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Cohoon v. Commissioner of Social Security

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

February 28, 2019


          LAURIE J. MICHELSON Judge


          HON. R. STEVEN WHALEN U.S. Magistrate Judge

         Plaintiff Wendy Kay Cohoon (“Plaintiff”) brings this action under 42 U.S.C. § 405(g) challenging a final decision of Defendant Commissioner (“Defendant”) denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. Both parties have filed summary judgment motions 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 Plaintiff's Motion for Summary Judgment [Docket #14] be GRANTED to the extent that the case be remanded to the administrative level for further proceedings, and that Defendant's Motion for Summary Judgment [Docket #21] be DENIED.


         On June 14, 2012, Plaintiff filed an application for DIB, alleging disability as of February 4, 2011 (Tr. 367). After the initial denial of the claim, Plaintiff filed a request for an administrative hearing, held on January 24, 2014 (Tr. 121-139). Following a February 7, 2014 unfavorable determination by the Administrative Law Judge (“ALJ”) then assigned to Plaintiff's claim, on June 17, 2015, the Appeals Council remanded the case for rehearing (Tr. 173-176). Following a second hearing on September 28, 2015, on November 17, 2015, the ALJ again found that Plaintiff was not disabled (Tr. 84-120, 205). On September 13, 2016, the Appeals Council again remanded the case for rehearing, this time assigning the case to a different ALJ (Tr. 204-206).

         On March 22, 2017 in Flint, Michigan, ALJ Kevin W. Fallis conducted a third administrative hearing (Tr. 37). Plaintiff, represented by attorney Rita Shoka, testified (Tr. 46-69), as did Vocational Expert (“VE”) Jacquelyn D. Schabacker (Tr. 20, 69-80). On August 1, 2017, ALJ Fallis found Plaintiff was not disabled on or before the date last insured for DIB benefits of December 31, 2016 (Tr. 11-27). On January 12, 2018, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision in this Court on March 15, 2018.


         Plaintiff, born October 24, 1964, was 52 on the date last insured for DIB of December 31, 2016 (Tr. 27, 367). She obtained a GED and worked previously as a mail carrier (Tr. 410). She alleges disability due to neck and shoulder injuries sustained in a car accident (Tr. 409).

         A. Plaintiff's Testimony (March 22, 2017 Hearing)

         Plaintiff offered the following testimony:

         She lived in Swartz Creek, Michigan with her husband and brother (Tr. 47). Her husband worked but her brother was disabled as a result of bipolar disorder (Tr. 47-48). She did not participate in her brother's care (Tr. 48). Plaintiff was right-handed and weighed 194 pounds (Tr. 49). Her exercise was limited to some physical therapy-type shoulder exercises (Tr. 50). She drove on an as-needed basis but did not drive more than once a month (Tr. 50). She was unable to drive for more than 15 minutes before requiring a position change (Tr. 51).

         Plaintiff had not worked since February, 2011 (Tr. 51). She sustained injuries in a car accident in June, 2010 (Tr. 51). Between June, 2010 and February, 2011, she became increasingly challenged by the physical demands of her job (Tr. 51-52). Plaintiff experienced the medication side effects of lightheadedness and slight nausea (Tr. 53). Since the last hearing, she had experienced significant muscle loss in the upper extremities (Tr. 54). For the entire period under consideration, she experienced pain in the lower part of her skull, neck, ears, shoulders, hips, knees, both sides of the spine, and middle and lower back (Tr. 54). She was limited to lifting under 10 pounds on an isolated basis (Tr. 55). She was unable to sit for more than 15 minutes or walk for more than 100 feet (Tr. 55). She was unable to stand without leaning on something for support (Tr. 55). She experienced occasional numbness of the ring and pinky fingers (Tr. 56). She relied on her husband to perform all of the household chores but was generally able to care for her own personal needs (Tr. 56).

         Plaintiff and her husband had gone camping for two days the previous summer, sleeping in a trailer (Tr. 57). They had been scheduled for a seven-day trip but Plaintiff stayed only two nights due to discomfort (Tr. 57). In contrast, Plaintiff and her husband vacationed “constantly” prior to the 2010 car accident (Tr. 58). Since then, Plaintiff spent her time watching television and playing games on her cell phone (Tr. 58). While watching television, she frequently had to rerun the movie or program to understand the plot or dialogue (Tr. 58). She also had “trouble with words” to the extent that she would forget what she was going to say in mid-speech (Tr. 58). She attributed the concentrational problems to medication side effects but noted that her ability to focus had deteriorated in the year before the hearing (Tr. 59). She and husband dined out on rare occasions (Tr. 60). She slept six hours a night and since starting a new medicine was able to sleep without interruption (Tr. 61). She tried to avoid daytime naps but sometimes fell asleep in a recliner (Tr. 62). When taking muscle relaxers she slept on and off “all day” (Tr. 61). She smoked up to 12 cigarettes a day but consumed alcohol rarely (Tr. 62). She attributed a September, 2016 positive urine test for marijuana to second-hand smoke resulting from her brother's therapeutic use of marijuana (Tr. 63). She noted that she stopped treatment with her former treating neurologist Dr. Jennings the same month because she found a closer health care provider (Tr. 63). On a scale of one to ten, the pain medication reduced her pain from “ten” to “four” (Tr. 64).

