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Ritter v. Commissioner of Social Security

March 22, 2010

DARRIN P. RITTER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Paul D. Borman United States District Judge

R. Steven Whalen United States Magistrate Judge

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO. 15); (2) DENYING DEFENDANT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO. 16); (3) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 10); (4) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 13); AND (5) REMANDING TO THE ADMINISTRATIVE LAW JUDGE FOR FURTHER LIMITED PROCEEDINGS

Before the Court are Defendant's Objections to the Magistrate Judge's Report and Recommendation. (Dkt. No. 16.) Plaintiff did not file Objections to the Magistrate Judge's Report and Recommendation but did file a Response to Defendant's Objections. (Dkt. No. 17.) For the reasons that follow, the Court adopts the Magistrate Judge's Report and Recommendation and remands to the administrative level for further proceedings.

I. BACKGROUND

The parties do not object to the procedural history or background facts as set forth in the Magistrate Judge's Report and Recommendation and the Court adopts them here:

Plaintiff applied for DIB and SSI on November 15, 2005, alleging disability as of July 1, 2004 (Tr. 60-62, 221-223). After the initial denial of benefits, Plaintiff filed a timely request for an administrative hearing, held on July 3, 2008 in Oak Park, Michigan (Tr.224). Administrative Law Judge ("ALJ") Karen Goheen presided (Tr. 224). Plaintiff, represented by attorney Joshua Moore, testified, as did vocational expert ("VE") Raymond Dulecki (Tr. 228-261, 262-269). On November 21, 2008, ALJ Goheen determined that Plaintiff could perform unskilled, exertionally light work (Tr. 22, 27). On January 6, 2009, the Appeals Council denied review (Tr. 4-6). Plaintiff filed for judicial review of the administrative decision on February 23, 2009.

Plaintiff, born March 13, 1965, was 43 when the ALJ issued her decision (Tr. 27, 60). Plaintiff completed 10th grade and worked previously as a restaurant worker, heavy equipment operator, and a laborer (Tr. 77, 79). Plaintiff alleges disability as a result of blindness in the right eye, right ear hearing loss, balance problems, a knee condition, and a learning disability.

A. Plaintiff's Testimony

Plaintiff, 5' 7" and 162 pounds, testified that he was right-handed (Tr. 229). He reported that he currently lived in a duplex with his girlfriend (Tr. 230). He indicated that he had taken special education classes starting in the 3rd grade until he quit school in 10th grade (Tr. 230-231). He denied the ability to read or perform mathematical calculations, but noted that he could sign his name and count change (Tr. 231). Plaintiff admitted that his driver's license had been revoked for "drinking and driving" (Tr. 232).

Plaintiff reported that he worked at a Red Lobster restaurant from 1991 to 1998 as a prep cook and a dish washer, indicating that a right eye injury, his license revocation, and family problems led to his resignation (Tr. 234). He reported that he was later employed by another restaurant as a prep cook, working for three years until the restaurant was sold (Tr. 235-236). Plaintiff then worked as a sorter at a garbage company (Tr. 236). He testified that in the past year, he worked as a dish washer one day each week (Tr. 237).

Plaintiff reported that he currently took extra strength Tylenol for eye and back pain and Lexapro for depression, adding that he did not have medical insurance (Tr. 238). In response to the ALJ's observation that Plaintiff had presented scant evidence of his medical conditions, Plaintiff's attorney, reiterating that his client was uninsured, stated that Plaintiff was "in desperate need of physical [and] dental" care (Tr. 239). The attorney noted that Plaintiff had recently been assigned a case worker (Tr. 239).

In response to questioning by his attorney, Plaintiff alleged that he experienced eye strain in his "good" eye after watching television for extended periods (Tr. 243). He added that his placement in special education classes was attributable to poor vision (Tr. 243). Plaintiff testified that his mother's 1997 death, followed by the loss of his license, an eye injury, and his termination from Red Lobster were responsible for his emotional problems (Tr. 244). He added that since sustaining a head injury as a young adult, he experienced balance and hearing problems (Tr. 245). Plaintiff alleged that although he attended school until 10th grade, he had the approximate intellectual functional of an eight-year-old (Tr. 246).

Plaintiff acknowledged that when he was working, he was generally punctual and got along with his co-workers (Tr. 247-248). He reported that he could tend to his personal need without assistance (Tr. 249-250). He estimated that he could lift up to 25 pounds, but was unable to walk more than two blocks due to knee problems (Tr. 251). He reported that sitting for more than four hours caused lower back cramps (Tr. 252). Plaintiff indicated that he was able to keep up with household chores, but had abandoned his former hobby of drawing due to eye strain (Tr. 253). He testified that he kept up with his friends by telephone and talked to his case manager on a weekly basis (Tr. 255).

Plaintiff admitted that he had undergone anger management therapy after an altercation with his girlfriend, adding that Lexapro "calm[ed]" him (Tr. 257). He denied current alcohol or drug use, noting that transportation problems prevented him from continued participation in AA (Tr. 257). Plaintiff stated that balance problems interfered with his ability to work (Tr. 258). Plaintiff's attorney interjected that his client had been approved for free medical and mental health treatment but was currently on a waiting list (Tr. 259).

B. Medical Evidence

1. Treating Sources

February, 1972 school records indicate that Plaintiff exhibited average intelligence and was not deemed eligible for special education (Tr. 179). June, 1980 middle school records show that Plaintiff received failing grades in several courses (Tr. 186). April, 1982 ...


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