Kuhn v. Comm Social Security , 124 F. App'x 943 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0166n.06
Filed: March 3, 2005
NO. 03-2608
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LUCILLE JOHNSON KUHN, )
)
)
Plaintiff-Appellant, )
)
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
)
COMMISSIONER OF SOCIAL SECURITY, )
)
)
Defendant-Appellee. )
______________________________________
BEFORE: SILER, BATCHELDER, and DAUGHTREY, Circuit Judges.
PER CURIAM. The claimant, Lucille J. Kuhn, appeals from the latest denial of her
application for Social Security disability benefits. Before this court, she asserts that the
administrative law judge erroneously concluded that she had not established entitlement
to payments for physical limitations that allegedly prevented her from finding employment
within the national economy. For the reasons set out below, we affirm the decision of the
district court sustaining the denial of benefits by the Commissioner of Social Security.
FACTUAL AND PROCEDURAL BACKGROUND
Kuhn worked in Detroit, Michigan, as a janitor and a machine operator until August
1990, when she was attacked outside her place of employment, shot at, and hit in the head
with the end of a shotgun. Since that incident, she has not returned to gainful employment
and has complained of, among other ailments, weakness in her dominant right hand and
severe migraine headaches.
In March 1991, Kuhn filed the first of her applications with the Social Security
Administration seeking disability benefits. That claim was denied by an administrative law
judge who determined that the plaintiff could return to her past type of employment. The
Appeals Council upheld that ruling, which was not appealed further by the claimant. In
January 1995, Kuhn filed a second application for benefits and was again denied the relief
she sought at the administrative level. Finally, in April 1996, Kuhn filed the present
application for benefits. Again, the Social Security Administration ruled administratively that
Kuhn did not meet the required disability criteria. She then requested a hearing before an
administrative law judge, who concluded in January 1999 that “there are a significant
number of jobs in the national economy which [Kuhn] could perform [and that] Claimant
was not under a ‘disability,’ as defined in the Social Security Act, at any time through the
date of th[e] decision.” The plaintiff sought review of that determination and presented
additional evidence to the Appeals Council, which nevertheless “concluded that neither the
contentions nor the additional evidence provides a basis for changing the Administrative
Law Judge’s decision.”
-2-
Kuhn then filed an action in the district court, and in response to the complaint, the
government conceded that:
[T]he hypothetical question posed to the vocational expert was flawed, in that
it did not accurately reflect Plaintiff’s functional limitations. Although the
[administrative law judge] asked the vocational expert to assume that the
hypothetical individual “could not sit, stand, walk, lift, carry and push,” he did
not tell the vocational expert to assume the individual had “very little use of
the dominant right hand.” As the right hand limitation was not posed to the
vocational expert, Defendant acknowledges that the SSA did not meet its
burden of proving that the claimant has the vocational qualifications to
perform alternative jobs in the economy.
The matter was thus remanded to the administrative law judge for an additional
hearing. At that proceeding, Kuhn again detailed her physical infirmities and described the
debilitating headaches she occasionally suffered. Specifically, she stated that she
sometimes did housework or went to church, that she occasionally visited friends and
walked almost every day to a corner grocery store located approximately one-half block
from her residence. Kuhn also testified that although she could manipulate her arms and
fingers at times and pick up coins and buttons with her right hand, that her dominant hand
was sometimes useless and that “sometimes, [she couldn’t] even write with [her] hand.”
She also reiterated that she suffered from migraine headaches twice or three times per
month and that the episodes lasted “like two day[s], sometimes three.”
Near the conclusion of the hearing, the administrative law judge questioned the
vocational expert regarding Kuhn’s exertional capabilities. In response to that inquiry, the
vocational expert informed the administrative law judge that Kuhn “could perform jobs that
could be done primarily with the non-dominant hand on a regular basis. They would not
-3-
require lifting more than five pounds. Example [sic] would – of jobs that could be performed
would include visual inspection and machine tending.” The vocational expert further
testified that, even taking into account the claimant’s limited use of her right hand, at least
5,000 such jobs existed in the region.
