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Morgan v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

January 21, 2015

JOHN P. MORGAN, III, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant

For John P. Morgan, III, Plaintiff: Thomas J. Bertino, Wyandotte, MI; Meredith E. Marcus, Daley Disability Law, P.C., Chicago, IL.

For Commissioner of Social Security, Defendant: Karla J. Gwinn, Social Security Administration, Assistant Regional Counsel, Boston, MA; Laura A. Sagolla, U.S. Attorney's Office, Detroit, MI.

R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE. District Judge JOHN CORBETT O'MEARA.

REPORT AND RECOMMENDATION

R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE

Plaintiff John P. Morgan, III (" Plaintiff") brings this action under 42 U.S.C. § 405(g) challenging a final decision of Defendant Commissioner (" Defendant"). Plaintiff, previously found disabled as of May 1, 2003, disputes Defendant's decision that he was " no longer disabled as of May 1, 2011" (Tr. 23). The parties have filed cross-motions for summary judgment which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that Defendant's Motion for Summary Judgment [Docket #23] be GRANTED and that Plaintiff's Motion for Summary Judgment [Docket #19] be DENIED.

PROCEDURAL HISTORY

In October, 2003, Plaintiff was found disabled as of May 1, 2003 (Tr. 23). On May 9, 2011, Defendant determined that Plaintiff was no longer disabled as of May 1, 2011 (Tr. 69-74). Plaintiff then requested an administrative hearing, held August 14, 2012 in Oak Park, Michigan before Administrative Law Judge (" ALJ") Melvyn B. Kalt (Tr. 34). Plaintiff, represented by Frank Cusmano, testified (Tr. 37-57), as did Vocational Expert (" VE") Kimberly Warner (Tr. 57-60). On October 3, 2012, ALJ Kalt found that Plaintiff's disability ended on May 1, 2011 (Tr. 30). On October 28, 2013, the Appeals Council denied review (Tr. 6-8). Plaintiff filed suit in this Court on January 31, 2012.

BACKGROUND FACTS

Plaintiff, born October 11, 1980, was just short of his 32nd birthday when ALJ Kalt issued his decision (Tr. 30, 142). He completed 12th grade (Tr. 37-38). He worked previously as a newspaper deliverer, photographer, and web designer (Tr. 152). He alleges continuing disability due to bipolar disorder (Tr. 131).

A. Plaintiff's Testimony

Plaintiff offered the following testimony:

He attended school through 11th grade but received home school instruction in what would have been his senior year (Tr. 37). He consented to home schooling because he wanted to spend more time " door-to-door witnessing" (Tr. 38). Between 1999 and 2002, he worked in computer graphics at a small computer service company (Tr. 38). He became the " fall guy" for the company's problems, after which he was terminated (Tr. 39). Around the same time he broke up with his girlfriend (Tr. 39). The combination of career and personal problems resulted in overspending and erratic sleeping patterns after which he was admitted for a six-day psychiatric in-patient stint (Tr. 39). On another occasion, he spent 24 days at an inpatient facility (Tr. 40). He was hospitalized several times due to his failure to take his psychotropic medication (Tr. 40). His former boss had asked him to return to work on the condition that he would continue to take his medication, but Plaintiff lost the job a second time after declining to take his medication (Tr. 40). Following the computer job, he was employed part-time for about 18 months with a marketing research company as a telemarketer (Tr. 41). Although the job was part-time, he sometimes required a break " from the customers" (Tr. 42). In 2008 and 2009, he worked 16 hours a week as a patient transporter at a hospital (Tr. 42). He quit in part because his productivity rate was deemed low, combined with his fear that he would lose his temper with the patients (Tr. 43).

Plaintiff experienced the medication side effects of dry mouth and diarrhea (Tr. 45). The medication, prescribed so he would not " do anything outrageous" slowed down his thought processes (Tr. 45). He attended Kingdom Hall meetings twice a week lasting approximately one hour and 45 minutes (Tr. 45-46). In addition, he was involved in a " door-to-door" ministry two days a week between 9:00 a.m. and 3:00 p.m. (Tr. 46-47).

He experienced two to three good days a week and four bad ones (Tr. 48). " Bad" days included interrupted sleep, dry mouth, diarrhea, and a general disinclination to change out of his pajamas (Tr. 49). He spent most of such days watching television (Tr. 49). Based on his mixed experience with part-time work, he would be unable to perform full time work (Tr. 50). He lived with his parents and two sisters (Tr. 51). He and his sisters were responsible for a portion of the household chores (Tr. 51). On occasion, he had to be reminded to complete his share of the chores (Tr. 51-52). He avoided shopping trips due to his fear of placing himself in situations where he would be re-admitted to a mental hospital (Tr. 52). He was currently under the care of a psychiatrist and was also receiving counseling (Tr. 53).

In response to questioning by his attorney, Plaintiff testified that he would be unable to return to his work with computer graphics because he had not " kept up" with ...


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