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Pangburn v. Commissioner of Social Security

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

February 21, 2018

Ricky Pangburn, Plaintiff,
Commissioner of Social Security, Defendant.

          R. Steven Whalen, U.S. Magistrate Judge


          Arthur J. Tarnow, Senior United States District Judge

         Plaintiff 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 [15] on June 15, 2017.

         On November 7, 2017, the Magistrate Judge issued a Report and Recommendation [16] 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. [17].

         For the reasons stated below, the Court ADOPTS the Report and Recommendation [16]. Plaintiff's Objection to the Report and Recommendation [17] is OVERRULED. Plaintiff's Motion for Summary Judgment [13] is DENIED. Defendant's Motion for Summary Judgment [15] is GRANTED.

         Factual Background The R&R summarized the record as follows:


         On 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.


         Plaintiff, 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).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         He 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).

         Plaintiff 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).

         Upon 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).

         In 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).

         B. Medical Evidence

         1. Records Relating to Plaintiff's Treatment0

         In 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).

         March, 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).

         Dr. 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 ...

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