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Sivec v. Commissioner of Social Security

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

January 23, 2015


For Carl Richard Sivec, Plaintiff: Diane M. Kwitoski, Kwitoski & Plagens PLLC, Ferndale, MI.

For Commissioner of Social Security, Defendant: Elizabeth J. Larin, U.S. Attorney's Office, Detroit, MI; Jessie Wang-Grimm, Niranjan Emani, Social Security Administration, Chicago, IL.




Plaintiff Carl Richard Sivec seeks judicial review of Defendant Commissioner of Social Security's determination that he is not entitled to social security benefits for his physical and mental impairments under 42 U.S.C. § § 405(g) and 1383(c)(3). (Docket no. 1.) Before the Court are Plaintiff's Motion for Summary Judgment (docket no. 13) and Defendant's Motion for Summary Judgment (docket no. 18). The motions have been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 4.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation.


For the reasons stated herein, Plaintiff's Motion for Summary Judgment (docket no. 13) should be DENIED, and Defendant's Motion for Summary Judgment (docket no. 18) should be GRANTED.


Plaintiff filed an application for supplemental security income with a protective filing date of January 30, 2009, alleging disability beginning December 25, 2008, due to seizure disorder and depression. ( See TR 29, 268.) The Social Security Administration denied Plaintiff's claims on July 15, 2009, and Plaintiff requested a de novo hearing. (TR 29.) The ALJ adjourned Plaintiff's first hearing, scheduled for October 24, 2011, for the claimant to attend a psychological consultative examination. (TR 29.) A second hearing was scheduled for March 28, 2012, at which Plaintiff appeared with counsel and testified before Administrative Law Judge (ALJ) Michael R. Dunn. (TR 29, 90.) This hearing was suspended because Plaintiff had a medical emergency; the hearing was continued on June 15, 2012. (TR 29.) In a July 23, 2012 decision, the ALJ found that Plaintiff was not entitled to benefits because he was capable of performing a significant number of jobs in the national economy. (TR 29-41.) The Appeals Council declined to review the ALJ's decision (TR 1-6), and Plaintiff commenced this action for judicial review. The parties then filed cross motions for summary judgment, which are currently before the Court.


A. Plaintiff's Testimony

Plaintiff was 53 years old at the time of the administrative hearings and 50 years old on the date the application was filed. (TR 39, 105.) Plaintiff testified that he was currently living with his significant other, Isabel Jordan, in her house. (TR 104-05.) Plaintiff stated that his marital status was single, he had three estranged adult children, and he did not have a current source of income. (TR 105-06.) Plaintiff advised that he was about six feet tall and usually weighed about 200 pounds, but that he currently weighed approximately 220 pounds; Plaintiff attributed his weight gain to medication side effects. (TR 105.) Plaintiff told the ALJ that he had a driver's license, but he didn't drive because his doctor advised that it would be dangerous. (TR 106.) Plaintiff elaborated that he stopped driving about two and a half years prior to the hearing. (TR 106.) Plaintiff testified that he had a high school education, was able to read and write, and had specialized training as a carpenter. (TR 107.) Plaintiff said that he didn't serve in the Armed Forces because of his flat feet and epilepsy. (TR 107.)

Plaintiff testified that he had not worked since the alleged onset of disability in December 2008. (TR 107.) Plaintiff stated that he wasn't exactly sure when he last worked, but believed that it was right before his disability started, possibly in October of 2008. (TR 107-08.) Plaintiff explained that he had done a lot of different subcontract work as a carpenter, which included installing drywall. (TR 108.) Plaintiff admitted that his past work involved some pretty heavy lifting, sometimes over 50 pounds. (TR 108.) Plaintiff testified that he stopped doing that work because of the seizures. (TR 108.) Plaintiff explained that he never knew when the seizures were going to happen and admitted to being afraid to have a seizure on the job site. (TR 109.)

Plaintiff then confirmed that, in terms of physical limitations, the primary reason why he could not work was the seizures. (TR 110.) Plaintiff explained that the seizures cause confusion and shakiness in his arms and legs and that the petite mal seizures cause him to space out and limit his concentration. (TR 110.) Plaintiff added that his medication makes him very tired. (TR 110.) Plaintiff then told the ALJ that his depression was still a problem. (TR 111.) Plaintiff testified that he saw a psychiatrist regarding his depression on a regular basis three or four times per year, who would prescribe medications for Plaintiff. (TR 111-12.) Plaintiff admitted that other than the medications or therapy that took place when he saw the psychiatrist, the psychiatrist was not doing anything else for Plaintiff in terms of treating his depression due to finances. (TR 112.) Plaintiff also testified to seeing another doctor on a regular basis every couple of months who would monitor Plaintiff's blood levels and prescribe his seizure medication. (TR 112-13.) Plaintiff stated that he was taking Depakote at 1875 milligrams for his seizures and Zoloft at 100 milligrams for his depression. (TR 114.) Plaintiff said that the dosage of the Depakote was increased a couple of months prior to the hearing. (TR 114.) He said that after the increase in dosage, he was a little more confused, the seizures were a bit less severe, but he hadn't noticed a change in their frequency. (TR 115.)

