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Shipman v. Commissioner of Social Security

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

September 25, 2017




         Plaintiff Daniel Richard Shipman brings this action pursuant to 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner denying his application for Disability Insurance Benefits (“DIB”) under the Social Security Act. Both parties have filed summary judgment motions. For the reasons set forth below, Defendant's motion for summary judgment [Dock. #28] is GRANTED and Plaintiff's motion for summary judgment [Dock. #23] is DENIED.


         On August 21, 2013, Plaintiff filed an application for DIB, alleging disability as of November 19, 2009[1] (Tr. 206-218). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on March 9, 2015, in Mount Pleasant, Michigan before Administrative Law Judge (“ALJ”) Manh Nguyen (Tr. 35). Plaintiff, represented by attorney Janice Brownson, testified (Tr. 40-69), as did Vocational Expert (“VE”) Michelle Ross (Tr. 69-74). On May 7, 2015, ALJ Nguyen found that Plaintiff was not disabled through the date last insured of December 31, 2014 (Tr. 18-30). On April 12, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on June 16, 2016.


         Plaintiff, born May 27, 1977, was just short of his 38th birthday when the ALJ issued his decision (Tr. 30-206). He completed a GED and worked as an automotive technician (Tr. 238-239). He alleges disability due to upper and lower extremity numbness; depression; anxiety; chronic back, neck, and leg pain; and migraine headaches (Tr. 237).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         He lived in West Branch, Michigan, stood 6' 4", weighed 275 pounds, and lived with his wife and three of his children (Tr. 41). His childcare activities were limited to directing them to do their daily chores, prepare appropriate meals, go to bed at a reasonable time, and “oversee[ing]” their homework (Tr. 41). He was unable to engage in sports with his son due to back pain (Tr. 42).

         In response to questioning by his attorney, Plaintiff reported that he had not worked since being injured “on the job” in 2009 (Tr. 44). His lower back condition had worsened since the January, 2012 administrative decision (Tr. 44-45). Due to the back condition, his legs collapsed beneath him periodically requiring him to recline for several hours (Tr. 45). As a result of continual neck pain, he experienced sleep disturbances (Tr. 45). He also experienced sharp left shoulder pain, required the use of wrist splints due to a diagnosis of Carpal Tunnel Syndrome, and experienced lower extremity swelling for which he wore support hose (“CTS”) (Tr. 45). He treated his pain with medication, physical therapy, and injections (Tr. 46). He did not experience any improvement from the injections (Tr. 47). He had been told by a neurologist that the back condition was best treated with conservative care (Tr. 48). His upper back problems were triggered by “just normal movements” (Tr. 50). The episodes of upper back pain were currently “few and far between” because he had learned how to move to avoid pain (Tr. 50). He experienced ongoing wrist and finger pain (Tr. 51). His problems gripping were worse in the left (non-dominant) hand (Tr. 51). He was unable to perform manipulative manipulations with the right hand (Tr. 52).

         Plaintiff's physician prescribed the use of a cane one year before the hearing (Tr. 52). Plaintiff experienced only limited relief from pain medication (Tr. 54). He experienced the medication side effects of memory problems and nightmares (Tr. 55). He took daytime naps due to nighttime sleep disturbances (Tr. 55). His most comfortable position was lying flat on his back (Tr. 57). He was able to sit for up to 40 minutes at a time and stand and walk for 10 (Tr. 57-58). He was unable to lift more than eight pounds (Tr. 60). He went shopping with his wife once every two weeks but was required to rest on a bench periodically while his wife grocery shopped (Tr. 60). He was able to cook one meal a week (Tr. 65). He experienced up to two “bad” days each week at which time he spent the day in bed (Tr. 66). He was unable to perform any other household, yard, or laundry chores (Tr. 67). Due to pain and mental distraction, he was unable to follow the plot of a movie or television show (Tr. 68).

         As a result of his physical limitations and inability to provide for his family, Plaintiff also experienced depression and anxiety (Tr. 63). On one occasional he sought emergency treatment believing that he was having a heart attack before receiving a diagnosis of anxiety (Tr. 63-64). His symptoms were mostly resolved with the use of anti-anxiety medication (Tr. 64-65).

