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Lonc v. Commissioner of Social Security

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

February 28, 2019

KERRI LYNN LONC, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          District Judge Matthew F. Leitman

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Kerri Lynn Lonc (“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 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 #12] be GRANTED and that Plaintiff's Motion for Summary Judgment [Docket #11] be DENIED.

         PROCEDURAL HISTORY

         On February 4, 2015, Plaintiff applied for DIB, alleging disability as of December 13, 2011 (Tr. 157). After the initial denial of her claim, Plaintiff requested an administrative hearing, held on October 3, 2016 in Livonia, Michigan (Tr. 29). Administrative Law Judge (“ALJ”) Mary S. Connolly presided. Plaintiff, represented by attorney Gerald Skupin, testified (Tr. 33-46), as did Vocational Expert (“VE”) Larissa A. Boase (Tr. 16, 47-49). On November 16, 2016, ALJ Connolly found Plaintiff not disabled (Tr. 16-24). On December 15, 2017, the Appeals Council denied review (Tr. 1-3). Plaintiff filed the present action on February 13, 2018.

         BACKGROUND FACTS

         Plaintiff, born October 26, 1968, was 48 at the time of the administrative decision (Tr. 24, 157). She graduated from high school and worked previously as a secretary and stocker (Tr. 186). She alleges disability as a result of left shoulder problems (Tr. 185).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

She lived in Livonia, Michigan with her husband and two children (Tr. 33-35). She sustained a workplace shoulder injury on December 13, 2011 and settled a case against her employer for $30, 000 (Tr. 34). In 2012 through 2014, she worked “on and off” as a greeter at JCPenney (Tr. 34). She worked for around 20 hours a week (Tr. 35). She attempted unsuccessfully to work as a cashier (Tr. 34). She was able to drive (Tr. 35).

         In response to questioning by her attorney, Plaintiff reported that she was unable to work as a cashier due to her inability to use her left arm to bag purchases (Tr. 35). She was also unable to hold her arm up long enough to use a computer (Tr. 35). While working as a greeter, she held her left arm at her side or in a pocket (Tr. 36). When not at work, she propped her left arm up with a pillow and alternatively applied ice and heat to her shoulder up to five times a day (Tr. 36). The shoulder pain radiated to her neck and down her back (Tr. 36). She was unable to exercise her shoulder for more than a minute due to pain (Tr. 37).

         Plaintiff had undergone around 140 physical therapy sessions before her most recent surgery (Tr. 37). The therapy helped to avoid shoulder stiffness (Tr. 37). Wearing a sling increased her muscle stiffness (Tr. 38). She stopped therapy after failing to experience further improvement (Tr. 38). In 2016, she scheduled a consultation with Dr. Carpenter to see if she could increase her shoulder mobility (Tr. 39). Dr. Carpenter advised her to “let it go for another year” and avoid physical therapy and shoulder exercises (Tr. 39-40).

         Due to the shoulder pain, Plaintiff experienced sleep disturbances and daytime drowsiness (Tr. 40). She was unable to use a blow dryer, fold clothes, or get dishes out of the cupboard (Tr. 40). The shoulder condition caused neck and mid-back pain (Tr. 41). She experienced back discomfort from standing and walking (Tr. 42). She experienced diabetes but the condition was well managed (Tr. 42). She had also been diagnosed with a generalized anxiety disorder in March, 2016 but had not received mental health treatment (Tr. 42). Her activities were not limited because of anxiety (Tr. 42-43).

         On a typical day, Plaintiff showered, sat, prepared breakfast, sat, and iced/heated the shoulder (Tr. 43). She took her daughter to the grocery store with her due to the inability to push a grocery cart (Tr. 43). The shoulder condition had worsened since the 2011 injury (Tr. 43). She participated in social media, communicated with others online, and was able to text (Tr. 44). She attended church twice a week but did not engage in other non-internet social activity (Tr. 44). She visiting her extended family “up north” on occasion (Tr. 45). She was unable to drive the entire distance but could make the trip as a passenger (Tr. 45). She did not experience cardiac issues (Tr. 46).

