United States District Court, E.D. Michigan, Southern Division
Matthew F. Leitman District Judge
REPORT AND RECOMMENDATION
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.
Sherry Baxter (“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 Title II of the
Social Security Act. The parties have filed cross-motions for
summary judgment which have been referred for a Report and
Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For
the reasons discussed below, I recommend that Defendant's
Motion for Summary Judgment [Docket #26] be GRANTED, and that
Plaintiff's Motion for Summary Judgment [Docket #22] be
April 22, 2014, Plaintiff applied for DIB, alleging
disability as of September 1, 2004 (Tr. 127). Following the
initial denial of benefits, Plaintiff requested an
administrative hearing, held on July 10, 2015 in Baltimore,
Maryland (Tr. 25). Laureen Penn, Administrative Law Judge
(“ALJ”) presided. Plaintiff, represented by
attorney Robert Soto, testified by teleconference from
Toledo, Ohio (Tr. 11, 29-44). Vocational Expert
(“VE”) Mr. Reyes also testified (Tr. 45-49). On
August 10, 2015, ALJ Penn found Plaintiff not disabled as of
the date last insured (“DLI”) for DIB of December
31, 2010 (Tr. 11-20). On August 11, 2016, the Appeals Council
denied review (Tr. 1-3). Plaintiff filed suit in this Court
on October 14, 2016.
born August 4, 1960, was 50 when her entitlement to DIB
expired on December 31, 2010 (Tr. 20, 127). She completed
12th grade and worked previously as a customer
service representative, distribution clerk, janitorial
worker, and mail carrier (Tr. 164). She alleges the onset of
disability prior to December 31, 2010 as a result of joint
replacements in both feet and back pain (Tr. 163).
offered the following testimony: She lived in Temperance,
Michigan with her husband (Tr. 29). She was able to read,
write, and manage her own finances (Tr. 29). She stopped
working in 2004, before which time she worked part time as a
clerk for the post office (Tr. 30). Earlier in her career,
she worked as a postal carrier, but switched positions due to
hand numbness resulting from Raynaud's disease (Tr. 31).
During her stint at the post office, she took a leave of
absence due to Carpal Tunnel Syndrome (“CTS”)
(Tr. 33). Her former work also included work at a craft store
was unable to work due to joint problems including knee and
hand pain and swelling (Tr. 33). She currently used a pain
patch for back and shoulder pain and Neurontin for nerve pain
(Tr. 33). She also used Percocet “as needed” (Tr.
34). She attributed her lower back pain to a 2004 car
accident (Tr. 34, 36). The back was variously “burning,
” “sharp, ” and “sore and achy”
(Tr. 37). The back pain was exacerbated by sitting for long
periods, walking, bending, and lifting (Tr. 37). She
experienced some degree of relief from changing positions
(Tr. 37). On a scale of one to ten, her back pain ranged from
a “three or four” to a “seven” (Tr.
37). She was terminated by the post office 10 days after
undergoing January, 2006 back surgery (Tr. 34).
underwent seven foot surgeries (Tr. 34) and Carpal Tunnel
release surgery in both hands (Tr. 35). She experienced
regular foot pain and numbness (Tr. 38). She experienced
intermittent hand pain, noting that the hand condition waxed
and waned with the temperature and humidity changes changes
(Tr. 38). She also experienced neck pain due to the car
accident (Tr. 36).
was able to dress herself, make the bed, and do some
vacuuming (Tr. 39). She was able to walk for up to an hour
without discomfort (Tr. 39). She was able to sit for up to
two hours but required position changes at least every 30
minutes (Tr. 40). She was able to perform limited stooping,
kneeling, and crouching (Tr. 40). She was able to lift up to
20 pounds (Tr. 40). She experienced problems bending and
gripping (Tr. 41). Her physical problems affected her mental
health but she was reluctant to pay for psychological
treatment (Tr. 41-42). At present, she saw a family doctor as
well as pain, orthopedic, hand, skin, and rheumatological
specialists (Tr. 42).
typical day, she arose at 9:00 a.m., watched television, took
a shower, ran errands, took care of her granddaughter,
“scrap booked, ” and performed household and
laundry chores (Tr. 42). Since ceasing work in 2004, she had
attempted to find work, but noted that the jobs she applied
for required her to lift up to 40 pounds (Tr. 43).