         B. Medical Evidence[2]

         1. Treating Sources

         In June, 2010 John N. DiBella, M.D. noted Plaintiff's report of thoracic and low back pain since a November, 2009 workplace injury (Tr. 317 see Tr. 326). Dr. DiBella noted later the same month that Plaintiff obtained good results with steroid injections to the thoracic spine (Tr. 314).

         September, 2011 EMG studies of the bilateral lower extremities ordered by Mohammed M. Al-Qasmi, M.D. showed mild right L4 radiculopathy with a normal left leg (Tr. 374, 380, 383).

         On January 13, 2012, Plaintiff reported continued low back pain and migraine headaches (Tr. 433). The same month, Dr. Al-Qasmi observed good motor strength in the lower and upper extremities but diminished reflexes (Tr. 369). He noted a normal gait and station (Tr. 369). Dr. Al-Qasmi recommended continued physical therapy (Tr. 369-370). In May, 2012, Dr. Al-Qasmi made similar findings but noted Plaintiff's report that steroid injections were mostly ineffective (Tr. 367-368). July, 2012 treating records by Clark Jones, D.O. note a normal gait, full orientation and a normal mood (Tr. 410). Plaintiff reported leg numbness from sitting in one position for extended periods (Tr. 410). October, 2012 imaging studies of the cervical spine were unremarkable (Tr. 416, 516). Dr. Al-Qasmi's November, 2012 records note Plaintiff's report of increased left leg pain and right arm numbness with a weakened grip (Tr. 365). Dr. Al-Qasmi observed an antalgic gait and station (Tr. 365). Treating notes by Dr. Jones from the same month note an appropriate mood and affect (Tr. 405).

         In January, 2013, Dr. Jones noted Plaintiff's report of dizziness and memory problems but noted a normal affect and full orientation (Tr. 402-403). In May, 2013, Plaintiff sought emergency treatment for dizziness and chest pain (Tr. 355). He was diagnosed with anxiety (Tr. 355). Dr. Al-Qasmi recommended physical therapy for complaints of upper and lower extremity radiculopathy (Tr. 363-364). The following month, EMG studies of the upper extremities showed left-sided mild, chronic C6-C7 radiculopathy, moderately severe left Carpal Tunnel Syndrome (“CTS”), and mild bilateral ulnar mononeuropathy of the elbows (Tr. 380). July, 2013 records state that Plaintiff was exercising and doing stretching exercises and had reduced symptoms of anxiety (Tr. 511). September, 2013 treating records note an appropriate affect despite Plaintiff's report of anxiety and depression (Tr. 399-400). Plaintiff reported that the symptoms of anxiety were reduced (Tr. 398). December, 2013 treating notes state that Plaintiff did not experience significant relief from prescribed pain medication, used a cane, and experienced right elbow pain (Tr. 499).

         In March, 2014, Plaintiff was prescribed compression stockings for lower extremity edema (Tr. 497). An MRI of the lumbar spine from the same month showed only a small disc protrusion at L4-L5 and very mild degenerative changes (Tr. 513, 542). An MRI of the thoracic spine showed only a small disc protrusion at T9-T10 (Tr. 514). An MRI of the cervical spine showed a small herniation at C6-C7 (Tr. 541, 574). May, 2014 treating records note the need for a cane (Tr. 493). The same month, Dr. Al-Qasmi increased Plaintiff's dosage of Neurontin but noted full strength, normal memory, and good coordination (Tr. 549). September, 2014 treating records note ongoing anxiety attacks (Tr. 481-482). Plaintiff reported continued sleep disturbances due to pain (Tr. 485). He also reported recent falls (Tr. 485). Treating records note an abnormal gait but full orientation (Tr. 485).

         The same month, neurologist Jayant Jagannathan, M.D. performed a surgical consultation (Tr. 538). He advised against surgery but recommended “pain management, ” including medication and injections (Tr. 539). In November, 2014, Dr. Al-Qasmi noted a normal gait and full strength but that Plaintiff used a cane (Tr. 546). Treating records from the same month state that Plaintiff was advised to avoid alcoholic beverages (Tr. 570). February, 2015 treating records note Plaintiff's report of back pain, depression, anxiety, ...

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