United States District Court, E.D. Michigan, Southern Division
SCOTT R. WOLFE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
District Judge Gershwin A. Drain
REPORT AND RECOMMENDATION
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE
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”) under Title II and Supplemental Security
Income (“SSI”) under Title XVI of the Social
Security Act. The parties have filed cross-motions for
summary judgment which have been referred for a Report and
Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For
the reasons set forth below, I recommend that Defendant's
Motion for Summary Judgment be GRANTED [Docket #18] and that
Plaintiff's Motion for Summary Judgment be DENIED [Docket
August 12, 2013 and September 4, 2013 respectively, Plaintiff
filed applications for SSI and DIB, alleging disability as of
January 30, 2013 (Tr. 145, 152). Upon initial denial of the
claim, Plaintiff requested an administrative hearing, held on
November 13, 2014 in Lansing, Michigan (Tr. 44).
Administrative Law Judge (“ALJ”) Thomas L.
Walters presided. Plaintiff, represented by Bryan Christie,
testified, as did Vocational Expert (“VE”) Joanne
Pfeiffer (Tr. 48-64, 69-74). Joshua Winkel, Plaintiff's
case manager, also testified (Tr. 65-69). On December 18,
2014, ALJ Walters determined that Plaintiff was capable of a
significant range of unskilled, exertionally light work (Tr.
26-40). On August 31, 2016, the Appeals Council declined to
review the administrative decision (Tr. 1-6). Plaintiff filed
suit in this Court on October 11, 2016.
born December 21, 1980, was just short of his 34th
birthday at the time of the administrative decision (Tr. 40,
145). His application states that he completed eighth grade
and worked previously as a bus boy/dishwasher, busser,
laborer, and pizza cook (Tr. 181). He alleges disability as a
result of muscle spasms, acid reflux, Gastroesophageal Reflux
Disease (“GERD”), depression, and cognitive,
spinal, and throat problems (Tr. 180).
offered the following testimony:
school after seventh grade (Tr. 48). He was held back in
kindergarten twice (Tr. 49). He attempted but failed to
obtain a GED (Tr. 49). He was “partially
dyslexic” (Tr. 49). He was divorced and had a daughter,
10, who lived with his former wife (Tr. 49). His income was
currently limited to food stamps (Tr. 49). He did not have an
address of his own, but received mail at his
grandfather's house (Tr. 50). He worked as a
busser/dishwasher for around 10 years until he was terminated
in January, 2013 (Tr. 50). He was let go after experiencing
auditory hallucinations, anxiety, agitation, and increased
back pain (Tr. 52).
began experiencing hallucinations at the age of 10 and had
been on and off psychotropic medication most of the time
since (Tr. 53). Following the January, 2013 termination, he
attempted to make money by selling scrap metal, but soon
after experienced a back injury (Tr. 54). He used a cane on
the recommendation of his physician (Tr. 55). He experienced
spinal pain from his neck downward (Tr. 56). The back pain
caused sleep disturbances requiring him to take daytime naps
(Tr. 56-57). He was unable to stand more than 20 minutes
before experiencing leg spasms (Tr. 56). He held a
driver's license but felt “safer” when
someone else drove (Tr. 57). He did not have legal problems
was unable to lift more than 10 pounds (Tr. 58). He
experienced “good” days around once a week, at
which time his was not in pain or having audio hallucinations
(Tr. 59). In contrast, on a “bad” day, he was
“barely” able to get out of bed due to physical
limitations, mental problems, and discouraging comments from
others (Tr. 59). He was currently living with his girlfriend
and her mother (Tr. 59). His household activities were
limited to drying and putting away dishes (Tr. 60). He did
not have other friends (Tr. 60). During his working years, he
was able to fix cars, fish, play, pool, attend social events,
and bowl (Tr. 61). He was now unable to walk for more than
one city block (Tr. 61).
currently took Neurontin, Tramadol, and Zanaflex for his back
condition (Tr. 61). He also took Abilify for his
psychological conditions (Tr. 62). He experienced the
medication side effects of dizziness, nausea, and shortness
of breath on a transient basis (Tr. 63-64). He opined that he
would be unable to perform his former job due to his
“mental state” and the job's lifting
requirements of up to 70 pounds on a regular basis (Tr. 64).
