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Wojtkowiak v. Commissioner of Social Security

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

March 19, 2018




         Plaintiff Rick T. Wojtkowiak (“Plaintiff”) brings this action under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner (“Defendant”) denying his application for Supplemental Security Income (“SSI”) under the Social Security Act. For the reasons discussed below, Defendant's Motion for Summary Judgment [Docket #24] is GRANTED and Plaintiff's Motion for Summary Judgment [Docket #18] is DENIED.


         On August 23, 2013, Plaintiff filed an application for SSI, alleging disability as of July 27, 2013 (Tr. 162). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on June 2, 2015 in Mt. Pleasant, Michigan before Administrative Law Judge (“ALJ”) Kendra S. Kleber (Tr. 30). Plaintiff, represented by attorney Frank Paripilo, testified (Tr. 40-66), as did Vocational Expert (“VE”) Donald Hecker (Tr. 67-72). On September 15, 2015, ALJ Kleber determined that Plaintiff was capable of a significant range of unskilled, light work (Tr. 13-25). On October 25, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision in this Court on December 9, 2016.

         Oral argument on the parties' cross-motions for summary judgment was held on March 15, 2018


         Plaintiff, born July 31, 1973, was 42 when ALJ Kleber issued her decision (Tr. 25, 162). He completed a 11th grade and worked as a fish taxidermist (Tr. 190). He alleges disability resulting from anxiety, Irritable Bowel Syndrome (“IBS”) acid reflux, a herniated disc, depression, asthma, degenerative disc disease, cyst in left kidney, and spinal cysts (Tr. 189).

         A. Plaintiff's Testimony

         Plaintiff's counsel prefaced his client's testimony by noting that an earlier application for disability benefits was denied on April 27, 2012. Counsel noted further that Plaintiff had been the recipient of a pacemaker a few months earlier but continued to experience shortness of breath and fatigue (Tr. 36).

         Plaintiff offered the following testimony:

         He lived in Gaylord Michigan (Tr. 40). He had not worked since 2013 at which time he was self-employed as a fish taxidermist (Tr. 40). He was unable to work due to back pain and anxiety (Tr. 41). As a result of anxiety, he was unable to cope with any level of workplace stress (Tr. 41). He had not had worked full time since he was a teenager (Tr. 41). The pacemaker had not improved his symptoms of shortness of breath, headaches, or heart palpitations (Tr. 42). He continued to experience constant daytime fatigue (Tr. 42). Although he experienced mild obstructive sleep apnea, his cardiologist directed him not to use a CPAP machine after the implantation of the pacemaker (Tr. 42-43). Neither his former use of the CPAP machine nor the pacemaker improved his condition (Tr. 43).

         Physical therapy failed to improve his back condition (Tr. 44). He had been told that he was too young to undergo spinal surgery (Tr. 45). He denied that one of his treating sources (“Dr. McKenzie”) told him to lose weight and exercise and been “very short” and “actually tried to hurry up and get done with the visit” (Tr. 46). Plaintiff's back pain was centered in his lower back but traveled into the hips and “sometimes” down the back of the left leg three to four times a month for an entire day (Tr. 47). The radiating pain was exacerbated by standing in one place (Tr. 48). On a typical day, he experienced level “7” pain on a 1 to 10 scale but 10 or more times a month was a 9 to 9.5 (Tr. 48). He coped with extreme back pain by reclining for an hour (Tr. 49). He was unable to sit for more than 30 minutes, stand for more than 15 minutes, or walk for more than two city blocks without experiencing back pain (Tr. 49). He experienced fatigue every day and for three days each week, experienced fatigue to the extent that returned to bed and slept for two hours (Tr. 50-51). He experienced level “4 to 5” level headaches every day (Tr. 51). His headaches were exacerbated by sunlight (Tr. 51). He coped with the headaches by taking over-the-counter medication and sleeping for up to two hours (Tr. 51).

         Plaintiff had also been experiencing shortness of breath for around nine months (Tr. 52). The shortness of breath was brought on by walking (Tr. 53). Inhalers did not help the condition (Tr. 53). Despite back pain and headaches, he used only over-the-counter pain medication (Tr. 53). He also coped with back pain by lying on a flat surface for up to half an hour at a time (Tr. 54). His most comfortable position was sitting in a recliner with his feet up (Tr. 54). He spent more than five hours a day sitting in a recliner (Tr. 54). The pacemaker implantation was “still healing” and along with the back pain, caused nighttime sleep disturbances (Tr. 55). He took around three naps a week lasting anywhere between one and two hours (Tr. 56).

         Due to fatigue, depression, and anxiety, Plaintiff experienced concentrational problems (Tr. 56). The condition of depression resulting in weekly crying jags and low self esteem (Tr. 56-57). He had experienced suicidal ideation recently but not at present (Tr. 57). He had seen a counsel once the previous week after an approximately 10-month hiatus (Tr. 57). He stopped counseling the previous year after his counselor told him that “there was nothing more than he could teach [him]” and that he “had to learn to deal with it” himself (Tr. 57-58). Since stopping treatment in August, 2014, his depression and anxiety had worsened (Tr. 59). He experienced anxiety while grocery shopping and had not shopped in the past two months (Tr. 60). He tried to shop when the store was not crowded (Tr. 60). His symptoms included a “fight or flight” response, nervousness, stuttering, and sweating (Tr. 61). He was unable to work with others due to shaking, sweating, and the feeling that everyone was staring at him (Tr. 62).

         His regular activities included performing household chores for up to 15 minutes after which he would experience back pain (Tr. 62). He currently lived with his parents (Tr. 63). His parents cooked the meals and performed most of the outdoor chores although sometimes, Plaintiff attempted to help them for up to half an hour at a time (Tr. 63). He did not participate in social activities (Tr. 64). He denied problems with ...

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