Berkowski v. Commissioner of Social Security

• Decision Date: 09 September 2009
• Docket Number: Case No. 08-12862.
• Parties: Timothy BERKOWSKI, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

652 F.Supp.2d 846

Timothy BERKOWSKI, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 08-12862.

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

September 9, 2009.

COPYRIGHT MATERIAL OMITTED

Thomas J. Bertino, Wyandotte, MI, for Plaintiff.

Theresa M. Ausa Urbanic, U.S. Attorney's Office, Detroit, MI, for Defendant.

OPINION AND ORDER

PATRICK J. DUGGAN, District Judge.

On July 3, 2008, Plaintiff filed this lawsuit challenging a final decision of the Commissioner denying his application for Social Security Disability Insurance Benefits. On the same day, this Court referred the case to Magistrate Judge Mona K. Majzoub. On November 17, 2008, Plaintiff filed a motion for summary judgment seeking an award of benefits or, in the alternative, an order remanding the case to the Administrative Law Judge for additional findings. On January 29, 2009, Defendant filed a motion for summary judgment. Magistrate Judge Majzoub considered both motions.

On August 13, 2009, Magistrate Judge Majzoub filed her Report and Recommendation ("R & R") recommending that this Court deny both Plaintiff's and Defendant's motions for summary judgment and remand the case to the Social Security Administration for further proceedings. At the conclusion of the R & R, Magistrate Judge Majzoub advises the parties that they may object and seek review of the R & R within ten days of service upon them. (R & R at 861-62.) She further specifically advises the parties that "[f]ailure to file specific objections constitutes a waiver of any further right to appeal." (Id., citing Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981)). Neither party filed objections to the R & R.

The Court has carefully reviewed the R & R and concurs with the conclusions reached by Magistrate Judge Majzoub. Nonetheless, 42 U.S.C. § 405(g) authorizes only two types of remand: "(1) a post-judgment remand in conjunction with a decision affirming, modifying, or reversing the decision of the Secretary (a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material evidence that for good cause was not previously presented to the Secretary (a sentence-six remand)." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir.1994). Because this case does not require consideration of new evidence, the remand must be made post-judgment pursuant to sentence four of 42 U.S.C. § 405(g). Therefore, the Court reverses the Commissioner's denial of Plaintiff's benefits insofar as the ALJ's credibility determination with respect to the issue of the severity of Plaintiff's pain is not supported by substantial evidence. Furthermore, the Court remands this matter to the Commissioner for proceedings consistent with Magistrate Judge Majzoub's R & R.

Accordingly,

IT IS ORDERED that Plaintiff's motion for summary judgment is GRANTED IN PART.

IT IS FURTHER ORDERED that Commissioner's motion for summary judgment is DENIED.

IT IS FURTHER ORDERED that the Commissioner's denial of Plaintiff's benefits is REVERSED.

IT IS FURTHER ORDERED that this matter is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with Magistrate Judge Majzoub's R & R.

A judgment consistent with this order shall issue.

REPORT AND RECOMMENDATION

MONA K. MAJZOUB, United States Magistrate Judge.

I. RECOMMENDATION:

This Court recommends that Defendant's Motion for Summary Judgment (docket no. 17) be DENIED, that Plaintiff's Motion for Summary Judgment (docket no. 12) be DENIED, and that the case be remanded for further proceedings as set forth herein.

* * *

II. PROCEDURAL BACKGROUND

Plaintiff filed an application for disability and Disability Insurance Benefits with a protective filing date of August 28, 2003, alleging that he had been disabled and unable to work since January 16, 2003 due to a back injury and possible liver problem. (TR 81, 101-02). The Social Security Administration denied Plaintiffs claim. A requested de novo hearing was held on October 20, 2006¹ before Administrative Law Judge (ALJ) Kathryn D. Burgchardt who subsequently found that the claimant was not entitled to disability or Disability Insurance Benefits because he was not under a disability at any time from January 16, 2003 through the date of the ALJ's November 21, 2006 decision. (TR 29, 931). The Appeals Council declined to review the ALJ's decision and Plaintiff commenced the instant action for judicial review. (TR 5-7). The parties filed Motions for Summary Judgment and the issue for review is whether Defendant's denial of benefits was supported by substantial evidence on the record.