         Plaintiff experienced agonizing headaches at least once a week lasting from one to four days (Tr. 64). She coped with the headaches with pain medication, ice packs, and reclining (Tr. 65). She also experienced constant, unreasonable worry that something would happen to her grandchildren (Tr. 66). The condition of diabetes was not controlled (Tr. 66). She also experienced heart palpitations (Tr. 66). Due to hand numbness, Plaintiff sometimes dropped items (Tr. 67). For ease of dressing, she wore mostly “baggy” clothes and pull-overs (Tr. 67). She experienced more pain in the right shoulder than in the left (Tr. 67). She experienced difficulty reaching forward and was unable to reach overhead with the right arm (Tr. 68). She experienced difficulty climbing stairs due to hip and knee problems (Tr. 68).

         Plaintiff finished her testimony by noting that after the June, 2010 accident, she opted to go back to work, despite extreme pain, before giving up in February, 2011 (Tr. 69).

         B. Medical Evidence[1]

         1. Records Related to Plaintiff's Treatment

         In June, 2010, Plaintiff sought emergency room treatment for left shoulder and rib pain following a car accident (Tr. 701). In June, 2010, John Stoker, D.O. found that Plaintiff was unable to work between June 18 to June 26, 2010 (Tr. 898). In August, 2010, Dr. Stoker noted that an MRI of the cervical spine showed multilevel disc herniation (Tr. 526-527, 532, 602, 913). He prescribed physical therapy (Tr. 801). October, 2010 EMG testing of the upper extremities was normal (Tr. 528, 747). December, 2010 records by Mazher Hussain, M.D. note symptoms of cervical degenerative disc disease and facet arthropathy (Tr. 537-538). Physical therapy notes from the same month note a stiff neck and antalgic gait (Tr. 536). Plaintiff reported up to level “ten” pain but denied radiating pain in the upper extremities (Tr. 537). The following month, Plaintiff commenced a series of nerve blocks (Tr. 749-754).

         January, 2011 records by neurologist Henry Hagenstein, D.O. note Plaintiff's report of continual pain (Tr. 542, 740). February, 2011 physical therapy records note level “eight” pain with activity (Tr. 546, 758). Dr. Stoker found that Plaintiff was unable to work between February 4, 2011 and May 31, 2011 due to left shoulder tendinitis and cervical myosotis (Tr. 812, 828). April, 2011 physical therapy records note pain and tenderness of the left shoulder, stiff neck, antalgic gait, and reports of level “seven” pain with activity (Tr. 548). Dr. Stoker's records from the same month note continued neck pain, muscle spasms, and radiating pain in the upper extremities (Tr. 803). Plaintiff denied paralysis and exhibited a normal range of motion (Tr. 803-804). A July, 2011 CT of the left shoulder showed irregularity of the anterior cortex of the humeral head, cystic changes, sclerosis, and “loose bodies” of the joint (Tr. 551-552, 606, 912). An MRI of the shoulder from the same month showed a tear of the anterior supraspinatus tendon (Tr. 550, 610). The same month, A. George Dass, M.D. recommended non-surgical treatment for the left shoulder condition (Tr. 900). He observed full strength and a normal gait (Tr. 901).

         In September, 2011, Nadine S. Jennings, M.D. noted Plaintiff's report of “almost [] immediate onset” of severe neck pain following the June, 2010 car accident (Tr. 555). Dr. Jennings noted full strength in the upper extremities but a limited range of neck motion and signs of cervical disc herniation and adhesive capsulitis of both shoulders (Tr. 556, 596, 600). Plaintiff reported “satisfactory pain control” with Naproxen, Neurontin, Flexeril, and Percocet (Tr. 557). A September, 2011 MRI of the lumbar spine showed a herniated disc with cord deformity at ¶ 5-C6 (Tr. 558, 597). Dr. Stoker's October, 2011 records show a normal gait and station but a decreased range of motion of the left upper extremity (Tr. 511). Dr. Stoker's November, 2011 records note that Plaintiff reported “constant aching neck pain, ” right hand numbness, and no improvement in her pain level with Percocet (Tr. 560). Imaging studies of the spine from the same month show moderate spondylosis at ¶ 5, C6, and C7 (Tr. 595). After undergoing a series of epidural injections, an anterior cervical discectomy was recommended (Tr. 593, 1184, 1186). On December 7, 2011, a complete radical anterior cervical discectomy was performed at ¶ 5-C6 (Tr. 579, 936-937).

