United States District Court, E.D. Michigan, Southern Division
For Jimmy Ray Glass, Plaintiff: David M. Stewart, Neal, Neal, Flint, MI.
For Commissioner of Social Security, Defendant: Derri T. Thomas, U.S. Attorney's Office, Detroit, MI; John C. Benson, Michael L. Henry, Social Security Administration, Assistant Regional Counsel, Boston, MA.
DAVID R. GRAND, United States Magistrate Judge. Honorable Nancy G. Edmunds.
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [10, 11]
DAVID R. GRAND, United
States Magistrate Judge
Plaintiff Jimmy Ray Glass brings this action pursuant to 42 U.S.C. § 405(g), challenging a final decision of Defendant Commissioner of Social Security (" Commissioner") denying his application for Supplemental Security Income (" SSI") under the Social Security Act (the " Act"). Both parties have filed summary judgment motions, which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, the Court finds that the Administrative Law Judge's (" ALJ") conclusion that Glass is not disabled under the Act is not supported by substantial evidence Accordingly, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment  be DENIED, Glass's motion  be GRANTED IN PART to the extent it seeks remand, and DENIED IN PART to the extent that it seeks an award of benefits, and that, pursuant to sentence four of 42 U.S.C. § 405(g), this case be REMANDED to the ALJ for further proceedings consistent with this Recommendation.
A. Procedural History
Glass originally filed an application for SSI, which was denied, on March 17, 2011. [Tr. 59-62]. He filed a new application for SSI on June 15, 2011, alleging disability as of July 15, 2008. [Tr. 129-144]. That application was denied. [Tr. 63-67]. Thereafter, Glass filed a timely request for an administrative hearing, which was held on September 12, 2012 before ALJ Andrew G. Sloss. [Tr. 29]. Glass, who was represented by attorney David M. Stewart, testified at the hearing, as did vocational expert (" VE") Pauline McEachin. [Tr. 29] On November 17, 2012, the ALJ issued a written decision in which he found Glass not disabled. [Tr. 12-27]. On January 16, 2014 the Appeals Council denied review. [Tr. 1-3]. Glass filed for judicial review of the final decision on May 16, 2014. .
1. Disability Reports
In his July 15, 2011 application for SSI, Glass alleged a disability onset date of July 15, 2008. [Tr. 136]. Glass stated that he was prevented from working by learning disabilities, loss of memory, and " bad back neck arms." [Tr. 141]. Prior to stopping work, Glass worked variously as a mechanic, on an assembly line, as a machine painter, and in machine maintenance from 1992-2007. [Tr. 128]. Glass indicated that he treated with Dr. Adelbaset Youssef, the Hamilton Community Health Network, and Hurley Medical Center. [Tr. 144-146]. At the time of his application, Glass reported taking several medications, including Alprazolam (for anxiety), Carisoprodol (for muscle relaxation), Fluoxetine (for depression), and Lortab (for pain). [Tr. 144].
In an August 23, 2011, function report, Glass said that he lives in the basement of a friend's home. [Tr. 148]. He reported that his daily activities consist of preparing food, taking medications, washing and dressing himself, sitting on the couch, and watching television. [Tr. 148, 152]. However, Glass asserted that his ability to dress, bathe, care for his hair, and shave are limited by his injuries. [Tr. 149]. He stated that he does not perform any other indoor or outdoor household chores. [Tr. 150]. Glass said that he is able to count change, but unable to pay bills, handle a savings account, or use a checkbook. [Tr. 151]. He requires reminders to perform activities outside of the home, and requires accompaniment. [Tr. 152].
When asked which activities are limited by his condition, Glass checked lifting; squatting; bending; standing; reaching; walking; sitting; kneeling; stair-climbing; seeing; memory; completing tasks; understanding; following instructions; and using his hands. [Tr. 153]. He can walk for about 20 minutes before needing to rest, pay attention for 10 minutes, and reported having trouble finishing what he starts. [ Id.]. Apparently confused by some of the questions in the function report, Glass replied to the question " how well do you follow written instructions, " with " cannot write anything, " and in response to the question " how well do you follow spoken instructions, " he stated " about 5 min." [ Id.]. He stated that he has no trouble with authority figures, but does not handle stress or changes in routine well. [Tr. 154]. Glass reported the use of a cane, brace or splint, and glasses or contacts every day. [Tr. 154].