30, 2004, Plaintiff sought emergency treatment for neck,
back, and left shoulder pain following a car accident (Tr.
227). Imaging studies of the lumbar spine were unremarkable
(Tr. 228). An MRI of the cervical spine shows mild narrowing
at ¶ 4-C5 and mild compression at ¶ 6-C7 (Tr. 252).
Physical therapy records for the next month show
“fair” progress (Tr. 242). Physical therapist Amy
C. Morris noted “fair” prognosis (Tr. 248). A
September, 2004 CT of the brain was unremarkable for either
brain or cervical spine abnormalities (Tr. 225). Neurological
surgeon Patrick W. McCormick, M.D. noted full strength in all
extremities (Tr. 373).
February, 2005 MRI of the lumbar spine showed a small annular
tear at ¶ 4-L5 and mild disc space narrowing at ¶
5-S1 (Tr. 253). Gregory M. Thomas, M.D. stated that he was
“not very optimistic” about Plaintiff returning
to work (Tr. 275-276, 1021-1022). He noted that Plaintiff was
“far from being able to meet her job requirements at
the post office” (Tr. 275, 1021). Plaintiff underwent
an epidural injection in April, 2005 (Tr. 280, 282).
Plaintiff reported level “six” to
“nine” out of ten pain and difficulty climbing
stairs and sitting for prolonged periods (Tr. 282). In June,
2005, Dr. Thomas found that Plaintiff was limited to lifting
five pounds infrequently and standing and/or walking
occasionally (Tr. 277). He found that Plaintiff could sit
constantly but was limited to infrequent bending and
crawling; occasional kneeling; frequent stair climbing; but
was precluded from all squatting (Tr. 277). He precluded
Plaintiff from all use of arm or leg controls (Tr. 277).
October, 2005 records note Plaintiff's report of
escalating back pain (Tr. 369). She demonstrated full
strength in all extremities (Tr. 369). In November, 2005,
Plaintiff underwent epidural injections (Tr. 250). A CT of
the lumbar spine from the same month showed only mild disc
bulges (Tr. 256, 283).
January, 2006, Plaintiff underwent a lumbar fusion at ¶
5-S1 (Tr. 301). She underwent followup physical therapy
between April and June, 2006 (Tr. 315-346). In May, 2006,
Plaintiff reported good results from the surgery (Tr. 359).
Imaging studies of the lumbar spine from the same month were
unremarkable (Tr. 1070, 1127). Dr. McCormick noted that
Plaintiff was capable of lifting 70 pounds occasionally and
40 to 50 repetitively (Tr. 359). An August, 2006 MRI of the
lumbar spine was unremarkable (Tr. 388, 415, 995). The same
month, John S. Carroll, D.P.M. noted that Plaintiff required
a metaphyseal osteotomy (Tr. 503). An EMG of the lower
extremities from the same month was consistent with
radiculopathy related to L3, L4, and L5 (Tr. 390, 417, 997).
In September, 2006, Dr. McCormick noted Plaintiff's
complaint of chronic left leg and foot discomfort (Tr. 356).
Clinical neurological testing and range of motion studies
were wholly normal (Tr. 356). Dr. McCormick noted that an EMG
suggested “an abnormality of the nerve” (Tr.
357). The same month, Ted E. Barber, M.D. noted
Plaintiff's report of lower extremity symptoms (Tr. 382,
1012-1015). He noted that a recent EMG showed “mild
radiculopathy changes involving L3, L4, and L5” (Tr.
January, 2007, Plaintiff reported continued back pain (Tr.
400). Plaintiff sought treatment for dermatitis in March,
2007 (Tr. 1010). In April, 2007, Patrick Schafer, M.D.
encouraged Plaintiff to apply for work for “at
least” the purpose of “exercising in terms of
walking on a daily basis” (Tr. 1820). Dr. Carroll's
June, 2007 records note good alignment after followup foot
surgery (Tr. 502). Plaintiff requested and received a
prescription for Vicodin (Tr. 502). In January, 2008, Dr.
Carroll prescribed an orthopedic shoe (Tr. 500). Dr.
Carroll's January and August, 2008 records also note good
alignment after a followup foot surgery (Tr. 498-500, 1006).
Dr. Carroll's March, 2008 records note that Plaintiff
could use regular shoes (Tr. 497). In December, ...