When asked by the administrative law judge to consider Kuhn’s non-exertional
limitations (her migraine headaches), however, the vocational expert testified that there
were no jobs in the region that the plaintiff could perform satisfactorily. In explaining his
answer, the expert pointed out that the headaches occurred two to three times per month
and lasted two to three days at a time. Additionally, he noted that “[t]he medication she
takes causes her to become very drowsy.”
In ruling upon Kuhn’s application for benefits, the administrative law judge agreed
with the vocational expert’s analysis of the plaintiff’s exertional capabilities and concluded
that she was not physically precluded from performing any relevant work in the applicable
labor region. The administrative law judge refused, however, to agree with the vocational
expert’s assessment of Kuhn’s non-exertional capabilities. Finding the claimant’s testimony
“not fully credible,” the administrative law judge determined that Kuhn “was not under a
‘disability’ as defined in the Social Security Act” and, therefore, was not entitled to the
benefits she sought.
On appeal to the district court, the parties agreed to refer the matter to a magistrate
judge for resolution. After review of the administrative record, Magistrate Judge Binder
-4-
ruled that substantial evidence in the record supported the decision of the administrative
law judge and, therefore, that the findings of the Commissioner should be affirmed.
DISCUSSION
Our review of a decision of the Commissioner of Social Security, made through an
administrative law judge, is extremely circumscribed and is limited to “determining whether
the . . . findings are supported by substantial evidence and whether the [commissioner]
employed the proper legal standards in reaching [the] conclusion.” Brainard v. Sec’y of
Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989)(per curiam). As noted by the
United States Supreme Court, the term “substantial evidence” means “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation
omitted). Thus, “[w]e do not review the evidence de novo, make credibility determinations
nor weigh the evidence.” Brainard, 889 F.2d at 681. If supported by substantial evidence,
the commissioner’s decision must be affirmed, even though the reviewing court might
decide the matter differently and even though substantial evidence also supports a contrary
conclusion. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).
In analyzing Kuhn’s claim for disability benefits, the administrative law judge properly
utilized the five-step sequential analysis detailed in 20 C.F.R. § 404.1520, and ultimately
determined that numerous jobs were indeed available for individuals like the plaintiff who
had limited use of their dominant hand. Although Kuhn argues that she cannot use her
right hand to perform tasks and, therefore, that there is no substantial evidence in this
-5-
administrative record to support the administrative law judge’s decision, our limited
standard of review mandates a different conclusion.
Upon the remand of this matter, the administrative law judge specifically inquired of
the vocational expert whether his prediction that there were “at least 5,000" jobs that Kuhn
could perform included consideration of “the limited use of [Kuhn’s] right hand.” Moreover,
the administrative law judge’s decision to ask about situations in which a claimant had
“limited,” rather than no, use of a dominant hand was justified by the hearing testimony.
For example, despite detailing various difficulties in reaching with and using her right arm
and hand, Kuhn admitted under oath that she could“manipulate [her] arms and fingers” “at
times,” that she could “pick up coins from a table” “sometimes,” and that she could
“sometimes” “button [her] buttons.” Additionally, the record reflects that the plaintiff
performed household tasks, went to church, visited friends, and shopped for groceries.
Under such circumstances, we cannot say that there is not substantial evidence in the
record to support the conclusions of the administrative law judge that Kuhn retains some
functioning in her right hand and that there exist jobs in the economy that the plaintiff is
suited to perform.
During the second administrative hearing, the administrative law judge also asked
the vocational expert whether Kuhn’s complaints of migraine headaches, together with
evidence of the limited use of her dominant hand, would preclude her re-entry into the
workforce. Although the vocational expert concluded that “[t]here’s no jobs she could do”
considering the two limitations, the administrative law judge did not concur in that opinion
-6-
because of his belief that Kuhn was not completely credible in her testimony regarding the
effects of the migraine headaches upon her.
