United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER
R. STEVEN WHALEN U.S. MAGISTRATE JUDGE
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.
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.
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).
offered the following testimony as to her condition on or
before September 30, 2005:
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).
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).
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).
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 ...