United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER
R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.
Cornell Elms (“Plaintiff”) brings this action
under 42 U.S.C. §405(g), challenging a final decision of
Defendant Commissioner denying his application for Disability
Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under the Social Security
Act. For the reasons discussed below, Defendant's Motion
for Summary Judgment [Docket #24] is DENIED. Plaintiff's
Motion for Summary Judgment [Docket #17] is GRANTED to the
extent that the case is remanded to the administrative level
for further administrative proceedings.
October 16, 2012, Plaintiff filed an applications for DIB and
SSI, alleging an onset of disability date of June 11, 2012
(Tr. 166, 173). After the initial denial of the claim,
Plaintiff filed a request for an administrative hearing, held
on February 26, 2014 in Detroit, Michigan before
Administrative Law Judge (“ALJ”) Michael R. Dunn
(Tr. 29). Plaintiff, represented by Ronald D. Glotta,
testified (Tr. 35-48), as did Vocational Expert
(“VE”) Don Harrison (Tr. 48-55). On August 13,
2014, ALJ Dunn found Plaintiff not disabled (Tr. 13-24). On
November 25, 2015, the Appeals Council denied review and
declined to add newer medical records to the transcript on
the basis that they were irrelevant to whether Plaintiff was
disabled on or before August 13, 2014 (Tr. 1-6).
filed for judicial review of the final decision in this Court
on January 19, 2016.
born December 24, 1966, was 47 when ALJ Dunn issued his
decision (Tr. 24, 166). He completed two years of college and
worked previously as a laborer and loss prevention specialist
at a retail store (Tr. 205). His application for benefits
states that he is disabled as a result of depression,
headaches, and problems of the neck, back, and shoulder (Tr.
offered the following testimony:
lived in Taylor, Michigan with his sister (Tr. 35). He held a
valid driver's license and drove about three days a week
(Tr. 35). He was unable to drive more than 40 minutes at a
time due to neck, back, and right shoulder pain (Tr. 35). He
stood 5' 7" and weighed 175 pounds (Tr. 36). He was
divorced with one child, 12 (Tr. 36).
became disabled on June 11, 2012 due to a motor vehicle
accident (Tr. 37). As a result, his preexisting conditions of
depression, headaches, and neck, back, and shoulder problems
were exacerbated (Tr. 37). Due to the accident, he was
diagnosed with a herniated disc (Tr. 38). He experienced low
back pain radiating down to his right ankle (Tr. 39). His
neck and shoulder pain were related (Tr. 39). Although
Plaintiff experienced depression, he had not received
treatment since before the accident (Tr. 40). His medication
was limited to Vicodin, Xanax, and aspirin (Tr. 41). He
denied current medication side effects (Tr. 41). He did not
require the use of splints or braces but used a cane
prescribed by a treating physician (Tr. 42). He denied the
use of alcohol but admitted to using marijuana up to twice a
week (Tr. 42).
was unable to walk for more than 15 steps before requiring a
rest (Tr. 42-43). He relied on the cane to cope with shooting
neck and right lower back pain (Tr. 43). He was unable to sit
for more than 45 minutes at a time (Tr. 43). He did not
experience problems with manipulative activities and was able
to dress himself (Tr. 43). He was able to prepare simple
meals, do laundry, and make short grocery trips but was
unable to vacuum (Tr. 43-44). On a typical day, he would
arise, perform exercises, and then watch television (Tr. 44).
response to questioning by his attorney, Plaintiff noted that
he had discussed obtaining a medical marijuana card with his
treating physician (Tr. 44). Plaintiff reported hand numbness
while he slept and “sometimes during the day”
(Tr. 44). He attended rehabilitation after the accident but
did not have insurance coverage for either additional
rehabilitation or mental health treatment (Tr. 45). He
experienced headaches one to three times a week at which time
he would lie down until the headache subsided (Tr. 65).
Records Related to Plaintiff's Treatment
11, 2012, Plaintiff received emergency treatment after his
car was struck while he was waiting at a traffic light (Tr.
248-249). Plaintiff reported moderate pain and a headache
(Tr. 248). He appeared fully oriented with a full range of
motion (Tr. 248-250). A CT of the brain was negative for
abnormalities other than a soft tissue swelling of the scalp
(Tr. 252, 375, 476). A CT of the cervical spine showed a disc
herniation at ¶ 5-C6 (Tr. 254). Imaging studies of the
lumbar spine, pelvis, and thoracic spine were essentially
unremarkable (Tr. 256-258). Plaintiff was discharged the same
day in satisfactory condition (Tr. 259).
records from the following month note that Plaintiff received
pool therapy (Tr. 266). Plaintiff reported intermittent right
arm and hand pain (Tr. 269). The same month, Donald L.
Newman, M.D. noted Plaintiff's report of cervical and
lumbar spine stiffness and bilateral hand numbness (Tr. 350,
395). In August, 2012, Plaintiff reported good results from
heat therapy and less frequent pain (Tr. 304, 306). He was
able to walk normally without the use of a cane and appeared
comfortable sitting (Tr. 309). In September, 2012, Plaintiff
reported lower back pain and “numbness and pain in both
hands” (Tr. 292). He reported to Dr. Newman that
therapy was not helping (Tr. 349). Dr. Newman re-prescribed
Vicodin (Tr. 349). In October and November, 2012, Plaintiff
reported persistent neck and low back pain (Tr. 273, 275,
282, 285, 394, 466). In November, 2012, Dr. Newman observed a
reduced bilateral hand grip (Tr. 347, 393). Plaintiff
reported using a heating pad for pain (Tr. 345).
Newman's June, 2013 records state that Plaintiff's
activities had decreased since the accident one year earlier
due to stiffness and tightness of the cervical and lumbar
spine (Tr. 388). September, 2013 records by Dr. Newman state
that Plaintiff exhibited a reduced range of cervical spine
motion and radiating lumbar spine pain (Tr. 387). Dr.
Newman's December, 2013 records state that the
“auto accident case settled” but that Plaintiff
was awaiting a hearing in the claim for DIB benefits (Tr.
386). Dr. Newman's February, 2014 treating records state
that Plaintiff experienced arm and hand numbness with
constant lumbar spine pain (Tr. 385, 456). The same month,
Dr. Newman testified under oath that before the June, 2012
accident, Plaintiff experienced difficulty standing greater
than 45 minutes or lifting/pulling greater than 35 pounds
(Tr. 407). Dr. Newman noted that Plaintiff reported severe
headaches occurring two to three times a day and lasting for
half an hour (Tr. 409). Dr. Newman noted that the headaches
were consistent with diagnosis of disc herniation at ¶
5-C6 (Tr. 410). He found that Plaintiff's “ability
to cope has been severely compromised due to . . . chronic
pain and the use of pain medication” (Tr. 410). He
found that Plaintiff would have difficulty working more than
two to four hours a day, even with a sit/stand option (Tr.
410). Dr. Newman noted that Plaintiff would require work
where he could “actually . . . lie down to unload his
spine and head and neck” (Tr. 410). Dr. Newman's
May, 2014 state that Plaintiff reported constant cervical
pain, stiffness, and burning (Tr. 502).
October, 2012, Stanley S. Lee, M.D. performed a one-time
examination relating to the accident claim, noting
Plaintiff's report of neck, upper back, middle back,
lower back, shoulder, and upper extremity pain (Tr. 497-501).
Dr. Lee observed 5/5 hip strength, a full range of spinal
motion, normal muscle tone, and a normal gait (Tr. 499). He
concluded that Plaintiff experienced only a “minor soft
tissue strain” and did not require ...