Her v. Comm Social Security

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0048P (6th Cir.) File Name: 00a0048p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  YER HER,  Plaintiff-Appellant,   No. 99-1033 v.  > COMMISSIONER OF SOCIAL   Defendant-Appellee.  SECURITY,

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Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 98-00025—Gordon J. Quist, District Judge. Argued: December 14, 1999 Decided and Filed: December 16, 1999* Before: MERRITT and SILER, Circuit Judges; BECKWITH, District Judge.**

* This decision was originally issued as an “unpublished decision” filed on December 16, 1999. On February 1, 2000, the court designated the opinion as one recommended for full-text publication. ** The Honorable Sandra S. Beckwith, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 Her v. Comm’r of Soc. Sec. No. 99-1033

_________________ COUNSEL ARGUED: Timothy A. O’Rourke, HAY & O’ROURKE, Lansing, Michigan, for Appellant. Kathryn A. Beverly, SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL, REGION V, Chicago, Illinois, for Appellee. ON BRIEF: Timothy A. O’Rourke, HAY & O’ROURKE, Lansing, Michigan, for Appellant. Kathryn A. Beverly, SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL, REGION V, Chicago, Illinois, for Appellee. _________________ OPINION _________________ MERRITT, Circuit Judge. Administrative Law Judge Paula Zera denied plaintiff Yer Her’s request for Social Security disability and Supplemental Security Income benefits, a decision which the Commissioner of Social Security affirmed. After plaintiff’s appeal to the District Court, that court also affirmed the decision finding that Yer Her was not disabled. For the reasons laid out below, we AFFIRM the decision of the District Court. In reviewing the decision of the District Court, we must determine whether the Administrative Law Judge’s decision was supported by substantial evidence, which is generally defined as such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971). Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached. See Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). Plaintiff-appellant Yer Her is presently 39 years old, and was 35 years old at the time of the ALJ’s decision. She is 6 Her v. Comm’r of Soc. Sec. No. 99-1033 No. 99-1033 Her v. Comm’r of Soc. Sec. 3

stages one through four, when the claimant is proving the from Laos and is completely illiterate in English. Her’s extent of his impairments. If a claimant does not secure an alleged disabilities include hearing impairments, a mood official “Residual Functional Capacity” assessment by a disorder characterized by depression and fear, and a number medical or psychological examiner, and simply relies on other of mental impairments which Her attributes to a traumatic evidence to prove his impairments, it does not follow that the injury to her head as a child. She was employed from October Commissioner subsequently must provide the RFC 1981 to June 1987 on an assembly line preparing donuts, at assessment at step five. The step five analysis is meant to which time she discontinued that employment in order to care determine, given the severity of the impairments already for her two children. At the hearing before the ALJ, plaintiff proven, whether there are jobs in the economy which a Her testified through an interpreter. Plaintiff Her testified that claimant can perform. she had considerable hearing loss which was only partially aided by hearing aids. In addition, she testified that she could Plaintiff argues that some ambiguous language in Abbott v. not leave the house alone because she could not remember Sullivan, 905 F.2d 918 (6th Cir. 1990), demonstrates that the how to return to her home. Plaintiff Her complained that she burden of proving RFC also shifts to the Commissioner at often cried two or three times per day, and experienced great step five. The pertinent language states that “[a]t this point depression and fear under normal, everyday circumstances. [step five], the Secretary bears the burden of demonstrating Finally, Her noted that she experienced blurred vision, back that, notwithstanding the claimant’s impairment, he retains pain, and a pain and “heaviness” in her head, all of which she the residual functional capacity to perform specific jobs attributed to the head injury she sustained as a child. existing in the national economy.” Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). The Abbott case, however, did Plaintiff Her’s sister also testified on her behalf. She not specifically address the issue before this court. Taken in indicated that when the sisters worked in the donut factory, context, the language was meant only to emphasize that the plaintiff Her was unable to independently determine which burden of proof shifts at step five in order to prove the donuts to glaze and which donuts to fill, and required the availability of jobs in the national economy, and should not be regular assistance of her sister in order to complete the job. read to expand that requirement. To require the In addition, Her’s sister testified that although Her was able Commissioner to prove a claimant’s RFC at step five is to care for her own grooming needs, she was unable to do essentially to partially shift the burden of proof required of a housework, cook, or care for her children, and her sister daily claimant at step four to the Commissioner. For these reasons, undertook these tasks on her behalf. we reject the argument that if Residual Functional Capacity is not proven by the claimant before step five, the burden of The ALJ had before her a record replete with medical proving it shifts to the Commissioner. examinations and analyses of Her’s hearing problem. Based on this and on the rest of the evidence, including Her’s For the foregoing reasons, we AFFIRM the opinion of the testimony, she concluded that Her’s hearing impairment was District Court. severe in nature. The ALJ did not find, however, that Her’s alleged mental and emotional impairments were severe. The only medical opinion in the record indicating that Her suffered from disabling mental and emotional impairments was the recommendation of Dr. Bradley that Her receive full disability. There were no other medical opinions in the record dealing with Her’s mental and emotional state, aside from a 4 Her v. Comm’r of Soc. Sec. No. 99-1033 No. 99-1033 Her v. Comm’r of Soc. Sec. 5

