United States District Court, E.D. Michigan, Southern Division
JENNIFER L. KOWALEWSKI, Plaintiff
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE
Jennifer L. Kowalewski (“Plaintiff”) brings this
action under 42 U.S.C. § 405(g), challenging a final
decision of Defendant Commissioner denying her application
for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under the
Social Security Act. Both parties have filed summary judgment
motions. For the reasons set forth below, Plaintiff's
Motion for Summary Judgment [Docket #14] IS GRANTED to the
extent that the case is remanded for further administrative
proceedings, and Defendant's Motion for Summary Judgment
[Docket #15] is DENIED.
September 14, 2012, Plaintiff filed applications for DIB and
SSI, alleging an onset disability date of February 28, 2007
(Tr. 139-151). After the initial denial of her claim,
Plaintiff filed a request for an administrative hearing, held
on December 19, 2013 in Livonia, Michigan before
Administrative Law Judge (“ALJ”) Martha M.
Gasparovich (Tr. 28).
represented by attorney Clifford Walkon, testified (Tr.
32-54), as did Vocational Expert (“VE”) Luann
Castellana (Tr. 54-61). On February 10, 2014, ALJ Gasparovich
found that Plaintiff was not disabled (Tr. 22-23). On August
1, 2015, the Appeals Council denied review (Tr. 1-7). On
September 21, 2015, Plaintiff filed for judicial review of
the Commissioner's final decision.
born January 6, 1973, was 41 when the ALJ issued her decision
(Tr. 23, 139). She left school after ninth grade and worked
previously as a cashier, dispatcher, and restaurant worker
(Tr. 199). She alleges disability resulting from peripheral
neuropathy, cysts, a history of strokes, headaches, low back
pain, gait problems, and hypertension (Tr. 198).
offered the following testimony:
lived in Inkster, Michigan (Tr. 33). She left school in the
middle of ninth grade after being expelled (Tr. 33). She
enrolled in a course to be a medical assistant but did not
finish (Tr. 34).
last worked in 2007, at which time she was working at a fast
food restaurant (Tr. 34). She was a “very tolerant
person” and did well in “chaotic
situations” (Tr. 35). She stopped working due to
hypertension caused by the job-related stress (Tr. 35). She
was unable to work due to middle to lower back and hip pain
(Tr. 35). She took Tramadol for swelling and pain (Tr. 36).
She had not undergone physical therapy due to lack of
insurance (Tr. 36).
response to questioning by her attorney, Plaintiff reported
that she had lived with a platonic friend for the past 13
years in a single level home (Tr. 37). She received food
stamps and was awarded state disability assistance benefits
on October 24, 2013 (Tr. 37). Although she now had access to
free medical care due to the state disability award, she had
not had any insurance before that time (Tr. 37-38). Her back
pain had gotten progressively worse since 2007 (Tr. 38). The
pain radiated into the lower extremities on occasion (Tr.
39). On a scale of one to ten, she experienced level
“seven” pain when taking medication and
“eight” when not (Tr. 39). She had been using a
cane, both at home and in public, for the past 13 years (Tr.
2007, Plaintiff experienced a cerebrovascular accident
(“CVA”) (stroke) at which time she was
hospitalized for three days (Tr. 40). Due to lack of
insurance, she did not have the recommended physical therapy
but was discharged with a walker (Tr. 41). Since that time,
she experienced chronic balance problems (Tr. 41). She also
experienced fatty cysts of the hip and spine which caused
nerve root impingement (Tr. 41). She used hot packs and
medicine to relieve the back pain (Tr. 46). Lying on her side
also reduced the back pain (Tr. 46). Due to the back pain,
she spent most of the day reclining (Tr. 46).
of the problems caused by the cysts, she experienced lower
extremity myopathy which created leg weakness (Tr. 42). She
was diagnosed with diabetes in 2011 and currently took
Metformin (Tr. 43). She did not experience diabetes
complications (Tr. 44). She maintained a normal weight (Tr.