In an undated disability appeals report, Glass stated that he suffered additional injuries to his left hand, neck, and knees due to a car accident on August 4, 2011. [Tr. 156]. He reported seeking further care from Dr. Youssef for treatment of his neck, knee, arm and hand pain, and for treatment of anxiety and depression. . Glass also reported visiting the Genesys Regional Medical Center at Health Park hospital for treatment of the injuries he sustained in that car accident. [Tr. 158]. Glass reported that he was still taking Lortab (for pain), Soma (for pain), and Xanax (for anxiety and depression). [Tr. 158].
2. Glass's Testimony
At the September 7, 2012 hearing before the ALJ, Glass testified that he completed the 11th grade, had no job related training or certifications, and last worked in 2008. [Tr. 31]. Glass said that he suffers from a " bad back, " " bad knees, " " bad ankles, " and pain in his hands and shoulders. [Tr. 32]. He stated that his medications, including Prozac (for depression) and Xanax (for anxiety), are helpful in treating his maladies. [ Id.]. Regarding his physical ailments, Glass testified that he suffers from significant pain, has great difficulty lifting objects with his left hand, and loses his balance. [Tr. 33]. He recounted having surgery on his hands, but decided against back surgery because it was not covered by his insurance and because it was only somewhat likely to improve his condition. [ Id.].
Glass said that he lives with his girlfriend, and that he performs no household chores. [Tr. 34-35]. He stated that he attempted to use a riding mower, but that the vibration of the machine created severe pain in his hands, and that he passed that duty to his grandson. [Tr. 35]. Glass attested that he participates in few social outings due to his depression, and that he spends most of his time sitting distractedly in front of the television. [Tr. 35].
Glass testified that he cannot lift a gallon of milk with his left hand, which he considers so functionally limited that it is " dead to [him]." [Tr. 36]. He stated that he can stand for approximately 15 minutes comfortably. [ Id.]. He asserted that he can walk about half of one city block before he is forced to sit down by tingling in his legs and shortness of breath. [ Id.]. He also described breathing problems that resulted from his time working as a painter. [ Id.]. Glass said that he cannot sit for more than 25 or 30 minutes, and struggles to find a comfortable sitting position. [Tr. 37].
Glass stated that he had difficulty passing his driving test, and is unable to fill out forms on his own. [Tr. 38]. He feels dizzy when looking down, and experiences migraines approximately three or more times per week. [Tr. 39]. He recounted falling over if he attempts to bend down, cannot crawl, and is unable to climb steps unless a handrail is present. [Tr. 39-40].
Glass stated that he has used a back brace " for a long time, " and began using a cane about five months before the hearing. [Tr. 40].
3. Medical Evidence
On July 18, 2001, Dr. Eugene Brown of The MRI Diagnostic Centers of Michigan examined an MRI of Glass's spine, which he characterized as a " normal lumbar spine study." [Tr. 199]. On May 2, 2007, Dr. Madhusudana Tummala reviewed a new MRI of Glass's spine, finding " minimal circumferential bulging of the intervertebral disc at L4-L5 and to a lesser degree at L3-L4." [Tr. 198].
On July 18, 2008, Glass was examined at the Hurley Medical Center after suffering trauma to his left arm, where it was determined that he was unable to completely flex or extend his left elbow. [Tr. 178-179]. It was also noted that Glass was unable to grasp a piece of paper between his thumb and index finger. [Tr. 179]. He was prescribed Vicodin ES, Flexeril, and Prednisone. [Tr. 180]. A July 19, 2008, x-ray of Glass's left elbow revealed no abnormalities in the bone or soft tissues. [Tr. 181].
On March 10, 2009, Dr. Ed Atty performed an independent medical examination of Glass's left elbow following a workplace injury involving a heavy gate. [Tr. 261-264]. Glass complained of shooting, stabbing pain in that extremity, with radiating pain in the shoulder and hands, including numbness in his fingers. [Tr. 261]. During the examination, Glass also made note of a May 2008 injury to his left elbow involving a 40 to 50 pound piece of luggage. [ Id.]. Glass reported some neck pain, and rated his overall amount of pain between six and eight out of ten. [ Id.]. Glass stated that the pain " interfere[d] significantly with his general activity, mood, work and sleep, and somewhat with his concentration." [ Id.]. He also stated that he took Vicodin two to three times daily, and used an ...