III. PLAINTIFF'S TESTIMONY, MEDICAL EVIDENCE AND VOCATIONAL EXPERT TESTIMONY

A. Plaintiff's Testimony and Reports

Plaintiff was forty-two years old at the time of the administrative hearings and has a high school education. (TR 897, 901). Plaintiff is married and has four children, including step children. (TR 904). Two of the children, ages eighteen and six, live with him. (TR 904). Plaintiff has past work experience as a truck driver and in auto repair and service write-ups. Plaintiffs last job was as a delivery and pick-up driver. (TR 117, 909). Plaintiff was injured on the job on January 16, 2003 and has not worked since that date. (TR 122, 897), Plaintiff testified that his back injury gives him the most problems. (TR 898). He underwent a micro lumbar decompression at L4 and L5 in 1989 or 1990. (TR 898). Plaintiff testified that as of the few months prior to the June 2006 hearing he no longer had health insurance. (TR 899).

Plaintiff testified that he also developed depression and takes Effexor for it. (TR 899, 946). Plaintiff testified that his memory and concentration have become worse and he has trouble completing tasks, for example, he cannot follow an entire television program. (TR 947). Plaintiff has trouble falling asleep and staying asleep. (TR 947). Plaintiff has had injuries to his right hand occurring as far back as childhood. (TR 901). Two fingers and the end of his thumb were severed in various accidents and reattached. (TR 901). Plaintiff testified that he has arthritis in his right hand with stiffness. (TR 943). Plaintiff testified that he has no feeling at the tip of his thumb, he cannot grip things like he used to be able to and he drops things on a daily basis. (TR 943-45). Plaintiff testified that he is also treated for irritable bowel syndrome with diverticulitis and he has to use the bathroom from four to six times per day, taking approximately five to ten minutes in the restroom. (TR 947-48). Plaintiff reported that his ankle was shattered in 1979 and now it swells at times and his ankle locks up once or twice a month resulting in falls. (TR 948). It also causes extreme pain and he reported that he walks with a limp. (TR 948).

Plaintiff testified that he was in a car accident in 1994 and suffered injury at the C6 and C7 vertebrae resulting in pain in the neck and left arm and a closed head injury which caused memory loss and confusion. (TR 950-52). He underwent pain management treatment. (TR 950). He described that the left should now hurts when he is driving and it causes numbness in his arm. (TR 950). Plaintiff reported a chain saw injury from 1997 or 1998 which caused damage to his left knee. (TR 954). Plaintiff also reported that he had approximately one dozen surgeries for kidney stones. (TR 954).

Plaintiff alleged that he can sit from ten to twenty minutes without changing positions, stand for fifteen minutes to a half-hour and walk from one half to one block; if he walks farther than that he has problems with his lower back and right leg. (TR 900). Plaintiff testified that he can lift a gallon of milk and is able to pick a piece of paper off the table. (TR 900). Plaintiff is able to read. He has a driver's license and drives. (TR 901-02). Plaintiff seldom goes grocery shopping, does not engage in household chores, and testified that he sometimes needs help putting on his shoes. (TR 911). If Plaintiff is home by himself, he can prepare a sandwich or other food. (TR 912).

Plaintiff testified that if he moves the right way he feels as if someone shot him in the back and he needs injections in his back to "calm everything down," and is bed ridden for days. (TR 902). At the June 2006 hearing Plaintiff testified that he has never used marijuana and alcohol has "never been a factor." (TR 903). At the October 2006 hearing Plaintiff testified that he had not used marijuana in 15 years. (TR 952). He testified that he went through rehabilitation for a substance abuse problem with cocaine in the early 1990's but he has not used it since then. (TR 904). At the June 2006 hearing Plaintiff testified that he was taking Effexor, Zanaflex and OxyContin. (TR 908). Plaintiff takes OxyContin, 80 mg three times per day for his back and lower right leg pain. (TR 945). Plaintiff testified that he did not have side effects on these medications as he had on others which had made him sick to his stomach. (TR 908). He reported that the OxyContin made him slow and tired and he lies down for one to four hours after he takes it. (TR 908, 945).

B. Medical and Record Evidence

In reviewing the ALJ's decision, the Court must scrutinize the record in its entirety. See Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir.1992). The Court has reviewed the record in full. In light of the extensive record before the Court, the Court will provide the background of Plaintiffs medical evidence and discuss it in more detail below, with respect to each issue raised by Plaintiff.

Plaintiff underwent a right L4-L5 microlumbar decompression in September 1988. (TR 369). Plaintiff reinjured his back on January 16, 2003. (TR 122). Judy Macy, M.D., ordered an MRI which was performed on January 28, 2003 and...