Bailey v. Commissioner of Social Sec.

• Citation: 623 F.Supp.2d 889
• Decision Date: 03 June 2009
• Docket Number: Case No. 1:08-cv-320.
• Parties: Charity M. BAILEY, Petitioner, v. COMMISSIONER OF SOCIAL SECURITY, Respondent.
• Court: U.S. District Court — Western District of Michigan

Page 889

623 F.Supp.2d 889

Charity M. BAILEY, Petitioner, v. COMMISSIONER OF SOCIAL SECURITY, Respondent.

Case No. 1:08-cv-320.

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

June 3, 2009.

Frederick W. Bleakley, Bleakley Law Offices PC, Muskegon, MI, for Petitioner.

Matthew L. Meyer, U.S. Attorney, Grand Rapids, MI, for Respondent.

OPINION and ORDER

Overruling the Plaintiff's Objections and Adopting the R & R; Affirming the Commissioner's Denial of Disability Benefits; Terminating and Closing the Case

PAUL L. MALONEY, Chief Judge.

Pursuant to 28 U.S.C. § 636 and W.D. MICH. LCIVR 72.2(b), this matter was automatically referred to the Honorable Ellen S. Carmody, United States Magistrate Judge, who issued a Report and Recommendation ("R & R") on April 21, 2009. Plaintiff Charity Bailey ("Bailey") filed timely objections on April 29, 2009,¹ and as ordered the defendant Commissioner of Social Security ("Commissioner") filed a response to those objections on May 26, 2009. The objection is sufficiently specific and articulated to trigger de novo review of the portions of the R & R to which Ms. Bailey has objected.²

The court finds the R & R to be well-reasoned and is unconvinced by the plaintiff's objection. For the reasons explained by the R & R, Bailey's back problems (degenerative disease of the lumbar spine), hypertension (high blood pressure), bipolar disorder, obesity, and marijuana abuse did not render her disabled from her date last insured (October 10, 2001) through the date of her application (May 1, 2006), when she was 30 to 35 years of age.

This court agrees with the Magistrate that substantial evidence supported the ALJ's determination that Bailey was able to perform her past relevant work as an assembler, as well as other suitable work that exists in significant numbers. Specifically, substantial evidence supported the underlying finding that Bailey had the RFC to perform light work, as defined by 20 C.F.R. § 404.1567, subject to these limitations: lifting and carrying no more than ten pounds and no more than 20 pounds occasionally; only occasionally reaching, stooping, climbing, crouching or crawling; no work at unprotected heights or near dangerous machinery; only unskilled work with simple, routine tasks involving only simple work-related decisions with few workplace changes; no interaction with the general public; and only occasional interaction with co-workers or supervisors. See R & R at 908-09.

The medical record begins with a November 2001 MRI³ of the lumbar spine which revealed bilateral spondylosis⁴ at lumbar vertebra L5, with spondylothesis⁵ of L5 over sacral vertebra S1, but no compression deformity, signal abnormality, herniation (abnormal protrusion)⁶, or "significant" stenosis (narrowing of the spinal canal).⁷ See R & R at 905 (citing Tr 228). November 2001 treatment notes described Bailey's back pain as better in the morning but less improved at night, noted that she was taking Tylenol, and instructed her to lose weight and exercise. See R & R at 905 (citing Tr 226). Bailey started physical therapy ("PT") at about this time and by December 26, 2001 she reported more flexibility and strength in her back and abdomen. See R & R at 905 (Tr 224). In January 2002 Bailey reported that although she regularly exercising and not routinely taking any medication, she was no longer able to work her current job because it required her to repeatedly lift 28 pounds. See R & R at 905 (citing Tr. 224).

In March 2002 Dr. Moulton examined Bailey, who reported that she was suffering lower-back pain radiating into her lower left leg, and that such pain had been exacerbated by her prior job's requirement that she lift 14 pounds 700-800 times per day. See R & R at 905 (citing Tr 248-29). Bailey walked comfortably, was able to walk heel-to-toe, had negative straight leg raising,⁸ 5/5 strength, a negative Babinski test,⁹ and normal sensation in both lower extremities, but X-rays revealed spondylolisthesis at L5-S1 and spondylosis at L4-L5. After instructing Bailey to lose weight and participate in PT, Dr. Moulton administered a nerve-root injection¹⁰ later that month, leading Bailey to report "good pain relief" in April 2002, when he reiterated his advice to lose weight. See R & R at 905-06 (citing Tr 159, 245, 249). By July 2002 Dr. Moulton was reporting Bailey made "significant strides" losing weight and reducing her pain, but in October 2002 Bailey reported "significant" back pain that came and went, causing him to modify her medication. See R & R at 905-06 (citing Tr 241).

