United States District Court, E.D. Michigan, Southern Division
DAVID F. WHITEHEAD, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
GOERGE CARAM STEEH, U.S. DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE
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.
applied for DIB and SSI on January 12 and 31, 2016
respectively, alleging an onset of disability date of January
6, 2015 (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.
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).
offered the following testimony:
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.
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.
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.
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).
Records Relating to Plaintiff's Treatment
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).
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 ...