The Case Manager's Testimony
Winkel, Plaintiff's case manager, testified as follows:
Winkel's job was to assist individuals in completing
paperwork, applying for Social Security benefits, housing,
and coordinating physical and mental health care (Tr. 65-66).
He had been Plaintiff's case manager for only two months
but had reviewed Plaintiff's records for the past two
years (Tr. 66). Mr. Winkel was attempting to obtain
“more aggressive” therapy for Plaintiff (Tr. 67).
Mr Winkel believed that Plaintiff was not capable of
competitive employment due to sleep disturbances and
hallucinations (Tr. 68). He believed that the hallucinations
could “command [Plaintiff] to do something violent,
” citing medical records stating that Plaintiff had
“punched walls in the past” (Tr. 69). He agreed
with Dr. Deflon's treating opinion that Plaintiff would
miss up to four days of work each month (Tr. 69).
Records Related to Plaintiff's Treatment
November, 2012, Plaintiff was treated for food bolus
impaction after eating turkey (Tr. 239-240). He underwent the
removal of food without complications (Tr. 236). He was
advised to avoid beef, chicken, turkey, and pork and follow a
“soft bland diet” for four weeks (Tr. 240).
February, 2013 records by P.C. Patel, M.D. note
Plaintiff's report of radiating middle and lower back
pain (Tr. 292). Dr. Patel noted an unremarkable examination
of the spine (Tr. 292). Another examination from the same
month noted normal balance and gait (Tr. 283). March, 2013
records note an unremarkable spinal examination and that
Plaintiff was “alert and oriented” without
“unusual anxiety or evidence of depression” (Tr.
279). In April, 2013, Plaintiff sought treatment for chronic
left knee pain (Tr. 291). David Williamson, M.D. noted that
the left knee appeared “unremarkable” (Tr. 291).
In May, 2013, Plaintiff was diagnosed with mild gastritis and
mild diffuse esophagitis (Tr. 235). An EMG of the lower right
extremity from the same month was unremarkable (Tr. 287). A
June, 2013 MRI of the lumbar spine showed “mild diffuse
L5-S1 disc bulge” with only moderate stenosis (Tr.
286). The study was negative for herniation or other
abnormalities (Tr. 286). An examination from the same month
noted a steady gait but “strange shakes” of the
left side while walking (Tr. 270).
2013 records note Plaintiff's report of worsening back
pain (Tr. 265). The records note that his “gait
appeare[d] ataxic but unclear if intentional” (Tr.
267). He exhibited a normal affect and mood (Tr. 267).
Plaintiff reported anxiety and concentrational problems due
to “multiple social stressors and feeling overwhelmed
with constantly racing thoughts” (Tr. 266-267). Pain
management treating records from August, 2013 note
Plaintiff's report of middle and lower back pain for the
past year (Tr. 258). Plaintiff reported that physical therapy
exacerbated his pain (Tr. 258). He exhibited a normal gait
and muscle tone (Tr. 259-260). September, 2013 records note
Plaintiff's report of depression and anxiety (Tr. 262).
Plaintiff reported that marijuana did not improve his back
condition and that he could “get opiates off [the]
streets” (Tr. 264). Plaintiff declined an offer for
Selective Serotonin Reuptake Inhibitors (“SSRIs”)
for depression, stating that they were “garbage”
November, 2013, Plaintiff reported worsening knee and back
pain (Tr. 365). Plaintiff reported that he was limited to
walking 10 blocks at a time (Tr. 365). He exhibited a normal
gait (Tr. 361). The same month, Bernardo Rodriguez, M.D.
examined Plaintiff in response to reports of back pain and
leg tremors, noting “suspicio[n] of psychogenic
tremors, and that the examination responses were
“inconsistent and the findings disappear with
distraction” (Tr. 313). Dr. Rodriguez concluded that
Plaintiff did not require further neurologic work up but
would benefit from a “psychiatric evaluation”
notes from the following month note Plaintiff's report of
anxiety, depression, concentrational problems, and
hallucinations (Tr. 352). Plaintiff reported that he was
hearing voices telling him to hurt other people (Tr. 352). He
exhibited normal judgment but was advised to “go