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Kuchar-Kusznir v. Commissioner of Social Security

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

March 22, 2018




         Plaintiff Diana Kuchar-Kusznir (“Plaintiff”) brings this action under 42 U.S.C. §405(g) challenging a final decision of Defendant Commissioner denying her application for Disability Insurance Benefits (“DIB”) under the Social Security Act. Both parties have filed summary judgment motions. For the reasons set forth below, Defendant's Motion for Summary Judgment [Docket #24] is GRANTED, and Plaintiff's Motion for Summary Judgment [Docket #23] is DENIED.


         On January 22, 2014, Plaintiff filed an application for DIB, alleging disability as of May 1, 2005 (Tr. 143). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on June 29, 2015 in Oak Park, Michigan before Administrative Law Judge (“ALJ”) Patricia S. McKay (Tr. 31). Plaintiff, represented by attorney Frank Cusmano, testified (Tr. 38-71), as did Vocational Expert (“VE”) Pauline McEachin (Tr. 72-80). On October 16, 2015, ALJ McKay found that Plaintiff was not disabled as of the date last insured (“DLI”) for DIB of September 30, 2005 (Tr. 19-26). On September 11, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on November 8, 2016.


         Plaintiff, born May 29, 1954, was 51 on the DLI of September 30, 2005 (Tr. 26, 143). She completed two years of college and worked previously as a medical assistant and laboratory technician (Tr. 156). She alleges disability due to degenerative disc disease, spinal stenosis, sciatica, viral meningitis, migraine headaches, arthritis, Carpal Tunnel Syndrome (“CTS”), fibromyalgia, osteoporosis, Chronic Obstructive Pulmonary Disorder (“COPD”), sleep apnea, borderline diabetes, cataracts, glaucoma, hypertension, chest pain, depression, and anxiety (Tr. 155).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony as to her condition on or before September 30, 2005:

         In 2005, she lived with her husband and two children, 29 and 23 (Tr. 39). She stood 5'4" and weighed 200 pounds (Tr. 40). She lived in a one-story home with a basement and attached garage (Tr. 41). She seldom used the basement and did the laundry with her husband's help (Tr. 41). At the time of the alleged onset of disability, she was working as a medical assistant and lab technician (Tr. 41). Before that, she also worked as a secretary and restaurant hostess (Tr. 42). Prior to the May, 2005 onset of disability, she gradually reduced her working hours (Tr. 44). She attributed the scarcity of objective evidence prior to the DLI to the fact that she received diagnoses for a number of long-standing conditions well after September, 2005 (Tr. 48). She experienced repeated bouts of meningitis including one during the relevant period but had not experienced the condition since 2008 (48-49). Due to meningitis, she experienced memory loss, a shortened attention span, and headaches (Tr. 50). She also experienced arthritis of the neck (Tr. 51). She underwent physical therapy multiple times for degenerative disc disease (Tr. 52). As of 2005, she also experienced hypertension, high cholesterol, Gastroesophageal Reflux Disease (“GERD”), anxiety, and COPD (Tr. 53). She used an inhaler for COPD, and experienced chronic bronchitis and sleep apnea prior to the DLI (Tr. 53). During the relevant period, she took Prozac on a regular basis and Xanax on an as needed basis (Tr. 55). She was diagnosed with fibromyalgia by a rheumatologist in 2005 (Tr. 55).

         On an average day in 2005, she experienced mental fogginess but “pushed” herself along to remain functioning (Tr. 56). She experienced crying jags, indigestion, diarrhea, and pain (Tr. 57). During that period, she helped get her daughters ready in the morning before they left home to take college courses (Tr. 57). She was able to take care of her personal needs, albeit slowly and with pain (Tr. 58). She was able to walk short distances (Tr. 59). During the same period, Plaintiff's mother lived with the family, requiring Plaintiff to make and keep doctors' appointments (Tr. 59-60). She experienced the medication side effects of constipation, diarrhea, shortness of breath, dizziness, and fatigue (Tr. 61). She quit smoking in April, 2005 after experiencing double pneumonia (Tr. 61). She drank on only rare occasions (Tr. 61). In 2005, she was unable to sit for more than 15 minutes at a time or stand or walk for more than minimal periods (Tr. 63). She was unable to lift more than five pounds, bend, crawl, kneel, or crouch (Tr. 64). She experienced headaches and back, neck, and leg pain (Tr. 65). She was prescribed braces for CTS and experienced problems with fine manipulative activity (Tr. 66). She also experienced psoriasis and interrupted sleep (Tr. 68-69). As a result of fatigue, she was required to nap up to three times daily (Tr. 69). At the beginning of 2005, she worked up to three days every two weeks but as the year progressed, was unable to work more than one day every two weeks (Tr. 71).

         B. Medical Evidence

         1. Treating Sources[1]

         December, 1999 nerve conduction studies showed mild right-sided CTS (Tr. 617). March, 2004 records by Stuart Gildenberg, M.D. note the condition of angiofibroma (Tr. 303). Treating notes from the same month note that while Plaintiff had experienced “crying jags” her whole life, they had intensified recently (Tr. 588). An October, 2004 chest x-ray was unremarkable (Tr. 468). A March, EEG was within normal limits (Tr. 587). The same month, Plaintiff reported that she was “doing well” (Tr. 589). In April, 2005, Plaintiff was diagnosed with pneumonia after seeking emergency treatment for flu-like symptoms (Tr. 215-216). Habib G. Gennaoui, M.D. noted a history of hypertension, migraine headaches, GERD, and anxiety (Tr. 218). Imaging studies were consistent with COPD (Tr. 464). Plaintiff reported that she had not experienced meningitis symptoms for the past two years (Tr. 220). An EEG showed mild encephalopathy (Tr. 448). Plaintiff was discharged the following week (Tr. 224, 451). She did not experience problems breathing at the time of discharge (Tr. 224). She was instructed to stop smoking (Tr. 224). Plaintiff denied prior breathing problems (Tr. 227).

         June, 2005 imaging studies were negative for sinusitis but were consistent with moderately severe rhinitis (Tr. 268). In July, 2005, Plaintiff was admitted to the hospital for a recurrence of meningitis (Tr. 231). She was discharged three days later with directions for “activity as tolerated” (Tr. 236). Plaintiff exhibited full strength and normal cognitive abilities (Tr. 239). A ...

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