United States District Court, E.D. Michigan, Southern Division
Marianne O. Battani District Judge
REPORT AND RECOMMENDATION
STEVEN WHALEN U.S. MAGISTRATE JUDGE
Donald Markgraff (“Plaintiff”) brings this action
under 42 U.S.C. §405(g), challenging a final decision of
Defendant Commissioner denying his applications for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Title
II and 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 #12] and that Plaintiff's Motion for
Summary Judgment be DENIED [Docket #11].
November 6, 2012, Plaintiff filed applications for DIB and
SSI, alleging disability as of October 22, 2011 (Tr. 274,
278). Upon initial denial of the claim, Plaintiff requested
an administrative hearing, held on May 2, 2014 (Tr. 104).
Administrative Law Judge (“ALJ”) Ronald T. Jordan
presided. Plaintiff, represented by attorney William
Watkinson, testified, as did Vocational Expert
(“VE”) James M. Fuller (Tr.109-125, 125-129). The
ALJ held a supplemental hearing on February 17, 2015 at which
Plaintiff and Medical Expert (“ME”) Anthony E.
Francis, M.D. testified (Tr. 80, 83-88, 89-102). On March 19,
2015, ALJ Jordan determined that Plaintiff was capable of a
significant range of unskilled, exertionally light work (Tr.
16, 25). On January 27, 2017, the Appeals Council declined to
review the administrative decision (Tr. 1-6). Plaintiff filed
suit in this Court on February 17, 2017.
born March 19, 1975, turned 40 on the day of the
administrative decision (Tr. 25, 274). He received a GED in
1995 and worked previously as an assembler, carpenter,
factory worker, packager, and utility operator (Tr. 353). He
alleges disability as a result of two ruptured thoracic discs
offered the following testimony:
May 2, 2014 Hearing
not worked since injuring his thoracic spine at work (Tr.
109). Extensive physical therapy subsequent to the accident
had not improved his condition (Tr. 110). His former job had
an official lifting requirement of 50 pounds but in reality,
he was sometimes required to lift up to 220 pounds (Tr. 110).
He was supported by his Workers' Compensation settlement
and his wife's income (Tr. 111-112).
typical day, he arose by 9:00 a.m., ate breakfast, took a
pain pill, and sat down and watched television (Tr. 112). Due
to the medication side effect of drowsiness, he spent most of
the day watching television and napping (Tr. 112). He had two
children, 15 and 12, living at home but did not participate
in getting them ready for school (Tr. 112). He did not
perform any household chores (Tr. 113). His driving was
limited to distances of 10 miles or less (Tr. 113). On a
scale of one to ten, his back pain level was a
“six” with medication and “eight”
without (Tr. 114).
response to questioning by his attorney, Plaintiff described
his pain as being stabbed with “a knife and twisting
it” (Tr. 115). He experienced the pain constantly (Tr.
115). His pain was worse in damp weather and became worse
with over-activity (Tr. 115). He also experienced hand
numbness two to three times a day and right leg numbness
three to four times a week (Tr. 115). During bouts of hand
numbness, lasting up to 20 minutes, he was unable to hold
anything (Tr. 116). At times when he experienced leg
numbness, he was required to sit down immediately to avoid
falling (Tr. 116). Since becoming injured, he had fallen down
between 30 and 40 times due to leg numbness (Tr. 117).
was unable to sit for more than 25 minutes at a time, stand
for more than five minutes, or walk for more than half a
block (Tr. 117-118). After walking for half a block, he
required a 10 to 15 minute break before walking again (Tr.
119). He was unable to lift more than five pounds, climb a
ladder, or climb more than two steps at a time (Tr. 119). He
experienced a severely limited ability to twist and kneel and
was unable to bend, crouch, crawl, or reach overhead (Tr.
120). He had refrained from taking pain medication before the
hearing because he wanted to remain “coherent”
during his testimony (Tr. 121). While medicated, he was
unable to read for more than two minutes before falling
asleep (Tr. 121-122). The pain caused sleep disturbances
preventing him from getting more than four hours of sleep at
night (Tr. 122). Due to nighttime sleep disturbances, he
typically took five 20-minute naps during the day (Tr. 123).
