United States District Court, E.D. Michigan, Southern Division
CAROL A. MCCLURE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.
Carol A. McClure (“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 set forth below, I recommend that Defendant's
Motion for Summary Judgment be GRANTED [Docket #21] and that
Plaintiff's Motion for Summary Judgment be DENIED [Docket
December 10, 2013, Plaintiff filed an application for DIB,
alleging disability as of August 1, 2013 (Tr. 147). Upon
initial denial of the claim, Plaintiff requested an
administrative hearing, held on September 30, 2015 in Mount
Pleasant, Michigan (Tr. 31). Administrative Law Judge
(“ALJ”) Laura Chess presided. Plaintiff,
represented by attorney Randall Manseur, testified, as did
Vocational Expert (“VE”) Toni McFarlane (Tr.
38-63, 63-73). On November 27, 2015, ALJ Chess determined
that Plaintiff was capable of a significant range of
unskilled, exertionally sedentary work (Tr. 13-26). On
February 7, 2017, the Appeals Council declined to review the
administrative decision (Tr. 1-4). Plaintiff filed suit in
this Court on March 31, 2017.
born January 2, 1967, was 48 at the time of the
administrative decision (Tr. 26, 147). She completed
7th grade and worked previously as a care giver at
a home for the mentally handicapped, private care worker, and
cashier (Tr. 168). She alleges disability resulting from an
enlarged heart valve, lung problems, depression, and anxiety
offered the following testimony:
worked from January, 2007 to January, 2008 as a cashier (Tr.
38). She worked between 15 and 36 hours a week (Tr. 38). She
stood 5' 1" and weighed 214 pounds (Tr. 39). She
recently lost weight due to loss of appetite resulting from
depression (Tr. 40). She experienced leg soreness due to
obesity (Tr. 41). She had recently cut back her cigarette use
to less than a half pack a day (Tr. 42). She had been advised
that smoking affected the conditions of Chronic Obstructive
Pulmonary Disease (“COPD”) and chronic bronchitis
(Tr. 42). She experienced problems with smoking cessation
despite the use of nicotine patches (Tr. 42). Plaintiff
watched television but was unable to follow the storylines
due to both concentrational problems and the inability to sit
for extended periods (Tr. 43). She had three dogs but had not
walked them lately (Tr. 44). She rarely cooked and on those
occasions, made simple meals such as grilled cheese and
tomato soup (Tr. 44). Until around one year before the
hearing, she regularly had acquaintances in for coffee but
lately, felt “clos[ed] in” by the presence of
others (Tr. 45). She shopped as required but did “not
like to deal with people” and became “hateful and
mean” if an issue arose with the cashier (Tr. 45). She
would be capable of buying stamps at the post office so long
as there were not a lot of people around (Tr. 46). She
disliked being touched by even immediate family members (Tr.
symptoms of acid reflux were managed by medicine and drinking
milk (Tr. 46). She took medication for hypertension but when
her blood pressure was elevated (due to anxiety) she
experienced headaches and flushing (Tr. 47). She took
medication for anxiety and also used three separate inhalers
for respiratory problems (Tr. 47). She typically used an
inhaler after smoking cigarettes (Tr. 63). Before ceasing
work in August, 2013, she worked as a care giver for mentally
handicapped adults (Tr. 48). She quit after becoming
overwhelmed with the increasing job responsibilities (Tr.
48). Before quitting, she experienced two to three panic
attacks on each shift, each requiring 10 to 15-minute breaks
(Tr. 49). Her employers were aware of her panic attacks and
allowed her to take breaks (Tr. 50). She looked
unsuccessfully for work since quitting the care-giving
position (Tr. 50). At no point did she contact vocational
rehabilitation services (Tr. 62). Later, as symptoms of
anxiety increased, she declined to look for work due to her
aversion to being around others (Tr. 51).
she was currently unemployed, she experienced two or three
panic attacks each week (Tr. 51). The panic attacks were
characterized by shortness of breath, aversion to light, and
crying (Tr. 51). She had thoughts about hurting herself but
at those times called a crisis hotline (Tr. 52). She had
called the hotline two or three times in the past year (Tr.
52). Plaintiff's counsel requested that the record
reflect that since the start of the hearing, Plaintiff had
been “rocking back and forth” (Tr. 52).
then resumed her testimony:
terms of concentrational problems, Plaintiff experienced a
slowed response time to questions (Tr. 53).
At the request of Plaintiff, the ALJ then took a short
recess (Tr. 53).
then resumed her testimony:
concentrational problems were characterized by her inability
to remember telephone numbers (Tr. 54). She and her husband
shopped at night when fewer people were in the store (Tr.
54). She held a valid driver's license but did not like
to go out without her husband (Tr. 54). Her driving alone was
limited to trips to the pharmacy, short grocery shopping
trips, or making the 12-mile drive to her daughter's
house (Tr. 55).
three months before the hearing, Plaintiff developed foot
pain (Tr. 56). She was unable to sit or stand for more than
20 minutes at a time (Tr. 56). Due to leg pain and hip
numbness, she was unable to walk for more than 60 steps
without requiring a break (Tr. 57). She stayed inside during
humid weather due to breathing problems (Tr. 57). She
experienced night-time sleep disturbances as a result of
racing thoughts (Tr. 58). She was able to to perform kitchen
and household chores for around 10 minutes before requiring a
break due to leg pain and breathing problems (Tr. 58). She
was unable to lift her 30-pound grandson (Tr. 60).
typical day Plaintiff made coffee, sat down, used a computer
tablet, turned on the television to watch the news, and did
dishes before going back to bed until noon (Tr. 60). She then
swept the floors, did other household chores, and did a load
of laundry (Tr. 61). She spent the rest of the day playing
games on her ...