is substantial evidence to

support the Secretary's decision that the

appellant is capable of performing her

past work. Accordingly, the

judgment is AFFIRMED.