United States District Court, E.D. Michigan, Southern Division
J. MICHELSON Judge
REPORT AND RECOMMENDATION
R. STEVEN WHALEN U.S. Magistrate Judge
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.
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).
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.
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).
Plaintiff's Testimony (March 22, 2017 Hearing)
offered the following testimony:
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.
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).
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).
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).
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).
Records Related to Plaintiff's Treatment
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).
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).
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).
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
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).
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).
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).
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 ...