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Baxter v. Commissioner of Social Security

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

May 31, 2018

SHERRY BAXTER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Matthew F. Leitman District Judge

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 DENIED.

         PROCEDURAL HISTORY

         On 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.

         BACKGROUND FACTS

         Plaintiff, 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).

         A. Plaintiff's Testimony

         Plaintiff 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 (Tr. 32).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         On a 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).

         B. Medical Evidence

         1. Treating Sources[1]

         On July 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).

         A 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).

         In 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. 382, 413).

         In 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, ...


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