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McClure v. Commissioner of Social Security

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

June 13, 2018

CAROL A. MCCLURE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          F. Cox Judge Sean

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 #17].

         I. PROCEDURAL HISTORY

         On 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.

         II. BACKGROUND FACTS

         Plaintiff, 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 (Tr. 166).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         She 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. 46).

         Plaintiff's 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).

         Although 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).

         Plaintiff then resumed her testimony:

         In 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).

         Plaintiff then resumed her testimony:

         Her 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).

         In the 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).

         On a 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 ...


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