Plaintiff testified that the Zoloft has reduced the extreme crashing and extreme suicidal thoughts related to his depression, but averred that he was still having problems with depression. (TR 115-16.) He said that the depression affected the way he felt about life in general; he said that there were days where he felt like " everything suck[ed], " and he'd rather " just check out." (TR 116.) Plaintiff further described his depression as " no joy, " " worse on cloudy days, " and a little better on sunny days. (TR 117.) Plaintiff said that as far as interest in life, " you do what you can or try to find something you can get interested in so you don't decide to go over." (TR 117.) Plaintiff testified that he always made an attempt to get out of bed and to function in some way so that he wasn't always spiraling downhill. (TR 118.)

Plaintiff told the ALJ that he generally had difficulty getting along with people and that he'd rather be alone than be around people. (TR 118.) He elaborated that he wouldn't be able to ride the bus because it's too close quartered. (TR 118.) Plaintiff added that he would get " a large anxiety" around people he didn't know. (TR 119.) Plaintiff testified that he did not have any sleep problems and that he was able to bathe, dress, and feed himself. (TR 119.) Plaintiff stated that he did not go grocery shopping. (TR 119.) He further stated that he did not have any hobbies or attend church or any social organizations. (TR 119.)

Plaintiff testified that he had two different kinds of seizures; for purposes of the hearing Plaintiff and the ALJ categorized them as big seizures and little seizures. (TR 120.) Plaintiff described the big seizures as the kind that shook his entire body and would cause him to almost lose consciousness. (TR 120-21.) He said that he had lost consciousness once or twice when the seizures were particularly severe. (TR 121.) Plaintiff testified that the big seizures happened at least once per month and that he would typically bite his mouth, tongue, or lips when they occurred. (TR 121.) Plaintiff admitted that he did not always go to the hospital when he had a big seizure because he didn't have the money. (TR 121.) He added that a lot of times he would go lay down and sleep for one and a half to two hours after a seizure. (TR 122.) When asked to describe his little seizures, Plaintiff explained that there were ones where he would black out for 30 seconds at a time without knowing that he did so and others where his limbs would shake. (TR 122.) He added that sometimes it was just the arms and sometimes it was just the legs. (TR 122.) Plaintiff then said that he thought his arm was starting to shake. (TR 122.) Plaintiff told the ALJ that the little seizures that involved shaking of the limbs happened once or twice a week and the ones in which he blacked out could happen two or three times per day. (TR 123, 124.) Plaintiff admitted that the last time he went to the hospital was in 2008. (TR 123.) The ALJ then adjourned the hearing, as Plaintiff was having a medical emergency. (TR 129.)

At the continuation of the hearing, Plaintiff testified that he was going to have an EEG and an MRI performed after the hearing as recommended by one of his doctors. (TR 55.) Plaintiff also stated that he had last seen his psychiatrist three or four months prior and that it was probably time for him to go see him again. (TR 58.) Plaintiff told the ALJ that he did not consume alcohol or use illegal drugs. (TR 59-60.) Plaintiff also confirmed that he has no income and no insurance, that even if his significant other had insurance, it wouldn't cover him, and that his significant other had no legal responsibility to pay for Plaintiff's medical care. (TR 63.)

Plaintiff testified that after the previous hearing, he went to the car and laid down. (TR 6465.) He said that he then went to the doctor's office and told them that he had a seizure in court, but the doctor was unavailable, so he went home and slept for a couple of hours. (TR 65.) Plaintiff explained that the small seizures affect his ability to function in that he is foggy, cloudy, sleepy, his arms and legs get extremely weak, and his whole body gets fatigued. (TR 66.) Plaintiff elaborated that it could take him anywhere from four minutes to five hours to recover from such a seizure, which usually occurred twice a week at various times of the day. (TR 66-67.) Plaintiff also stated that his seizure medication made him tired, sleepy, and really scattered. (TR 70.) He added that the seizures had been less frequent as a result of the medication, but his doctor wanted to prescribe additional medication. (TR 71.)

B. Witness Testimony

Isabel Jordan, Plaintiff's significant other of 25 years, also testified at the hearing. Ms. Jordan testified that when she was at work, she would call Plaintiff every two hours to make sure that he was taking his medicine. (TR 74.) She added that she would cook him dinner, which he would reheat in the microwave. (TR 74.) Ms. Jordan further added that there have been a couple times that she has asked a friend to check in on Plaintiff while she was at work because Plaintiff was having problems. (TR 74-75.) Ms. Jordan stated that Plaintiff's doctor has prohibited him from driving because his partial seizures may turn into a grand mal seizure. (TR 75.)

Ms. Jordan testified that she witnesses Plaintiff's seizures most of the time, which occur at least three to four times per week. (TR 75.) Ms. Jordan explained that she didn't know that much about the petite mal seizure previously, but since her and Plaintiff have had to " go through this because [her] income significantly dropped, " they've been trying to document the seizures more as advised by Plaintiff's counsel. (TR 75.) Ms. Jordan elaborated that she and Plaintiff had been reading more about the signs of a seizure and that Plaintiff has been having at least one to two petite mal seizures per day and partial seizures with shaking at least three to four times per week. (TR 7576.) Ms. Jordan told the ALJ that the frequency of Plaintiff's seizures has changed over the last couple of years and that it is not improving with medication. (TR ...

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