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Markgraff v. Commissioner of Social Security

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

January 22, 2018


          Marianne O. Battani District Judge



         Plaintiff 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].


         On 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.


         Plaintiff, 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 (Tr. 352).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         1. May 2, 2014 Hearing

         He had 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).

         On a 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).

         In 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).

         Plaintiff 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).

         2. February 17, 2015 Hearing

         Plaintiff 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).

         B. Dr. Francis' Testimony

         Dr. Francis testified as follows:

         He 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. 96-97).

         In 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).

         Dr. 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).

         C. Medical Records

         1. Records Related to Plaintiff's Treatment [1]

         On 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).

         Physical 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 ...

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