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Zarkowski v. Commissioner of Social Security

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

May 14, 2015



ARTHUR J. TARNOW, Senior District Judge.

On February 13, 2015, Magistrate Judge Binder issued a Report and Recommendation ("R&R") [18] recommending that Defendant's Motion for Summary Judgment [15] be granted and that Plaintiff's Motion for Summary Judgment [13] be denied. Plaintiff filed an Objection [19] on November 25, 2015. Defendant filed a Response [20] to Plaintiff's Objection on February 26, 2015.

For the reasons stated below, the R&R [18] is ADOPTED and entered as the findings and conclusions of the Court. Defendant's Motion for Summary Judgment [15] is GRANTED. Plaintiff's Motion for Summary Judgment or Remand [13] is DENIED. Plaintiff's Objection [19] is OVERRULED.


Plaintiff applied for disability benefits on September 14, 2011, alleging that he became disabled and unable to work on November 26, 2007. The Magistrate Judge summarized the administrative record of Plaintiff's disability application as follows:

1. Disability Reports
In an undated disability report, Zarkowski indicated that he suffers from high blood pressure, depression, herniated discs, and anxiety. (Tr. 172). Zarkowski reported that he stopped working on November 26, 2007, as a result of these conditions. ( Id. ). With respect to his education level, Zarkowski completed the ninth grade but never pursued any further studies. (Tr. 173). Prior to stopping work, Zarkowski was employed as a construction foreman. ( Id. ). Zarkowski stated that Pramod Kerkar, M.D. treated him for the foregoing physical and mental impairments. (Tr. 176). At the time of the report, Zarkowski was taking Alaven, amitriptyline, and Cymbalta to treat his depression along with hydrocodone and oxycodone for pain relief. (Tr. 175).
In an undated function report, Zarkowski stated that he lives in a house with his fiancee. (Tr. 152). When asked to describe his daily activities, Zarkowski indicated that he reads, takes naps, and watches television. (Tr. 153). His pain interferes with his sleep, which leaves him tired during the day. ( Id. ). Zarkowski needs his fiancee to remind him to take care of his personal hygiene and take his medicines. (Tr. 154). She also prepares all of his meals. ( Id. ). Zarkowski reported that he is unable to perform any household chores or outdoor work. ( Id. ). He indicated that he goes shopping with his fiancee once every few weeks and that she often accompanies him while grocery shopping. (Tr. 155). He is able to drive a car or sit in the passenger seat. ( Id. ). Zarkowski is capable of paying bills, counting change, and handling a checking and savings account. ( Id. ). His main hobby is watching sports television programs. (Tr. 156). Zarkowski visits his daughters regularly, but he does not participate in social activities as he was accustomed to doing before being injured in a work-related accident. (Tr. 157). He further noted that he does not have any problems getting along with family, friends, or neighbors. ( Id. ).
When asked to identify functions impacted by his condition, Zarkowski checked lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, seeing, memory, concentration, understanding, and following instructions. ( Id. ). He uses a cane to assist with his mobility and cannot walk without taking 10 to 15 minute breaks. ( Id. ). He must read instructions more than once and verbal instructions often have to be repeated. ( Id. ). Zarkowski also indicated that he does not handle stress or changes in routine well. (Tr. 158). Regarding his medications, Zarkowski reported that he suffers from side effects of nausea after taking his pain relievers. (Tr. 159).
The record also reflects that Zarkowski's fiancee drafted a second function reported dated October 31, 2011. (Tr. 160-167). Her report is largely consistent with the undated one, though Zarkowski's fiancee indicated that the only time he operates a car is when he has to drive to doctors appointments. (Tr. 163). She also reported that Zarkowski is unable to pay bills, count change, or manage a savings or checking account. ( Id. ).
2. Zarkowski's Testimony
At the time of the August 15, 2012 hearing before the ALJ, Zarkowski stated that he was last employed as an iron construction foreman and had not returned to work since he was injured during a work-related accident on November 27, 2007. (Tr. 32). Zarkowski reported that he suffers from back and groin pain as well as psychological issues. (Tr. 33). He described the pain as an eight on a scale from one to ten with "shooting pain in the middle of [his] back" and a "stabbing sensation in [his] groin." ( Id. ). Zarkowski related that the pain sometimes radiates down his right leg, but that he mostly experiences numbness. ( Id. ). His condition is aggravated when he stands for a long period of time, but is relieved when he sits in his recliner with his legs elevated. (Tr. 34). Zarkowski indicated that he sits in his recliner approximately six to seven times a day for 20 to 30 minute intervals. ( Id. ). At most, he is able to stand for approximately 10 to 15 minutes before sitting down and he can sit for 30 minutes before he needs to stand. (Tr.35).
Zarkowski further reported that he can walk one block before he needs to stop. ( Id. ). He uses a walking cane two to three times a week for "walking and balancing to relieve pain in [his] groin." (Tr. 36). He cannot rotate his back, or bend over to pick up objects from the floor, and he has difficulty climbing stairs. ( Id. ). Zarkowski attested that he can only lift the equivalent weight of a telephone book and mostly with his right hand. ( Id. ). He has undergone physical therapy, lumbar spine stimulation and some rhizotomies, none of which are significantly helpful. (Tr. 38). Zarkowski specifically reported that the rhizotomies reduce his pain by 30 percent and normally last approximately two months before the pain recurs. ( Id. ). His medications are also problematic since they cause him to suffer drowsiness, nausea, and lack of concentration. ( Id. ). With respect to everyday chores, Zarkowski stated that he cannot do laundry, wash dishes, perform yard work, cook, or go grocery shopping. (Tr. 39-40). Other than going to local doctors appointments once every month, he keeps driving to a minimum. (Tr. 40). His personal care is limited to bathing, although his fiancee must dry him off from the waist down and assist him with putting on his pants and shoes. ( Id. ).
Regarding his psychological symptoms, Zarkowski testified that he has feelings of isolation, problems focusing and remembering, and he suffers from stress-related panic attacks "a couple of times a week." (Tr. 40-41). He has been hospitalized twice in ...

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