44). She sought emergency treatment in July, 2013 for a
migraine headache (Tr. 44). She now took medicine for the
migraines and did not experience the headaches more than once
or twice a month (Tr. 45). She coped with migraines by going
to bed, turning the lights off, putting a rag over her eyes
and “rid[ing] it out” (Tr. 45). The migraines
typically lasted between two hours and “half the
day” (Tr. 45). She currently took medicine for
hypertension (Tr. 47).
was typically unable to sit for more than 30 minutes without
experiencing back spasms (Tr. 47). Even with the use of a
cane, she was unable to walk more than two blocks (Tr. 47).
She could stand for up to 30 minutes, so long as she was able
to “lean over” to take pressure off her back (Tr.
48). She was unable to lift more than 15 pounds on an
occasional basis (Tr. 48). She was able to reach overhead,
provided that she was in a sitting position (Tr. 49). She
used alcohol on a rare basis and had not used marijuana in
the past 10 years (Tr. 50-51).
2006 CT of the head was unremarkable (Tr. 470). An August,
2006 echocardiogram was also unremarkable (Tr. 469). An
electroencephalogram, taken in response to Plaintiff's
report of “falling and generalized weakness, ”
yielded abnormal results due to “slowing” in the
bihemispheric area which could be “secondary to
seizure” (Tr. 467, 759). Imaging studies of the
cervical spine were normal (Tr. 468).
August, 2006, Plaintiff was diagnosed with a CVA after
experiencing left side numbness (Tr. 434). A February, 2007
chest x-ray was unremarkable (Tr. 464). Imaging studies of
the lumbar spine showed spondylolysis (Tr. 464). September,
2008 emergency records state that Plaintiff was legally
intoxicated (Tr. 626). A CT of the head was unremarkable (Tr.
463). January, 2010 imaging studies taken after a fall
resulting from intoxication were mostly unremarkable (Tr.
413, 426, 454-457) except for a CT of the lumbar spine
showing moderate disc protrusion at ¶ 4-L5 creating mild
effacement of the thecal sac (Tr. 453). She was diagnosed
with a concussion and acute alcohol intoxication (Tr. 423).
July, 2010, Plaintiff sought emergency treatment for a knee
injury (Tr. 243, 401). Her gait appeared “steady”
while using crutches (Tr. 244). She reported occasional
alcohol use (Tr. 242). Treating notes state that she was
“obvious[ly] intoxicated” and did not exhibit any
signs of knee injury (Tr. 245, 603). She was diagnosed with
acute alcohol intoxication (Tr. 249, 603). An October, 2010
CT of the head was unremarkable (Tr. 451). An echocardiogram
showed normal results (Tr. 448). Plaintiff reported facial
numbness (Tr. 390). Range of motion studies were unremarkable
(Tr. 390). She was again diagnosed with acute alcohol
intoxication (Tr. 382, 385, 399). She admitted to marijuana
use two days earlier (Tr. 381-382). A December, 2010 CT of
the abdomen was unremarkable (Tr. 460).
was administered Heparin after the discovery of a
thromboplastin (Tr. 620).
January, 2011, Asha Dayana, M.D. noted that Plaintiff's
migraines were under good control with medication (Tr. 690).
She also noted the conditions of anxiety and depression and
episodes of binge drinking (Tr. 690). In February, 2011,
David Fitch, D.O. examined Plaintiff, opining that the fatty
cysts did not contribute to the back problems (Tr. 676,
702-703). He prescribed a back brace and core strengthening
exercises (Tr. 677). His April, 2011 records note that
Plaintiff experienced difficulty standing upright and used a
cane (Tr. 679). He prescribed Ibuprofen 800 thrice daily (Tr.
679). An MRI from the same month showed a mild disc bulge at
¶ 4-L5 and mild abnormalities at ¶ 5-S1 (Tr. 731).
Other imaging studies showed a pars defect at L-5 (Tr. 730).
The following month, Dr. Fitch noted that Plaintiff's
insurance did not cover physical therapy (Tr. ...