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Whitehead v. Commissioner of Social Security

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

July 30, 2019





         Plaintiff David F. Whitehead (“Plaintiff”) brings this action under 42 U.S.C. §405(g) challenging a final decision of Defendant Commissioner (“Defendant”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under 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 Defendant's Motion for Summary Judgment [Docket #16] be GRANTED and that Plaintiff's Motion for Summary Judgment [Docket #15] be DENIED.


         Plaintiff applied for DIB and SSI on January 12 and 31, 2016 respectively, alleging an onset of disability date of January 6, 2015[1] (Tr. 11, 177). After the initial denial of benefits, Plaintiff requested an administrative hearing, held on September 12, 2017 in Lansing, Michigan before Administrative Law Judge (“ALJ”) Christopher Ambrose (Tr. 24). Plaintiff, represented by attorney, Mark Farrell, testified (Tr. 30-108), as did Vocational Expert (“VE”) David E. Huntington (Tr. 109-113). On January 17, 2018, ALJ Ambrose found Plaintiff not disabled (Tr. 11-20). On June 25, 2018, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on August 20, 2019.


         Plaintiff, born August 8, 1975, was 42 when the ALJ issued his decision (Tr. 20, 177). He completed 11th grade and worked previously as a frozen food manager and truck driver (Tr. 202) He alleges disability as a result of a back injury and arthritis (Tr. 201).

         A. Plaintiff's Testimony

         Plaintiff offered the following testimony:

         Plaintiff had a daughter, 25 and son, 18 (Tr. 31). He was divorced and for the last six or seven years had lived in a trailer on his property (Tr. 33, 74). Since the onset of back problems, he made an unsuccessful four-day work attempt at a car wash (Tr. 34).

         His former work as food manager required him to lift up to 60 pounds (Tr. 38). His back problem dated back to the age of 20 (Tr. 40). Prior to undergoing lumbar spine fusion surgery in February, 2016, he coped with condition by using a back brace, taking pain medication, and undergoing steroid injections (Tr. 41-42, 48). He experienced long-term left leg numbness (Tr. 48). He quit the food manager job to drive a truck for a septic company in an attempt to put less strain on his back (Tr. 43). He later discovered the septic company job required lifting of up to 100 pounds (Tr. 44). He obtained a commercial driving licence for the trucking job (Tr. 44-45). He was unable to return to the trucking job after undergoing the back surgery in February, 2016 due to his inability to perform “light duty” work involving sitting on a tractor for two to six hours a day (Tr. 46, 56, 58). During the unsuccessful work attempt at the septic company, he began experiencing ankle problems (Tr. 47-48).

         Plaintiff was prescribed Percoset after undergoing the back surgery but did not become addicted to it (Tr. 51). He was able to read, write, and perform calculations (Tr. 59). He had been told by his surgeon that his condition would not improve until his back became bad enough to warrant another surgery (Tr. 63). He now experienced constant left-sided lower back pain with left lower extremity numbness (Tr. 63). He took Cymbalta for both pain and depression, Flexeril for his back, and arthritis medication (Tr. 71). At the time of the hearing, he had also experienced a recurrence of Irritable Bowel Syndrome (“IBS”), but his weight had remained stable (Tr. 73-74). He used food stamps to supplement his budget (Tr. 74).

         Plaintiff was unable to walk for more than 20 minutes at a time (Tr. 79). He was able to sit for a longer period provided that he was leaning against something but was unable to sit “straight up” for more than 15 minutes (Tr. 81). He took one nap a day but in addition, required up to two hours reclining time (Tr. 82). He was able to sleep well with the help of medication (Tr. 82). He experienced less “numbness and pain” since surgery (Tr. 83). He was unable to sit upright on a riding mower for the hour it took to mow his lawn (Tr. 84). He was able to keep up with his household chores and take care of his personal needs (Tr. 86). He did not smoke or drink (Tr. 87). He opined that he would be unable to perform sedentary work with a sit/stand “at will” option due to ankle pain caused by position changes (Tr. 87-89). He had recently been advised to undergo arthroscopic surgery of the ankle (Tr. 94). In response to questioning by his attorney, Plaintiff reiterated that his inability to work caused depression (Tr. 100). He was unable to hunt or fish (Tr. 103).

         B. Medical Evidence

         1. Records Relating to Plaintiff's Treatment

         September, 2015 records by Troy Davis, D.O. note Plaintiff's report of arthritis, joint pain, and joint stiffness (Tr. 234). Plaintiff demonstrated 5/5 strength in all muscle groups (Tr. 236). Dr. Davis noted “borderline radicular findings” in bilateral straight leg raising testing (Tr. 236). Plaintiff was prescribed Ultram (Tr. 239). Treating notes state that Plaintiff never filled a prescription for Flexeril (Tr. 239). The same month, an MRI of the lumbar spine showed a disc bulge at ¶ 4-L5 with a central annular fissure and at ¶ 5-S1, “pronounced degenerative disc disease” with a diffuse disc bulge and end plate spurring (Tr. 245-246). In December, 2015, neurologist Dennis C. Dafnis, M.D. noted Plaintiff's report of a 20-year history of back pain with cortisone injection treatment (Tr. 249). Plaintiff declined physical therapy due to out-of-pocket costs of $170 per visit (Tr. 249). He reported gait abnormality, pain, numbness, and weakness (Tr. 250). EMG testing of the lower extremities showed “advanced and multi-level L2 root irritation consistent with . . . radiculopathy” (Tr. 250).

         January, 2016 records by Anthony Cucchi, D.O. note that Plaintiff's condition was worsening (Tr. 255). Plaintiff reported significant pain standing or walking but no pain while sitting (Tr. 256). He exhibited an unstable gait and reduced lower extremity strength (Tr. 256). Dr. Cucchi noted that Plaintiff requested surgery instead of conservative treatment (Tr. 257-258). Records from the following month note that ...

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