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Malm v. Commissioner of Social Security

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

July 11, 2018

Eva Malm, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          David R. Grand Magistrate Judge

          ORDER ADOPTING REPORT AND RECOMMENDATION [19]; OVERRULING PLAINTIFF'S OBJECTIONS [20]; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [14]; AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [18]

          Arthur J. Tarnow Senior United States District Judge

         Plaintiff Eva Malm seeks judicial review of the decision of an Administrative Law Judge (“ALJ”) denying her application for disability benefits. Plaintiff filed a Motion for Summary Judgment [Dkt. 14] on August 6, 2017. Defendant filed a Motion for Summary Judgment [18] on November 4, 2017.

         On March 23, 2018, the Magistrate Judge issued a Report and Recommendation (“R&R”) [19] recommending that the Court grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion for Summary Judgment. Plaintiff timely filed her Objections [20] on April 2, 2018.

         For the reasons stated below, the Court ADOPTS the Report and Recommendation [19]. Plaintiff's Objections to the Report and Recommendation [20] are OVERRULED. Plaintiff's Motion for Summary Judgment [14] is DENIED. Defendant's Motion for Summary Judgment [18] is GRANTED.

         Factual Background

         The R&R summarized the record as follows:

         A. Background

         Malm filed prior applications for DIB and SSI on March 9, 2011. (Tr. 78). On March 13, 2013, ALJ Andrew Henningfeld issued a decision denying those applications. (Tr. 78-87). On June 24, 2014, the Appeals Council denied review. (Tr. 92-96).

         Malm then filed new applications for DIB and SSI on August 11, 2014, alleging disability as of March 14, 2013. (Tr. 205-17). At the time of that alleged onset date, Malm was 47 years old. (Tr. 244). She had completed high school but had no further education. (Tr. 250). Malm has prior work history as a laborer and press operator, but she stopped working in January 2014 because of her medical conditions. (Tr. 249-50). She alleges disability as a result of diabetes (and resulting neuropathy), arthritis, fibromyalgia, and left ankle pain. (Tr. 249).

         After Malm's August 2014 applications for SSI and DIB were denied at the initial level on September 9, 2014 (Tr. 126-29, 136-39), she timely requested an administrative hearing, which was held on November 12, 2015, before ALJ Terry Banks. (Tr. 36-74). Malm, who was represented by attorney Nicole Thompson, testified at that hearing, along with vocational expert Joseph Thompson. (Id.). On March 7, 2016, ALJ Banks issued a partially favorable written decision. (Tr. 16-31). Specifically, ALJ Banks concluded that Malm was not disabled prior to January 11, 2016; however, she became disabled as of that date and continued to be disabled through the date of the decision. (Tr. 30). On February 22, 2017, the Appeals Council denied review. (Tr. 1-5). Malm timely filed for judicial review of the final decision on April 20, 2017. (Doc. #1).

         B. Relevant Medical Evidence[1]

         On May 17, 2013, Malm was seen by Toms Mathew, M.D. for diabetes, arthralgia, and paresthesia. (Tr. 313). An examination of the upper extremities revealed arthritic changes in the DIP joint (finger), but no other abnormalities. (Tr. 314). She retained full strength, bulk, and tone in both upper extremities, and both hands were non-tender without crepitus or defects. (Id.). At a follow-up visit to Dr. Mathew on July 29, 2013, examination results remained the same, aside from diminished sensation in her hands. (Tr. 325-26). Dr. Mathew saw Malm on at least eleven more occasions between October 2013 and September 2015; at each of these visits, there were no positive examination findings related to her hands or fingers. (Tr. 329, 339, 345, 350, 491, 497, 501, 505, 509, 513, 524).

         Beginning in February 2014, Malm was seen by Zeinab Saleh, M.D., with complaints of musculoskeletal pain. (Tr. 353-65). She complained of swelling and tingling in her hands, but noted that she had been taking Tylenol #3 with some relief. (Tr. 353). On examination, Malm had no swelling in her elbows, wrists, or finger joints. (Tr. 354). Her hand grip strength was 4/5, and there was no sign of synovitis. (Id.). On March 6, 2014, Malm reported that she had been stable, and a physical examination of her hands remained unchanged. (Tr. 360-61). Dr. Saleh prescribed Neurontin and Tramadol. (Tr. 362). On August 1, 2014, Malm reported that she had stopped taking this medication after one month and was taking Tylenol #3 instead. (Tr. 363). On examination, her hand grip strength remained 4/5, muscle strength and sensation remained intact, and she was again started on Neurontin. (Tr. 364-65).

         Malm was in a car accident in November 2014, after which she began treating with Judy Macy, M.D., a physical medicine and rehabilitation specialist. (Tr. 480-81). On December 3, 2014, Malm reported pain in her neck and upper back; difficulty moving her cervical spine, upper back, and lower back; and numbness and tingling in her hands and feet. (Id.). She was diagnosed with cervical and thoracic spine injuries, and Dr. Macy issued a note saying she was unable to work in the factory job she had recently started and needed help with household replacement services. (Id.). In both December 2014 and January 2015, Malm saw Dr. Macy with continued complaints of pain in her neck and back, but no complaints related to her hands. (Tr. 474, 479). On both occasions, Dr. Macy again noted that Malm was unable to work. (Id.).

         On February 10, 2015, Malm returned to Dr. Macy, reporting that she had a great deal of pain in her neck and spine, which radiated into her extremities (right more than left). (Tr. 475). Noting that Malm's neck and right upper extremity seemed to hurt her the most, Dr. Macy ordered an EMG. (Id.). At her next visit, on February 24, 2015, Malm had pain in the back of her neck radiating to both arms and right shoulder, with numbness and tingling in the arms. (Tr. 469). Along with problems moving both shoulders, Malm also had “atrophy of the right opponens pollicis muscle more so than the left.” (Id.). According to Dr. Macy, EMG testing of the bilateral upper extremities revealed “[v]ery severe right carpal tunnel syndrome with absence of the right median sensory distal latency and evidence of axonal loss in the right opponens pollicis muscle and a large in the right median motor distal latency”; moderate left carpal tunnel syndrome; and “evidence of bilateral cervical radiculopathy… mostly in the left C6 distribution, but also affecting the right upper extremity as well and approximately in the right C6 distribution.” (Tr. 470).

         On March 10, 2015, Malm continued to report pain in her neck, mid-back, and lower back, as well as her right shoulder. (Tr. 471). There were no complaints related to her hands. (Id.). Dr. Macy ...


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