United States District Court, E.D. Michigan, Southern Division
Honorable Arthur J. Tarnow, Judge.
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT [11, 15]
R. Grand, United States Magistrate Judge.
Walter Kraft (“Kraft”) brings this action
pursuant to 42 U.S.C. §405(g), challenging the final
decision of Defendant Commissioner of Social Security
(“Commissioner”) denying his application for
Title II Social Security Disability Insurance Benefits
(“DIB”) and Title XVI Supplemental Security
Income (“SSI”) under the Social Security Act (the
“Act”). Both parties have filed summary judgment
motions [11, 15], which have been referred to this Court for
a Report and Recommendation pursuant to 28 U.S.C.
reasons set forth below, the Court finds that substantial
evidence supports the Administrative Law Judge's
(“ALJ”) conclusion that Kraft is not disabled
under the Act. Accordingly, the Court recommends that the
Commissioner's Motion for Summary Judgment  be
GRANTED, Kraft's Motion for Summary Judgment  be
DENIED, and that, pursuant to sentence four of 42 U.S.C.
§405(g), the ALJ's decision be AFFIRMED.
December 9, 2015, Kraft filed applications for DIB and SSI,
alleging a disability onset date of March 1, 2012. (Tr.
189-96). He later amended his alleged onset date to July 2,
2014. (Tr. 40). These applications were denied initially
on March 25, 2016. (Tr. 103-36). Kraft filed a timely request
for an administrative hearing, which was held on December 5,
2016, before ALJ Therese Tobin. (Tr. 32-62). Kraft, who was
represented by attorney Nicole Thompson, testified at the
hearing, as did vocational expert Elizabeth Pasikowski.
(Id.). On May 24, 2017, the ALJ issued a written
decision finding that Kraft is not disabled. (Tr. 15-27). On
February 27, 2018, the Appeals Council denied review. (Tr.
1-5). Kraft timely filed for judicial review of the final
decision on April 27, 2018. (Doc. #1).
Framework for Disability Determinations
the Act, SSI and DIB are available only to those who have a
“disability.” See Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007). The Act defines
“disability” as the:
inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.
42 U.S.C. §1382c(a)(3)(A) and 42 U.S.C.
§423(d)(1)(A). The Commissioner's regulations
provide that a disability is to be determined through the
application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial
gainful activity, benefits are denied without further
Step Two: If the claimant does not have a severe impairment
or combination of impairments that “significantly
limits . . . physical or mental ability to do basic work
activities, ” benefits are denied without further
Step Three: If the claimant is not performing substantial
gainful activity, has a severe impairment that is expected to
last for at least twelve months, and the severe impairment
meets or equals one of the impairments listed in the
regulations, the claimant is conclusively presumed to be
disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past
relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or
her past relevant work, if other work exists in the national
economy that the claimant can perform, in view of his or her
age, education, and work experience, benefits are denied.
Scheuneman v. Comm'r of Soc. Sec., 2011 WL
6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R.
§404.1520); see also Heston v. Comm'r of Soc.
Sec., 245 F.3d 528, 534 (6th Cir. 2001). “The
burden of proof is on the claimant throughout the first four
steps …. If the analysis reaches the fifth step
without a finding that claimant is not disabled, the burden
transfers to the [defendant].” Preslar v. Sec'y
of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Kraft's Reports and Testimony
time of the administrative hearing, Kraft was 47 years old,
and at 5'11” tall, weighed 252-254 pounds. (Tr.
40-41). He lived in a home with his fiancée with her
three children, as well as his five year old son. (Tr. 41,
45). Kraft completed tenth grade. (Tr. 45). Previously, he
worked as a truck driver, repair person, and auto mechanic.
