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Kerspilo v. Commissioner of Social Security

United States District Court, Eastern District of Michigan, Southern Division

March 19, 2015

Anthony kerspilo, Plaintiff,
Commissioner of Social Security, Defendant.

Magistrate Judge, Charles E. Binder.



On November 6, 2014, Magistrate Judge Binder issued a Report and Recommendation (“R&R”) [24] recommending that Defendant’s Motion for Summary Judgment [21] be granted and that Plaintiff’s Motion for Summary Judgment [17] be denied. Plaintiff filed an Objection [25] on November 20, 2014.

For the reasons stated below, the R&R [24] is ADOPTED and is entered as the findings and conclusions of the Court. Defendant’s Motion for Summary Judgment [21] is GRANTED. Plaintiff’s Motion for Summary Judgment or remand[17] is DENIED. Plaintiff’s Objection [25] is OVERRULED.


Plaintiff applied for disability benefits on March 23, 2011, alleging that he became disabled and unable to work on November 19, 2009. The Magistrate Judge summarized the administrative record of Plaintiff’s disability application as follows:

Plaintiff was 46 years old at the time of the hearing. (Tr. 38.) Plaintiff has a high school education. (Id.) Plaintiff last worked in November 2009 as a forklift driver. He testified that he and others were permanently laid off, he had worked approximately eight months of that year and missed about 14 to 15 days of work due to his back and knee conditions. In the last few months of that job his position was to sequence radiators. (Tr. 39.) Prior to that, he worked at a solar panel company where the heaviest thing he lifted were solar panels, which he estimated to be more than 10 pounds but not more than 20 pounds in weight. (Tr. 40.) Plaintiff testified that his current income was from a Veterans Affairs (VA) Disability of 30 percent. (Tr. 41.)
Plaintiff testified that he is unable to work due to back pain. (Id.) He described back pain that travels down the left leg and causes his left foot to go numb. (Tr. 45-46.) He testified that he can sometimes only sit for 15 to 20 minutes at a time before needing to lie down, he cannot use stairs or walk long distances due to his knee impairments, and he has abdominal pain. (Tr. 41.) He stated that these problems started after a snowmobile accident in 1992. (Id.) He testified that the conditions progressively worsened over the years and “went right downhill” in 2009. (Id.) He testified that the VA had also started treating him with medication for depression and his first treatment took place in the week prior to his hearing. (Tr. 42.) At the hearing it was noted that he was wearing knee braces and Plaintiff testified that he wears them “[w]henever I go anywhere. . . Some days it depends on the weather . . . and if it’s wet and cold out, I’ll put them on. . . . [I]f it’s like real warm, then I won’t put them on.” (Tr. 46.) Plaintiff was also using a cane at the hearing and testified that he uses it everyday, all day, for walking, stability and getting up. (Tr. 46-47.) He testified that he can stand for about 20 minutes, walking varies from day to day, he can lift less than 10 pounds due to his back and he has problems bending over. (Tr. 47-48.)
Plaintiff testified that he does no cooking, but can make a sandwich, soup or cereal, and he does some vacuuming but takes a break and lies down after doing a room. (Tr. 43.) He described being able to go shopping with his mother but after 10 to 15 minutes he returned to the car and lay down due to back and knee pain. (Id.) He testified that he naps about twice a day for an hour to two hours after he takes his pain medication, which makes him “tired” and “fuzzy-headed.” (Tr. 45.) Plaintiff has a driver’s license and is able to drive. (Tr. 39.) He testified that he tried going to school and he cannot focus because of the pain. (Tr. 49.) He has “bad days” anywhere from two to four days per month. (Tr. 50.)
The ALJ asked the vocational expert (“VE”) to consider an individual of Plaintiff’s age, education and work experience who is able to perform light work as defined by the Regulations and further limited as follows:
He can only occasionally climb, balance, stoop, crouch, kneel, or crawl. He must avoid concentrated exposure to extreme heat, cold and humidity. He must avoid exposure to vibration, concentrated exposure to vibration (sic) and also concentrated exposure to hazards. (Tr. 52.)
The VE testified that such an individual could not perform Plaintiff’s past work, but that there are other unskilled, light exertion jobs that such an individual could perform, including the following within the region defined as the lower peninsula of the state of Michigan: Hand packer with 6, 000 jobs, production inspector with 2, 800 jobs, and office machine operator with 1, 450 jobs. (Tr. 51-53.) The ALJ then asked the VE to consider the same individual, but with a limitation to sedentary exertion work. (Tr. 53.) The VE testified that the following jobs would be available: sorter packer with 1, 250 jobs, visual inspector with 2, 175 jobs, and visual surveillance monitor with 1, 200 jobs. (Id.)
Finally, the ALJ asked the VE to consider an individual “unable to engage in sustained work activity on a regular and continuing basis for eight hours a day, five days a week for a 40- hour workweek or an equivalent work schedule, . . . .” (Id.) The VE testified that there would be no work available for such an individual. (Id.) The VE confirmed that her testimony had been consistent with the DOT. (Tr. 53-54.) Plaintiff’s attorney also questioned the VE. (Tr. 54- 55.)

On July 16, 2012, the ALJ denied Plaintiff’s application for disability benefits, finding him not disabled within the meaning of the Social Security Act at any time from November 19, 2009, through the date of the ALJ decision. The Appeals Council denied Plaintiff’s request for review on August 21, 2013. On October 24, ...

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