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Wolfe v. Commissioner of Social Security

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

November 26, 2017

SCOTT R. WOLFE, Plaintiff,

          District Judge Gershwin A. Drain



         Plaintiff(“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”) 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 #13].


         On 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.


         Plaintiff, 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).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         He left 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).

         Plaintiff 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 (Tr. 57).

         Plaintiff 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).

         Plaintiff 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).

         B. The Case Manager's Testimony

         Joshua Winkel, Plaintiff's case manager, testified as follows:

         Mr. 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).

         C. Medical Records[1]

         1. Records Related to Plaintiff's Treatment

         In 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).

         July, 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” (Tr. 263).

         In 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” (Tr. 313).

         Treating 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 ...

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