note from one physician that “depression” could have been to reasonably conclude that Dr. Bradley’s assessment was not one of a number of possible causes for a sudden weight loss wholly credible, and that plaintiff Yer Her could perform Her experienced. Dr. Bradley was not Her’s treating light, unskilled, repetitive jobs, such as folding clothes in a physician, and so his opinion was not due any special laundry, working as a dishwasher, or working on an assembly deference by the ALJ. Indeed, Dr. Bradley’s assessment was line doing repetitive three- and four-step tasks. We believe made only upon the suggestion of plaintiff’s attorney. In this conclusion to be based upon substantial evidence. addition, Dr. Bradley’s examination was conducted through an interpreter. His assessment indicated that Her suffered Plaintiff Yer Her further argues that the Commissioner did from both auditory and mental hallucinations, that she had not meet his burden of proof once plaintiff proved that she hearing impairments and other physical weaknesses, and that was unable to perform her past relevant work. Specifically, she had a Global Assessment of Functioning of 25-30. He did Her argues that the Commissioner should have had the burden not recommend any further treatment. of proving plaintiff’s Residual Functional Capacity. Disability benefit claims are assessed using an established The ALJ determined that Dr. Bradley’s examination was five-step analysis. As an initial matter, we note that the not wholly credible due to a number of factors. First, Her burden of proof lies with the claimant at steps one through never complained that she suffered from auditory or mental four of the process, culminating with a claimant’s proof that hallucinations in any other context, including her testimony she cannot perform her past relevant work. The burden of before the ALJ. This evidence led the ALJ to believe that proof shifts to the Commissioner only if the fifth step, proving Bradley could have misunderstood some of Her’s responses. that there is work available in the economy that the claimant Second, the ALJ noted the opinion of psychological experts can perform, is reached. See Bowen v. Yuckert, 482 U.S. 137, that psychological testing can never be fully accurate through 146 (1987); Walters v. Comm. of Soc. Sec., 127 F.3d 525 (6th an interpreter, because it involves many cultural and linguistic Cir. 1997). The rationale behind this rule is simple. It is nuances that could easily be distorted through the language thought to be unfair to require a lay claimant to prove that barrier. Third, the ALJ heard the testimony of a vocational there are no jobs available in the economy which he can expert who testified after first listening to both Yer Her’s perform because such a determination requires a level of testimony and her sister’s testimony. Considering all of the expertise in vocational matters. On the other hand, it is not testimony, as well as Her’s language difficulties, her hearing unfair to require a claimant to prove the extent of his problems, and her small stature, the vocational expert still impairments. See Bowen v. Yuckert, 482 U.S. at 146 n.5 (“It concluded that there were a number of light, unskilled, is not unreasonable to require the claimant, who is in a better repetitive jobs which Her could perform and which would be position to provide information about his own medical less taxing on her than her previous job at the donut factory. condition, to do so.”) The vocational expert also called into question Dr. Bradley’s assessment by noting that a Global Assessment of Bearing in mind this rationale behind the shifting of the Functioning score under 40 indicates such severe impairment burden of proof in disability cases, we reject plaintiff’s and lack of functioning that hospitalization, or at the very contention that once the burden of proof shifts to the least further treatment, should have been recommended. In Commissioner at step five, the Commissioner is then required this case, the ALJ was startled by the juxtaposition of such an to prove a claimant’s Residual Functional Capacity. The extremely low GAF score, absolutely no recommendation for determination of a claimant’s Residual Functional Capacity future treatment or assessment, and Dr. Bradley’s prominent is a determination based upon the severity of his medical and request for reimbursement. All of these factors led the ALJ mental impairments. This determination is usually made at