Villarreal v. Commissioner of Social Security

          Judith E. Levy District Judge.

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Secundiono Villarreal (“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”) under the Social Security Act. The parties have filed cross motions for summary judgment 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 be GRANTED [Docket #21] and that Plaintiff's Motion for Summary Judgment be DENIED [Docket #14].

         I. PROCEDURAL HISTORY

         Plaintiff applied for DIB on July 1, 2015, alleging disability as of March 25, 2012 (Tr. 171). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on April 7, 2017 in Livonia, Michigan before Administrative Law Judge (“ALJ”) David A. Mason, Jr. (Tr. 27). Plaintiff, represented by attorney Barry Franklin Keller, testified, as did vocational expert (“VE”) Annette Holder (Tr. 31-50, 50-57). On August 24, 2017, ALJ Mason found that Plaintiff was not disabled (Tr. 10-21). On April 18, 2018, the Appeals Council denied review of the ALJ's determination (Tr. 1-3). Plaintiff filed suit in this Court on May 6, 2018.

         II. BACKGROUND FACTS

         Plaintiff, born August 27, 1966, was just short of his 51^st birthday at the time of the administrative determination (Tr. 21, 171). He completed two years of college and corrections academy training (Tr. 187). He worked as a corrections officer, court officer, and “screener” for the federal government (Tr. 188). He alleges disability due to depression, anxiety, diabetes, high blood pressure, and body aches (Tr. 186).

         A. Plaintiff's Testimony

         At the April 7, 2017 hearing, Plaintiff offered the following testimony: Before ceasing work in May, 2012, he worked as a corrections officer at the Shiawassee County Sheriff's Office (Tr. 31). He was terminated in May, 2012 for the inability to perform his work duties due to the health conditions of diabetes, high blood pressure, anxiety, and depression (Tr. 32). After the termination, he applied for work at “several municipalities” but did not receive responses (Tr. 32).

         The combination of anxiety attacks, high blood pressure, and diabetes caused him to isolate from others (Tr. 33). He stood 5' 10" and weighed 271 pounds (Tr. 33). He was divorced and had a son, 12 (Tr. 34). He was currently living in an apartment with his mother and supported himself with the proceeds of the sale of his house (Tr. 35). He had a driver's license and drove 200 miles each weekend to pick up his son and drove altogether around three days a week (Tr. 35-36).

         Plaintiff did not visit family or friends other than his son (Tr. 37). He had a smart phone and used Facebook (Tr. 37). He smoked around one pack of cigarettes each week (Tr. 37). He stopped drinking about 18 months before the hearing but before that time was drinking two six-packs of beer every day (Tr. 38).

         Plaintiff's counsel interjected that Plaintiff received a settlement in 2014 from his former employer for violating his First Amendment rights but had since “squandered” the settlement (Tr. 39-41). He stated prior to the settlement, Plaintiff had been traumatized by the removal of the guns in his house by the State Police and the Shiawassee County Sheriff's Department although he had not been charged with a crime (Tr. 42-43). Counsel acknowledged that Plaintiff had experienced mental health problems as far back as 2007 (Tr. 43).

         Plaintiff stated that he used the settlement proceeds to set up an education fund for his son, buy a car, pay bills, make back child support payments, and repay individuals who had lent him money (Tr. 41).

         Plaintiff experienced medication side effects (Tr. 43). On a scale of one to ten, he experienced level “eight” back and joint pain with or without the recommended medication of Motrin (Tr. 43-44). He used a heating pad for lower back pain (Tr. 46). He had not undergone epidural injections (Tr. 44). He was able to microwave simple meals, grocery shop, wash dishes, do laundry chores, take out the garbage, and vacuum (Tr. 45). He did not perform lawn or garden work (Tr. 45). He did not leave the house unless shopping, attending an appointment, or picking up his son (Tr. 46). His sleeping habits were erratic (Tr. 46). He could walk 30 yards, stand for five minutes, and sit for 30 (Tr. 47). He could lift a gallon of milk and climb stairs with the use of handrail (Tr. 48). He could bend far enough to touch his knees (Tr. 48). He did not have problems using his hands (Tr. 48).

         Plaintiff experienced memory and concentrational problems and difficulty being around others (Tr. 48). He was unable to follow the plot of a television show (Tr. 48). He was unable to understand or carry out basic instructions but could remember simple instructions (Tr. 48).

         In response to questioning by his attorney, Plaintiff stated that he experienced the medication side effect of grinding his teeth and did not believe that his antidepressant/bipolar medications were working (Tr. 49). He was unable to work due to lack of concentration, inability to communicate with others, and self isolation (Tr. 49). He had daily anxiety attacks characterized by breathlessness and agitation (Tr. 49). He would be unable to perform a production job due to his inability to focus or work with other individuals (Tr. 50). He had “lost trust” in people (Tr. 50).

         B. Medical Records^[1]

         1. Treating Sources

         a. Records Predating the Alleged Onset of Disability Date of May 25, 2012

         In August, 2007, Plaintiff reported the stressors of a marital separation, legal matters, finances, and work (Tr. 746). He was assigned a GAF of 40 due to depression and marital stress^[2] (Tr. 739). The following month, Plaintiff was assigned a GAF of 45^[3] (Tr. 684). February, 2008 records note an improved mood despite continued marital problems (Tr. 706). June, 2010 counseling records note Plaintiff's report of depression and panic attacks (Tr. 719). In April, 2011, Plaintiff reported that he was doing better and ...