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Elms v. Commissioner of Social Security

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

September 18, 2017




         Plaintiff 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.


         On October 16, 2012, Plaintiff filed an applications for DIB and SSI, alleging an onset of disability date of June 11, 2012 (Tr. 166, 173).[1] 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).

         Plaintiff filed for judicial review of the final decision in this Court on January 19, 2016.


         Plaintiff, 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. 204).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         He 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).

         Plaintiff 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).

         Plaintiff 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).

         In 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).

         B. Medical Evidence

         1. Records Related to Plaintiff's Treatment

         On June 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).

         Rehabilitation 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).

         Dr. 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).

         2. Non-Treating Records

         In 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 ...

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