         A January, 2012 MRI of the cervical spine showed post fusion mild cord effacement at ¶ 4-C5 and mild cord effacement with mild to moderate stenosis at ¶ 5-C6 (Tr. 561, 570-571, 1239-1240). The following month, Plaintiff reported continued, significant neck and shoulder pain with spasms of the cervical and thoracic spine (Tr. 567, 1150). The same month, Dr. Jennings noted radiculopathy of the upper extremities and shoulder (Tr. 564). She diagnosed Plaintiff with cervical post-laminectomy syndrome and adhesive capsulitis of both shoulders (Tr. 564). She re-prescribed Neurontin (Tr. 564). The same month, Dr. Stoker noted a decreased range of left shoulder motion and muscle spasms of the spine (Tr. 1236). Physical therapy records from the following month note stooped posture with an antalgic gait (Tr. 1192).

         Dr. Jennings' records include April, 2012 EEG studies showing no evidence of cervical radiculopathy but “very mild” right median neuropathy of the wrist consistent with Carpal Tunnel Syndrome (“CTS”) (Tr. 1277). In May, 2012, Dr. Jennings noted that Plaintiff was independent in self care activities and had increased “household activity level” without discomfort (Tr. 1270). Plaintiff demonstrated full muscle strength in all groups (Tr. 1268). The same month, Dr. Stoker found that Plaintiff was unable to return to her former job due to the shoulder and cervical spine conditions resulting from the June, 2010 accident (Tr. 1210). His treatment records from the same month note tenderness and a decreased range of cervical spine motion (Tr. 1218). The following month, he found that Plaintiff was incapacitated from June 25, 2012 to September 1, 2012 (Tr. 1215).

         A June, 2012 nerve block was administered without complications (Tr. 1262). Plaintiff reported decreased pain two days after the injection (Tr. 1253, 1261). Dr. Jennings' records from the end of the same month note that Plaintiff was “careful and slow” but independent in activities of daily living (Tr. 1250). Dr. Jennings' records from the following month note that Plaintiff's improvement had started to “plateau” and that she was restricted in daily activities (Tr. 1244). The same month, Dr. Stoker noted fair prognosis (Tr. 1281). Dr. Jennings' September, 2012 records note Plaintiff's report of level “ten” pain without medication and “three” with (Tr. 1286). Plaintiff reported pain with sitting, standing, walking, social activity, lifting, and in personal care activity (Tr. 1286). She denied improvement from injections (Tr. 1286). An October, 2012 examination by Dr. Stoker showed 5/5 motor strength and a normal station and gait (Tr. 514). Plaintiff demonstrated a normal range of upper extremity motion (Tr. 514). Dr. Stoker noted that Plaintiff had made no recent progress and still had only a “fair” prognosis (Tr. 1408). An April, 2013 MRI of the cervical spine showed a herniated disc at ¶ 5-C6 with mild cord effacement (Tr. 1389). November, 2013 records by Dr. Stoker note Plaintiff's report of continuing neck pain (Tr. 1472).

         April, 2015 records note a normal gait with a moderately reduced range of cervical spine and left shoulder motion with muscle spasms and mild pain (Tr. 1421). The same month, Plaintiff reported continued muscle weakness and neck pain (Tr. 1513). An MRI of the cervical spine from the same month showed a small disc protrusion at ¶ 3-C4 with mild cord effacement (Tr. 1455, 1647).

         In July, 2015, Dr. Jennings completed a Physical Residual Functional Capacity Questionnaire, noting a diagnosis of cervical post-laminectomy syndrome (Tr. 1519, 1661). She noted the symptoms of neck pain and headaches (Tr. 1519). She found that pain would interrupt Plaintiff's work frequently but that Plaintiff was capable of low stress jobs (Tr. 1520). She found that Plaintiff was unable to sit for more than 30 minutes at a time or stand for more than 15 (Tr. 1520). She found that Plaintiff was limiting to sitting four hours a day and standing/walking for two (Tr. 1520). She found the need for a sit/stand option (Tr. 1521). She found that Plaintiff was limited to lifting less than 10 pounds, and turning her head on an occasional basis (Tr. 1521). She precluded all use of ladders and limited Plaintiff to “rare” twisting, stooping, crouching, and occasional climbing of stairs (Tr. 1522). She found that Plaintiff was limited to performing fine manipulative tasks for 50 percent of the workday and reaching for ...

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