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Kowalewski v. Commisioner of Social Security

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

March 14, 2017




         Plaintiff 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.


         On 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).

         Plaintiff, 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.


         Plaintiff, 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).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         She 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).

         She 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).

         In 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. 39).

         In 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).

         Independent 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).

         Plaintiff 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).

         B. Medical Evidence

         1. Treating Sources

         A May, 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).

         In 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).

         In 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).

         Plaintiff was administered Heparin after the discovery of a thromboplastin (Tr. 620).

         In 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. ...

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