On occasions during damp weather, he was unable to get out of
bed (Tr. 124). Although he had been taking Percocet for at
least a year, he continued to experience the side effect of
drowsiness (Tr. 125).
February 17, 2015 Hearing
testified he was capable of standing up to 20 minutes (Tr.
83). He was now unable to get more than two hours of sleep
each night (Tr. 86). He took two to three naps a day lasting
up to an hour (Tr. 87). Otherwise, he had not a experienced a
significant change in his condition since the previous
hearing (Tr. 83-85). His dosage of Percocet had been
increased in the last year (Tr. 87). He began taking an
antidepressive medication the previous month after his doctor
observed that he appeared depressed (Tr. 88). He denied
surgery or recent physical therapy but had received two
injections in the past year (Tr. 88).
Dr. Francis' Testimony
Francis testified as follows:
noted that treating records created after the September, 2011
workplace accident limited Plaintiff to 10 to 15 pounds
lifting with a preclusion on overhead reaching (Tr. 91). He
noted that the treating records did not include a diagnosis
of upper extremity radiculopathy (Tr. 93, 95). He found that
the medical records did not support a finding that Plaintiff
met a listed impairment (Tr. 93). He noted a finding that
Plaintiff could lift up to 20 pounds and walk up to six hours
in an eight-hour workday with occasional postural activity
(Tr. 93). He noted that the findings were “perfectly
appropriate” based on the treating and examining source
evidence (Tr. 94). He found no evidence of a preclusion on
overhead reaching (Tr. 94). He characterized Plaintiff's
current dose of Percocet as “pretty low” (Tr.
96). He noted that one evaluation mentioned radiculopathy of
the bilateral upper extremities which “anatomically . .
. doesn't make any sense” given that
Plaintiff's injuries were not to the cervical spine (Tr.
response to questioning by Plaintiff's attorney, Dr.
Francis later allowed that the earlier, post injury records
showed “neuropathy” of the right upper extremity
(Tr. 93, 95, 98). He stated that February, 2012 imaging
studies of the cervical spine supported “some cervical
[spine] compromise” at the time of injury (Tr. 100). He
stated that evidence of ongoing cervical nerve root
compression would meet Listing 1.04(A) (Tr. 100).
Francis opined that radiculopathy of the upper extremities
“probably cleared” within 12 months of the injury
(Tr. 101). He noted no “evidence where any body's
diagnosed him with radiculopathy outside of an immediate time
period” of the injury (Tr. 101).
Records Related to Plaintiff's Treatment
September 18, 2011, Plaintiff sought emergency treatment for
“thoracic strain” (Tr. 415). He reported moderate
pain, numbness, and difficulty walking (Tr. 416). He was
prescribed Motrin 800 and Flexeril (Tr. 434-435). Imaging
studies of the cervical spine were unremarkable (Tr. 425,
752). Imaging studies of the thoracic and lumbar spine showed
only minimal degenerative changes (Tr. 426-427, 753-754).
Plaintiff reported right hand and foot tingling with level
“five” back pain (Tr. 443). Betty Rumschlag, D.O.
noted that the reported symptoms did “not seem to
correlate with the back pain that he is having” (Tr.
444). She found that Plaintiff could return to work “as
tolerated with no lifting over 10 pounds” (Tr. 445).
therapy notes from the end of the month state that Plaintiff
had been reassigned to less strenuous job duties (Tr. 437).
Plaintiff reported only minimal improvement from physical
therapy (Tr. 447). An MRI of the thoracic spine from the
following month showed disc protrusions at ¶ 5-T6 and
T8-T9 but no cord compression or signal changes (Tr. 428).
Gary Davis. D.O. noted that Plaintiff denied radiating lower
extremity pain (Tr. 448). A neurological evaluation of the
upper extremities was unremarkable (Tr. 448). He found that
Plaintiff could lift up to 20 pounds (Tr. 448). Keith R.
Barbour, D.O. noted 4/5 strength in the bilateral upper
extremities (Tr. 544, 646). In December, 2011, Iman S.
Abou-Chara, M.D. referred Plaintiff for steroid ...