United States District Court, E.D. Michigan, Southern Division
For Darin Carl Martin, Plaintiff: Steven V. Harthorn, Mt. Clemens, MI.
For Commissioner of Social Security, Defendant: Lisa G. Smoller, Social Security Administration, Assistant Regional Counsel, Boston, MA; Susan K. DeClercq, U.S. Attorney's Office, Detroit, MI.
HON. R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE. HON. GERALD E. ROSEN, United States District Judge.
REPORT AND RECOMMENDATION
R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Darin Carl Martin (" Plaintiff") brings this action under 42 U.S.C. § 405(g), challenging a final decision of Defendant Commissioner denying his application for Disability Insurance Benefits (" DIB") and Supplemental Security Income (" SSI") under the Social Security Act. Both parties have filed summary judgment motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below I recommend that Defendant's motion be DENIED and that Plaintiff's motion for summary judgment be GRANTED to the extent that the case be remanded to for further administrative proceedings.
On December 3, 2010, Plaintiff filed applications for DIB and SSI, alleging disability as of November 28, 2009 (Tr. 197-198, 204-209). After the initial denial of the claim, he requested an administrative hearing, held on May 24, 2012 in Detroit, Michigan before Administrative Law Judge (" ALJ") Gregory Holiday (Tr. 28). Plaintiff, represented by attorney Steven Harthorn, testified (Tr. 32-64), as did Vocational Expert (" VE") Diane Regan (Tr. 64-70). On August 27, 2012, ALJ Holiday found Plaintiff not disabled (Tr. 12-23). On November 27, 2013, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the Commissioner's decision on January 20, 2014.
Plaintiff, born March 12, 1970, was 42 when the ALJ issued his decision (Tr. 23, 197). He completed high school and received vocational training in mechanical drafting (Tr. 232). He worked previously as a graphic designer and mechanical designer/fixture checker (Tr. 232). His application for benefits alleges disability as a result of cervical and lumbar spine injuries creating pain and numbness, depression, and sleeping problems (Tr. 231).
A. Plaintiff's Testimony
Plaintiff offered the following testimony:
In the year before the hearing, he lost 13 pounds due to appetite loss (Tr. 32). Since the alleged onset of disability date, he had attempted to coach little league football but was unable to meet the standing and walking requirements of the position (Tr. 33). His body pain, tremors, and concentrational problems had become progressively worse since November 27, 2009 (Tr. 34). He experienced modest improvement while engaged in physical therapy, but noted that his " leg dragging" had increased (Tr. 34). His condition had deteriorated since he was forced to stop therapy due to the loss of insurance (Tr. 35). He continued to perform exercises at home (Tr. 35).
Plaintiff was able to make simple meals on an occasional basis (Tr. 36). He required his wife's help to bathe due to his inability to bend (Tr. 37). His ability to perform gross and fine manipulations was impaired by shoulder and neck pain (Tr. 37-38). He smoked approximately 12 cigarettes each day (Tr. 38). He no longer drank alcohol, but noted that he had previously used alcohol to control his pain (Tr. 38-39). Because he was uninsured, he had decided to forego aggressive medical care for the time being (Tr. 39). He was currently taking Percocet, Zoloft, Neurontin, and Mirtazapine, all of which had been prescribed by a family physician (Tr. 40). He declined to use a walking aid due to the added pressure on his neck (Tr. 42).
Plaintiff lived in a two-story bungalow with his wife and two children (Tr. 43). He generally stayed on the main floor of the house (Tr. 44). He did not use a computer at home but accessed his email from his cell phone (Tr. 45). He had a Facebook account and uploaded photographs to Facebook from his cell phone (Tr. 45). He used his cell phone for texting (Tr. 46). He had used marijuana in an unsuccessful attempt to increase his appetite but had not used it in the last two months (Tr. 47). His vision was " okay" (Tr. 48). Turning his neck created back pain (Tr. 48). He was unable to turn his neck more than 10 degrees in either direction (Tr. 49). He relieved back pain by reclining with his legs raised (Tr. 49). He did not experience problems interacting with neighbors or other acquaintances (Tr. 50-51). He watched television for less than an hour each day (Tr. 51). Plaintiff, right handed, experienced worse shoulder pain, tremors, and foot drag on the right (Tr. 52). He was unable to lift his right arm above shoulder level or reach forward (Tr. 52). He was able to lift and carry a gallon of milk (Tr. 53).
Plaintiff's back condition was hereditary (Tr. 54). He had been told that the condition would continue to deteriorate (Tr. 55). He had undergone two cervical fusions and a lumbar fusion (Tr. 55). Additional surgery had been recommended by multiple sources (Tr. 55). A recent MRI showed nerve root impingement of the cervical spine (Tr. 55). Steroid injections to the shoulder did not relieve his pain for more than four days (Tr. 56). Since undergoing cervical spine surgery, he experienced right forearm and hand numbness (Tr. 56). He was unable to sit for more than 40 minutes or stand for more than 15 (Tr. 57, 59). He was unable to walk for more than two blocks (Tr. 59). The right foot drop had been getting progressively worse since his last surgery (Tr. 58). Medication side effects included loss of appetite, confusion, and depression (Tr. 59). He experienced reading comprehension problems and was easily distracted (Tr. 61).
On a typical day, Plaintiff would arise at 9:00 a.m., feed his dogs, then lie down intermittently for the rest of the day (Tr. 60). He had not received mental health treatment but was prescribed antidepressants by a family doctor (Tr. 60). He recently contemplated suicide due to his inability to provide for his family (Tr. 62). As of May 24, 2012, he had not had a blood " work up" for rheumatoid arthritis (Tr. 62).
B. Medical Evidence
1. Treating Records