The medical record discussed contains a 3.5-year gap between late 2002 and early 2006. Bailey concedes that her "only back treatment since 2003 has been pain medication and [non-prescribed] marijuana for pain." Plaintiff Charity Bailey's Objections to the R & R, filed April 29, 2009 ("P's Objections") at 2 (citing Tr 318, 320 and 326). Bailey also seems to concede that she failed to lose enough weight for Dr. Moulton to conclude that back surgery was appropriate, as he had told her that such surgery was conditioned on her losing weight. See P's Objections at 2 ("Dr. Moulton recommended back surgery, but would not perform same unless plaintiff lost weight. Consequently, plaintiff's only back treatment since 2003 has been . . . .") (italics added).

In March 2006, Bailey's husband took her to the ER because she was very paranoid and had made "abnormal" comments; she reported daily marijuana use and expressed fear that she had smoked marijuana laced with another drug. Her drug screen was positive for cannabinoids and benzodiazepine.¹¹ Tr 193. After observing Bailey's "somewhat flat" affect, noting that she was not obviously paranoid, administering a Global Assessment of Functioning ("GAF") test which yielded a score of 50¹², and seeing a negative CT scan of Bailey's head, an ER physician diagnosed her with bipolar disorder—manic phase.¹³ See R & R at 906 (citing Tr 162-72 and 184). Bailey was released on March 2 but returned twice on March 3 and was admitted to the psychiatric unit, where she was diagnosed with bipolar disorder and kept until her discharge on March 21. See P's Objections at 3 (citing Tr 161-62, 165, 168, 171, and 176). Upon examination later that month (March 2006) by Dr. Vasquez, Bailey reported angry outbursts, anxiety, mood swings, difficulty concentrating, worry, and panic attacks, but less paranoia; her GAF score was down to 46, but she had an unremarkable result on a mental health exam, leading him to diagnose bipolar I disorder-depressed phase and adjust her medication. See R & R at 906 (citing Tr 199-201).

Following an April 2001 examination at which Dr. Vasquez noted her lack of compliance with the prescribed medication regimen, Bailey refused his direction to stop smoking marijuana, and a May 2006 exam by Vasquez yielded another unremarkable mental-status result and Bailey's admission that she still was not taking her medications as instructed. See R & R at 906 (citing Tr 189 & 268). Another May 2006 exam yielded a GAF score again at 46 and an additional diagnosis of marijuana dependence in early partial remission. See R & R at 906 (citing Tr 184). One Joe DeLoach completed a psychiatric review technique form and a mental residual functional capacity ("RFC") form for Bailey in June 2006. DeLoach opined that Bailey suffered from bipolar disorder and generalized anxiety disorder¹⁴ meeting the Part A criteria for two listed impairments (Section 12.04 Affective Disorder and 12.06 Anxiety Disorder) but not the Part B criteria, because she experienced only mild restrictions in daily living activities, moderate difficulty in maintaining social functioning and concentration/persistence/pace, and had had one or two episodes of decompensation.¹⁵ The most recent discussed items in the medical record are two reports from September 2006: Dr. Vasquez's examination report stating that Bailey reported better sleep without side effects from her medication, had a normal mental-status exam, and exhibited mild depression, and Bailey's own Daily Activities Questionnaire reporting that she helped her children prepare for school, cooked, shopped, read, decorated cakes, watched television, and attended sporting events. R & R at 907 (citing Tr 141-46 and 266). Also in September 2006, Bailey reported that she napped during the day and did not socialize. See P's Objections (citing Tr 141, 143 and 145).

At Bailey's October 2006 hearing before the ALJ, she testified that she was experiencing severe back pain (9 on a scale of 1-10) but that she was taking her pain medication perhaps once a week, "if that"— smoking marijuana for pain relief instead—and never told her doctor that her prescribed pain medication was not working. See R & R at 907 (citing Tr 316-322). Bailey testified that she drove, cooked, shopped, washed laundry, made the bed, and attended sporting events; that she could walk 1-2 blocks, sit for about an hour, lift "maybe" 20 pounds but not 30 pounds, climb a flight of stairs, operate foot controls, bend at the waist and knees "once in a while"; and that she could engage in an activity for 8 hours if permitted to sit or stand as needed. See R & R at 907 and P's Objections at 4-5 (both citing Tr 326-329). Finally, Bailey emphasizes her testimony that she has trouble sleeping at night, goes back to sleep after getting her children to school in the morning, and has her children do the housecleaning. See P's Objections at 5 (citing Tr 323, 332 and 335).

Bailey's first objection is that the Magistrate should have recognized the ALJ's commission of reversible legal error in his assessment of her credibility. The court rejects this objection. Declining to credit Bailey's testimony that she experienced severe back pain ("9 on a scale of 1 to 10"), the ALJ applied the so-called Duncan standard, which directs the court to consider (1) whether objective medical evidence confirms the severity of the...