Without question, Kuhn’s own testimony supports the conclusion that her
headaches, which she claimed occurred two to three times per month and lasted for two
to three days at a time, would severely hamper her ability to engage in any job for which
she would be qualified. As fact-finder, however, the administrative law judge was not
required to accept Kuhn’s description of her limitations. In this matter, substantial evidence
in the record also supports a determination that the claimant was not as debilitated from
her migraine headaches as she claimed to be. For example, the administrative law judge
noted that as early as June 1991, although Kuhn complained of “intermittent” migraine
headaches, she was actively seeking other employment at that time, exhibited no evidence
of neurological disability, and was told that she could return to her past work on a full-time
basis. After a subsequent evaluation in September 1991, the examining physician found
Kuhn to be neurologically “normal” and surmised that the claimant’s headaches were
compounded by depression and would respond favorably to appropriate treatment with
anti-migraine medication.
During an April 1993 visit to a physician, Kuhn reported that her migraines were less
severe while taking Elavil. Later appointments, however, revealed little change in the
claimant’s condition and her Elavil prescription was discontinued in December 1993.
Nevertheless, by July 1995, Kuhn claimed that “Motrin does help to alleviate the headaches
sometimes.” Furthermore, after an examination in August 1996, a medical doctor
-7-
concluded that Kuhn’s “condition is not severe enough to keep [her] from working, ”despite
taking only Tylenol 3 as needed for her migraines.
In short, both the claimant’s testimony and medical findings support the assertion
that Kuhn suffered during the relevant time period from migraine headaches. The plaintiff’s
own statements provide substantial evidence of the disabling character of that malady.
Additional medical data, however, also supports the administrative law judge’s conclusion
that those headaches were rendered less severe by medication and that Kuhn should not
be considered “disabled” as a result of those episodes. The plaintiff has, therefore, failed
to establish any error in the administrative law judge’s ultimate determination.
Finally, Kuhn asserts that the magistrate judge should have considered certain
evidence submitted to the Appeals Council but not evaluated by the administrative law
judge upon remand from this court. As argued by the commissioner, however, this court
has repeatedly held that evidence submitted to the Appeals Council after the decision of
the administrative law judge “cannot be considered part of the record for purposes of
substantial evidence review.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). “The
district court can, however, remand the case for further administrative proceedings in light
of the evidence, if a claimant shows that the evidence is new and material, and that there
was good cause for not presenting it in the prior proceeding.” Cline v. Comm’r of Soc. Sec.,
96 F.3d 146, 148 (6th Cir. 1996).
The administrative law judge rendered his final decision in this matter on May 23,
2002. After release of that opinion, the claimant “submitted additional records from the
-8-
Henry Ford Health System dated August 3, 1994 to January 25, 2002 and a medical report
dated March 19, 2002 from Mune Gowda, M.D.” Kuhn offers no compelling explanation
for her failure to introduce these pieces of evidence during the hearing before the
administrative law judge, or at least prior to the release of the administrative law judge’s
decision. Furthermore, Kuhn has not shown that the evidence she proffered was so
material that the administrative law judge would have decided the case differently had he
considered the evidence. See, e.g., Sizemore v. Sec’y of Health and Human Servs., 865
F.2d 709, 711 (6th Cir. 1988) (per curiam). In fact, some of the additional evidence
provides further support for the administrative law judge’s determination that Kuhn’s
migraines were not so severe as to be considered disabling. For example, one report the
plaintiff sought to offer notes that Kuhn was given Imitrex nasal spray for her migraines and
the claimant herself “states that this is working wonderfully for her.” Also, another medical
report of a doctor’s visit in December 1997 states that Kuhn was given a new migraine
medication in the summer of 1997 and that it “was very effective.” The magistrate judge
thus did not err in refusing to consider the late-offered evidence and in refusing to remand
the case yet another time for further consideration of those reports by the administrative
law judge.
The standard of review authorized in Social Security disability cases is extremely
limited. Even if we were to agree with the plaintiff that benefits were justified, we are not
permitted to reverse an administrative determination if substantial evidence supports that
decision. Because substantial evidence properly before the administrative law judge in this
-9-
matter does indeed support his conclusion that Kuhn is not disabled, we AFFIRM the
district court’s judgment sustaining the final agency decision.
- 10 -