(Tr. 36). Kraft has not worked since March 1, 2012. (Tr.
alleges disability as a result of arthritic back and knee
pain, recurrent abscesses, HIV, syphilis, depression, and
diabetes. (Tr. 236). Kraft testified that he can stand for
five minutes, and sit for ten to fifteen minutes before he
needs to stand up and move around. (Tr. 50). He is able to
drive, but not for long periods of time. (Tr. 42). He
testified that he is not able to perform household tasks such
as cooking because his back starts bothering him after
standing for 10-15 minutes. (Tr. 49). He also needs help with
bathing, dressing himself, clipping his toenails, and other
personal care. (Tr. 48). He cannot bend, squat, or crawl
without needing help getting back up, and cannot climb more
than one or two stairs. (Tr. 50). He does not have difficulty
reaching in front of him, but does have difficulty reaching
overhead. (Tr. 50-51.) He does not have problems using his
hands or fingers, nor does he have memory problems. (Tr. 51.)
Kraft testified that the only way he can spend time with his
five year old son is to sit, watch tv, or hold his son. (Tr.
51). He further testified that he spends 75% of the day in
bed or lying down, experiences nausea which he treats with
marijuana, and only sleeps a few hours at a time overnight.
has been diagnosed with cervical, thoracic, and lumbar
degenerative disc disease, an HIV infection, osteoarthritis
of both knees, diabetes, syphilis, peripheral neuropathy,
peptic ulcers, osteoarthritis of the back, and abscesses.
neck and back pain originated as early as April 2013, when he
presented to Henry Ford Wyandotte Hospital with pain and was
admitted for several days. (Tr. 282, 311). An MRI showed mild
to moderate stenosis L2-L3, degenerative changes, modic
changes, and spondylosis.(Tr. 307, 309). At Henry Ford Wyandotte,
he received joint injections with blocks for pain and showed
improvement. (Tr. 305). At a follow-up appointment, he
reported his pain “is getting better.” (Tr. 584).
Also in 2013, he was diagnosed with syphilis and HIV. (Tr.
January 2015, he presented to the emergency department at
Henry Ford Hospital complaining of a gluteal abscess. (Tr.
333). He was admitted due to his diabetic history,
cellulitis, and sepsis. (Tr. 337-38). Afterward, he reported
to a physician at a follow-up appointment that he was
“fine and doing ok.” (Tr. 519).
presented to Henry Ford Hospital again in June 2015 for right
middle finger pain due to an abscess. (Tr. 356, 358). In
early August 2015, he underwent a study of his cervical
spine. (Tr. 553-55). The results showed that his residual
myelomalcia was “not significantly changed” since
an August 2013 study; his T2 hyperintensive cord signal at
¶ 3-C4 was “improved” since May 2013; and
his cervical and lumbar spine showed “improvement,
” “with only minimal progression of lumbar
degenerative change.” (Tr. 555).
August 2015, he presented to Oakwood Hospital with chest
pain. (Tr. 415). Evaluation showed “no evidence of
acute intrathoracic process. No thoracic aortic injury,
” and his CT evaluation “otherwise
unremarkable” and “normal aorta and nothing
acute.” (Tr. 428, 436). Days later, he presented to
Oakwood Heritage Hospital with reports of bilateral blurred
vision, which his provider found to be “most likely
related to his hyperglycemia.” (Tr. 460, 463). At his
follow up appointment, when given advice on diabetes
management, he “got angry and left the clinic without
examination.” (Tr. 531).
early September 2015, Kraft saw his doctor for routine HIV
follow-up care. (Tr. 531). He reported he was,
“[f]eeling well” and “100% compliant with
his antiretroviral medication.” (Tr. 532). His
assessment was: “HIV disease, stable immune function
and virologically suppressed, compliant with current
antiretroviral medication regimen.” (Tr. 533).
October 2015, he arrived at Henry Ford Hospital for treatment
for a gluteal abscess, and was admitted. (Tr. 360, 542, 549).
In regard to his HIV infection, he stated “he was
diagnosed about 4 year[s] ago and is compliant with his
medication. (Atripla).” (Tr. 549). After his abscess
procedure, he stated that he wished to leave the hospital