United States District Court, E.D. Michigan, Southern Division
Steven Whalen, U.S. Magistrate Judge
ORDER ADOPTING REPORT AND RECOMMENDATION ;
OVERRULING PLAINTIFF'S OBJECTION ; DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ; AND
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
J. Tarnow, Senior United States District Judge
Ricky Pangburn seeks judicial review of the decision of an
Administrative Law Judge (“ALJ”) denying his
application for disability benefits. Plaintiff filed a Motion
for Summary Judgment [Dkt. 13] on May 8, 2017. Defendant
filed a Motion for Summary Judgment  on June 15, 2017.
November 7, 2017, the Magistrate Judge issued a Report and
Recommendation  recommending that the Court grant
Defendant's Motion for Summary Judgment and deny
Plaintiff's Motion for Summary Judgment. Plaintiff timely
filed his Objection on November 21, 2017. .
reasons stated below, the Court ADOPTS the
Report and Recommendation . Plaintiff's Objection to
the Report and Recommendation  is
OVERRULED. Plaintiff's Motion for
Summary Judgment  is DENIED.
Defendant's Motion for Summary Judgment  is
Background The R&R summarized the record as follows:
August 26, 2013, Plaintiff filed an application for DIB,
alleging a disability onset date of July 17, 2013 (Tr. 124).
After the initial denial of the claim, Plaintiff filed a
request for an administrative hearing, held in Detroit,
Michigan before Administrative Law Judge (“ALJ”)
Ena Weathers (Tr. 26). Plaintiff, represented by Frank
Partipilo, testified, as did Vocational Expert
(“VE”) Pauline Pegram (Tr. 31-46, 46-53). On July
2, 2015, ALJ Weathers found that Plaintiff not disabled (Tr.
12-22). On August 4, 2016, the Appeals Council denied review
(Tr. 3-7). Plaintiff filed for judicial review in this Court
on September 19, 2016.
born June 20, 1952, was 63 when the ALJ issued her decision
(Tr. 22, 124). He completed 12th grade and worked as a
programmer from February, 1982 to June, 2013 (Tr. 158). He
alleges disability due to arthritis with related pain and
swelling (Tr. 156).
offered the following testimony:
stood 5' 5" and weighed 201 pounds (Tr. 31).
Although formerly right-handed, he was currently left-handed
due to shoulder problems (Tr. 31). He was married and his
youngest child was 32 (Tr. 32). He and his wife supported
themselves with two “very small” retirement
pensions and wife's Social Security Disability payments
(Tr. 32). He held a valid driver's license and drove
short distances twice a week (Tr. 32). His doctor had not
imposed driving restrictions (Tr. 33). He did not experience
problems reading or writing (Tr. 33). He served in the Army
but was assigned to “light duty” after an
accident (Tr. 34).
stopped working in July, 2013 when his job was terminated
(Tr. 34). He had not sought other work due to his inability
to sit for any meaningful period, the need to use a cane, a
limp, and the need to elevate his leg three to four hours a
day to alleviate pain and swelling (Tr. 34). His dismissal
was “partially” attributable to his need for a
cane (Tr. 35). He currently received treatment for
hypertension and sporadic treatment for leg problems (Tr.
35). He took only Aleve and Advil for relief of swelling and
body pain due to medication side effects of stomach
ulceration from prescription pain medication (Tr. 35). He had
not undergone surgery, attended physical therapy, or sought
emergency treatment for the leg condition in “a long
time” (Tr. 36). On a scale of one to ten, he
experienced level “seven” to “nine”
pain with the use of over-the-counter pain medication (Tr.
36). His doctor told him that his condition could not be
improved (Tr. 37). He was unable to sit or stand for more
than five to ten minutes and even with the use of a cane was
unable to walk more than 100 yards (Tr. 37). He was able to
lift up to 15 pounds with his left hand but was unable to
perform any lifting on the right (Tr. 38).
arising at around 6:30 a.m., he let out the dog, walked to
the mailbox, had coffee, sat down, and had a brief walk
around his yard (Tr. 38). He spent four to five hours each
day in a reclining chair (Tr. 38). His housework was limited
to doing dishes and tidying up (Tr. 39). As a result of
nighttime sleep interruptions he took two afternoon naps (Tr.
39). He was able to dress himself but was “not
good” at grocery shopping (Tr. 40). He accompanied his
wife on her shopping trips (Tr. 39). He seldom used a
computer due to his right arm falling asleep (Tr. 40).
response to questioning by his attorney, Plaintiff reported
that he used a cane due to right-sided weakness and because
he was prone to stumbling (Tr. 40). His lower extremity
condition had worsened since July, 2013 (Tr. 40). In his
former work, Plaintiff spent around 50 percent of the workday
moving machines (Tr. 41). The “programer”
position consisted of both programming work and lifting up to
60 pounds (Tr. 42). During the workday, Plaintiff would
sometimes “hide” from his supervisors to avoid
heavy lifting (Tr. 42-43). His lower extremity pain was
relieved by elevating his legs to heart level (Tr. 43). He
was required to wear compression socks due to leg swelling
(Tr. 43). At present, he spent up to six hours a day in a
recliner with his leg elevated (Tr. 44). Due to right
shoulder pain, he was unable to do any right-sided overhead
reaching (Tr. 44). His right arm fell asleep anywhere between
five and thirty minutes after being after being [sic] in one
position (Tr. 44). On a “bad” days [sic]
occurring twice a week, he did not get dressed and spent the
entire day in a couch or chair (Tr. 45).
Records Relating to Plaintiff's Treatment0
August, 1978, Max Karl Newman, M.D. noted that as a result of
a 1973 vehicle accident, Plaintiff experienced shortening of
the right leg with atrophy and sensory peroneal neuropathy
and motor neuropathy (Tr. 235).
2012 imaging studies taken following a “slip and
fall” at work showed “minimal degernerative joint
disease” of the right knee and right little finger (Tr.
206). Imaging studies showed “mild to moderate
degenerative arthritic changes” to the right shoulder
(Tr. 206). May, 2013 treating records by Scott McPhilimy,
D.O. note an evaluation for hyperlipidemia and hypertension
(Tr. 214). Plaintiff reported that he walked approximately
one mile each night with his daughter and granddaughters (Tr.
214). Plaintiff reported symptoms of anxiety, noting that he
did “pretty well” taking Xanax on an as-needed
basis (Tr. 214). Dr. McPhilimy noted the conditions of
“pain in limb” and “chronic pain/traumatic
injury to leg” (Tr. 215). He advised Plaintiff to
continue to exercise on a daily basis for weight loss and
cardiovascular fitness (Tr. 215). He gave Plaintiff a
handicap placard (Tr. 207, 215).
McPhilimy completed an assessment of Plaintiff's
work-related activities, finding that Plaintiff was precluded
from all ladder climbing; could stoop and crouch on only a
rare basis; climb stairs occasionally; and twist frequently
(Tr. 209). He found that due to Plaintiff's physical
limitations, he would be expected to miss work about four
days each month (Tr. 209). He found that Plaintiff
experienced “distractability” and concentrational
problems due to pain and right leg weakness, numbness, and
sensitivity (Tr. 209, 211). Dr. McPhilimy noted that
Plaintiff “was deemed unfit for any physical endurance
by VA . . .” (Tr. 209). He found that Plaintiff was
unable to sit, stand, or walk for even two hours in an
eight-hour workday and would be required to stop work to walk
every 15-20 minutes for up to 10 minutes at a time (Tr. 210).
He found that Plaintiff would be required to elevate his left
foot above heart level for 75 percent of the workday ...