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Cathey v. Commissioner of Social Security

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

February 20, 2015

JAMES CLARK CATHEY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

R. STEVEN WHALEN, Magistrate Judge.

Plaintiff James Clark Cathey ("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") under Title II of the Social Security Act and the partial denial of his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. 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 be GRANTED, and that Plaintiff's Motion for Summary Judgment be DENIED.

PROCEDURAL HISTORY

On April 25, 2012, Plaintiff applied for DIB (Tr. 166-167) and SSI (160-165), alleging disability as of December 30, 2009. After the initial denial of the claim, Plaintiff requested an administrative hearing, held on July 17, 2013 in Livonia, Michigan (Tr. 34). Administrative Law Judge ("ALJ") Anthony R. Smereka presided. Plaintiff, represented by attorney Bethany Versical, testified (Tr. 39-60), as did Vocational Expert ("VE") Annette Holder (Tr. 60-67). On September 5, 2013, ALJ Smereka issued a partially favorable decision, finding that while Plaintiff was not disabled on or prior to his last date insured for DIB of December 31, 2011, he was entitled to SSI as a result of a disability beginning on April 5, 2012[1] (Tr. 20-29). On Feburary 7, 2014, the Appeals Council denied review (Tr. 1-6). Plaintiff filed the present action on March 6, 2014.

BACKGROUND FACTS

Plaintiff, born April 9, 1954, was 59 at the time of the administrative decision (Tr. 29, 160). He completed 12th grade and worked previously as a security officer and security guard (Tr. 187). He stopped working on March 29, 2006 after losing his driver's license (Tr. 186). He alleges disability as a result of knee injuries, hypertension, diabetes, fatigue, chronic pain, and glaucoma (Tr. 185).

A. Plaintiff's Testimony

Plaintiff's attorney prefaced her client's testimony by amending the alleged onset of disability date to April 25, 2010 (Tr. 37).

Plaintiff offered the following testimony:

He worked as a security officer for a bank between 1979 and 1994 and as a security service guard from 1997 to 2006 (Tr. 39). In the security service guard position, he supervised 25 individuals (Tr. 40). He spent six to seven hours each day "on his feet" (Tr. 41). He stopped working in 2006 when his driver's license was revoked after a DUI conviction (Tr. 42).

Plaintiff currently weighed 350 pounds, having gained 50 pounds due to inactivity since he stopped working (Tr. 44). In December, 2009, he went to the doctor after his knee spontaneously buckled in a grocery store parking lot, but did not seek hospital treatment until April, 2010 (Tr. 45). In December, 2009, Plaintiff was prescribed pain medication for a pulled or torn ligament but did not undergo further diagnostic testing due to his lack of health insurance (Tr. 46). He sought hospitable treatment in April, 2010 after his knee condition became worse (Tr. 46). He was again given pain medication but was told that he required an MRI (Tr. 46). He was unable to put any weight on his left knee (Tr. 47). He further injured the knee in April, 2012 while jumping out of a burning car, noting that he "went one way, " and his knee "went the other..." (Tr. 47). After the April, 2012 injury, Plaintiff was diagnosed with torn cartilage and arthritis and advised to undergo knee surgery (Tr. 47).

Plaintiff filed for food stamps in 2008 and had been approved for state sponsored medical insurance the week before the hearing (Tr. 47). Since beginning medication for diabetes in 2011, his blood sugar levels had stabilized (Tr. 48). Before being approved for subsidized insurance, he had seen a physician once every three months for blood pressure and pain medication (Tr. 49). He had elevated his leg to waist level for around two hours each day since 2010 (Tr. 49). He received a brace for the leg at the April, 2010 hospital visit (Tr. 50).

In response to questioning by his attorney, Plaintiff reported that he experienced fatigue due to diabetes as far back as 2010 (Tr. 51). The fatigue had not improved since beginning the use of insulin in 2011 (Tr. 52). He was required to elevate his legs due to swelling (Tr. 54). Walking for extended periods also caused leg swelling (Tr. 54). On a scale of 1 to 10, he experienced level "6" pain (Tr. 55). He had significant concentrational problems (Tr. 55). He slept restlessly due to knee problems since April, 2010 (Tr. 56). He experienced daytime sleepiness (Tr. 57). He was able to drive short distances, noting that he experienced intermittent "popping" of one knee or the other (Tr. 57). He was currently taking Tramadol, noting that the medication did not prevent him from driving (Tr. 58-59). He occasionally experienced light-headedness from blood pressure medication (Tr. 59). He reported difficulty climbing and descending stairs and the inability to stand for long periods (Tr. 60).

B. Medical Evidence

1. Records Created Before ...


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