         B. Medical Evidence

         1. Records Related to Plaintiff's Treatment[1]

         February, 2011 records by Theresa Poppe, M.D. note Plaintiff's report of back problems but an unremarkable MRI of the lumbar spine (Tr. 729). In December, 2011, Plaintiff sought emergency treatment one day after feeling a “tear” of the left shoulder while lifting a box at work (Tr. 292). She showed a good range of shoulder motion (Tr. 285). February, 2012 records by Jeffrey E. Lawley, D.O. note that she was currently restricted to lifting 20 pounds with “avoidance of over-the-shoulder” work with the left hand (Tr. 289). He noted that an MRI of the left shoulder taken after the accident showed left rotator cuff tendinosis with a full thickness tear of the supraspinatus tendon (Tr. 287-289, 310, 456, 764). Plaintiff exhibited a limited ability to reach with the left upper extremity (Tr. 290).

         On March 5, 2012, Dr. Lawley performed an arthroscopic rotator cuff repair (Tr. 313-314, 318-319). June, 2012 physical therapy records note Plaintiff's history of back pain predating the December, 2011 injury by several years (Tr. 508). Plaintiff denied limitations in walking, driving, or in cognitive functioning (Tr. 509). In July, 2012, Plaintiff underwent a followup procedure for adhesive capsulitis (frozen shoulder) (Tr. 329, 331-332). Physical therapy records note a “good” rehabilitation potential (Tr. 581). Physical therapy records and Dr. Lawley's treating notes from the next month note Plaintiff's increased range of shoulder motion (Tr. 364, 538). Dr. Lawley directed her to continue performing physical therapy and daily home exercises (Tr. 364). He noted that Plaintiff could return to work “with temporary restrictions which include lifting no more than five pounds” on the left and a preclusion on “repetitive or excessive use of [the] left upper extremity” and “over-the-shoulder work with the left hand” (Tr. 364). Physical therapy records from later the same month note that Plaintiff returned to work with lifting restrictions (Tr. 546).

         At the end of August, 2012, Plaintiff stopped working due to pain but resumed work in the middle of September, 2012 (Tr. 554). Physical therapy records from November, 2012 note her report that she “overuse[d]” her shoulder (Tr. 572). She exhibited an improved ability to stretch (Tr. 572). In October, 2012, Jeffrey D. Shapiro, M.D. noted Plaintiff's complaints of continued pain but observed 5/5 strength in resistant maneuvers (Tr. 648). He issued an off work note (Tr. 648). In December, 2012, Dr. Shapiro performed an arthroscopic decompression procedure (Tr. 600, 608-612). A post-operative examination showed a normal range of shoulder motion (Tr. 615). He issued “off work” notes on December 17, 2012, January 21, 2013, March 4, 2013, and on April 15, 2013 (Tr. 644-647). January, 2013 physical therapy records note an increased range of motion (Tr. 807). April, 2013 physical therapy records note that Plaintiff was able to reach slowly overhead but was unable to lift objects overhead (Tr. 836). In May, 2013, Dr. Shapiro performed a surgical procedure to address the condition of adhesive capsilitis (Tr. 625, 633). Physical therapy notes from the same month note reports of level “two” or “three” pain on a one to ten scale (Tr. 945). In June through September, 2013, Dr. Shapiro limited Plaintiff to “one arm work only” (Tr. 641-643, 884). In September, 2013, Plaintiff reported that the shoulder was “stiff but better” (Tr. 895). In October, 2013, Dr. Shapiro noted that Plaintiff had made improvement in physical therapy but found that she should remain off work until “reevaluation in six weeks” (Tr. 640). Physical therapy records from the same month through January, 2014 note her report of level “two” or “three” pain with an occasional “four” (Tr. 901-920, 950, 952). In December, 2013, Dr. Shapiro found that Plaintiff should be off work “one additional month” while undergoing physical therapy (Tr. 639). On January 6, 2014, Dr. Shapiro found that Plaintiff should remain off work for the next six weeks (Tr. 638). He found that she should return for treatment “as necessary” (Tr. 638). March, 2015 physical therapy records note Plaintiff's report of level “three” through “five” pain (Tr. 1023, 1030). In May, 2015, Dr. Poppe referred Plaintiff for an orthopedic consultation (Tr. 1114). A May, 2015 MRI of the shoulder showed no rotator cuff tear but a tear through the base of the superior glenoid labrum (Tr. 1055). The same month, J. David Denzin, M.D. noted Plaintiff's report of a gradual increase in shoulder pain over the previous three months (Tr. 1056). He opined that athroscopic surgery for repair of ...


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