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Foster v. Commissioner of Social Security

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

June 23, 2015

ARZEL LEE FOSTER, III, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DE 15), DEEM MOOT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 22) and GRANT DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT (DE 23)

ANTHONY P. PATTI, Magistrate Judge.

I. RECOMMENDATION: For the reasons that follow, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment, DEEM MOOT Defendant's motion for summary judgment, GRANT Defendant's amended motion for summary judgment, and AFFIRM the Commissioner's decision.

II. REPORT

Plaintiff, Arzel Lee Foster, III, brings this action under 42 U.S.C. §§ 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 15), the Commissioner's cross motion for summary judgment (DE 22), the Commissioner's amended cross motion for summary judgment (DE 23), Plaintiff's reply (DE 24) and the administrative record (DE 11).

A. Background

Plaintiff filed his application for Supplemental Security Income (SSI) on October 25, 2011, alleging that he has been disabled since March 1, 2008, at age 56. R 157-162, 170-172. Plaintiff alleges disability as a result of: a brain tumor, blurred vision, a mild stroke, a mild heart attack, optic nerve damage, limited use of his left side, high blood pressure, bronchitis, breathing problems, prostrate problems, severe arthritis, and severe gout. R at 173-185. Plaintiff's application was denied initially on January 25, 2012. R at 75-78, 79, 80-83.

On March 30, 2012, Plaintiff sought a de novo hearing before an Administrative Law Judge ("ALJ"). R at 84, 85-87, 186-187, 188-193. ALJ Michael Wilenkin held hearings on May 7, 2013 and July 18, 2013, at which Plaintiff appeared without counsel (R at 56-64, 65-74, 101), and on October 17, 2013, at which Plaintiff appeared with counsel, along with vocational expert ("VE") Elizabeth Pasikowski (R at 21-55, 99, 132). On November 12, 2013, ALJ Wilenkin issued a recommended decision, concluding that Plaintiff had not been under a disability within the meaning of the Social Security Act since October 25, 2011, the date his application was filed. R at 9-20.

On December 16, 2013, Plaintiff requested review of the recommended decision. R at 7-8. On February 12, 2014, the Appeals Council denied Plaintiff's request for review. R at 1-6. Thus, ALJ Wilenkin's decision became the Commissioner's final decision.[1]

Plaintiff then timely commenced the instant action on April 8, 2014. DE 1.

B. Plaintiff's Medical History

Plaintiff alleges that he has been disabled since March 1, 2008. R at 157. Plaintiff's medical records span the period from November 13, 1995 to October 10, 2013. R at 201-383 (Exhibits 1F-15F). Among those the ALJ reviewed and cited are:

• November 29, 2010 records of Cardiovascular Associates, P.C. (R at 209)
• September 26, 2011 records of Cardiovascular Associates, P.C. (R at 205)
• November 4, 2011 records of Sinai Grace Hospital (R at 215-216, 219)
• November 15, 2011 records of Hicham Krayem, M.D. (R at 344-345)
• November 2, 2012 records from St. John Providence Hospital (R at 239-261)
• February 17, 2013 records from Sinai-Grace Hospital (R at 317-319)
• March 9, 2013 Consultative Examination Report of Atul Shah, M.D. (R at 335-343) • September 17, 2013 records from Lourdes Andaya, M.D. (R at 369-372)

R at 14-15.

The Undersigned makes particular note of medical records from 2011 which indicate that Plaintiff: complained of headaches and blamed morphine (R at 207); admitted to non-compliance with medication (R at 205); had an EKG/stress test which showed "fair exercise fitness level, " (R at 222); reported "acute onset of mild respiratory distress with difficulty in breathing, " (R at 225-226); but had no demonstration of airspace disease (R at 232). During 2012, a chest x-ray showed no acute cardiopulmonary process (R at 297) and a cardiology consultation noted, "patient is not very willing to cooperate with the probation of history[, ]" (R at 251). Plaintiff was brought to the emergency room in police custody at Providence Hospital on November 2, 2012. A record from that visit indicates that, "The patient is very, very difficult and noncompliant, stubborn and [does] not like to follow the advice of doing that test and taking the [blood pressure] medication." (R at 239). Moreover, other records indicate that, during 2013, Plaintiff "stopped taking his blood pressure medication 2 weeks ago because he did not like the way it made him feel[, ]" (R at 266). During this time-frame he went to the ER to be evaluated for tuberculosis, but there is no indication of his having been diagnosed with the disease, although it is listed as "suspected" and "possible" (R at 330, 332-333); instead, a chest x-ray "revealed no acute processes" and a CT scan of his thorax indicated no more than mild cardiomegaly and possible signs of pneumonia (R at 330, 325). He was admitted as an inpatient and appears to have been put in isolation as a precaution, while awaiting an infectious disease consultation. (R at 330). Nevertheless, on March 9, 2013, Plaintiff self-reported a recent diagnosis of tuberculosis; and claimed that he had "started his TB medications in the hospital, but... left against the advice of CDC because of a family emergency[.]" The internal medicine report from this visit lists an impression of tuberculosis, apparently based upon the medical history given by the patient, noting that he "has been advised to take medications and is waiting to take those now." R at 335, 337).[2] Plaintiff was also diagnosed with gout and osteoarthritis (R at 355, 359-360).

C. Hearing Testimony

1. Plaintiff's Testimony Regarding His Education ...


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