Calloway v. Comm'r of Soc. Sec.
| Decision Date | 01 March 2016 |
| Docket Number | Case No. 15-10020 |
| Parties | LATISHA CALLOWAY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt 11, 13)
On January 6, 2015, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge John Corbett O'Meara referred this matter to Magistrate Judge Michael Hluchaniuk for the purpose of reviewing the Commissioner's decision denying plaintiff's claim for benefits. (Dkt. 3). This matter was reassigned to the undersigned Magistrate Judge on January 5, 2016, pursuant to administrative order. (See Text-Only Order dated January 5, 2016). This matter is currently before the Court on cross-motions for summary judgment. (Dkt. 11, 13).
Plaintiff filed the instant claim for supplemental security income on February 24, 2012, alleging disability beginning on that same date. (Dkt. 7-2, Pg ID 56). Plaintiff's claim was initially disapproved by the Commissioner on July 6, 2012. Id. Plaintiff requested a hearing and on June 10, 2013, plaintiff appeared, along with her attorney, before Administrative Law Judge (ALJ) Melvyn B. Kalt, who considered the case de novo. (Dkt. 7-2, Pg ID 72-100). In a decision dated August 30, 2013, the ALJ found that plaintiff was not disabled. (Dkt. 7-2, Pg ID 53-68). Plaintiff requested a review of this decision on October 10, 2013. (Dkt. 7-2, Pg ID 51). The ALJ's decision became the final decision of the Commissioner when, after the review of additional exhibits,1 the Appeals Council on September 17, 2014, denied plaintiff's request for review. (Dkt. 7-2, Pg ID 33-38); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that defendant's motion forsummary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.
Plaintiff was born in 1970 and was 41 years old on the application date and 37 years old on the alleged onset date. (Dkt. 7-2, Pg ID 62, 66). The ALJ applied the five-step disability analysis to plaintiff's claim and found at step one that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Id. at 58. At step two, the ALJ found that plaintiff's status post gunshot wounds to the left shoulder, left buttock, and right leg were "severe" within the meaning of the second sequential step. Id. at 59. At step three, the ALJ found no evidence that plaintiff's combination of impairments met or equaled one of the listings in the regulations. Id. at 61. The ALJ determined that plaintiff had the residual functional capacity (RFC) to perform sedentary work as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except that she would require the option to alternate between sitting and standing at will. The claimant could never climb. She could occasionally balance, stoop, kneel, crouch, or crawl. The claimant could not perform activities requiring the use of the upper extremities above shoulder level. She could not work around unprotected heights. Due to pain and the side effects of medication, the claimant would be limited tosimple, unskilled work.
Id. at 61. At step four, the ALJ concluded that plaintiff could not perform her past relevant work as a housekeeper, laundry laborer, telemarketer, and waitress. Id. at 66. At step five, the ALJ denied plaintiff benefits because plaintiff could perform a significant number of jobs available in the national economy. Id. at 67-68.
Plaintiff first argues that the ALJ failed to accord proper weight to the opinions of her treating physician, Dr. Ayres. Specifically, plaintiff contends that the ALJ indicating that her pain is no worse than a 3 out of a 10 on average since the application date is incorrect, especially considering the medical documentation from Dr. Ayres, which reports several dates of service where she reported a significant increase in pain. According to plaintiff, the ALJ selectively relied on portions of Dr. Ayres' opinions without explaining why all of the opinion was not accepted. Furthermore, the ALJ indicated that plaintiff's pain had been generally manageable with conservative treatment; however, plaintiff also points out that she often sought medical treatment when her pain was exacerbated and for which her conservative treatment was not working. Thus, plaintiff contends, the evidence shows that conservative treatment was not working due to the fact she has had significant flare ups. As indicated in the records, plaintiff reported her pain at a 10 at its worse and the 10 level was not addressed by the ALJ anywhere in thedecision. According to plaintiff, this is especially problematic, considering how her pain level of a 10 would affect her RFC. Plaintiff contends that the ALJ did not give the opinion of Dr. Ayres great weight, in fact, he specifically states that this medical opinion is given "very limited weight." Therefore, the ALJ failed to comply with 20 C.F.R. § 404.1527 by failing to record adequate weight to the opinion of Dr. Ayres' records and findings.
Next, plaintiff argues that the ALJ erred in finding that plaintiff can perform sustained work activities, despite an absence of support for such a finding in the record. Although the ALJ's RFC provides for "the option to alternate between sitting and standing at will," plaintiff says the evidence in the record does not support her ability to stand and/or sit for an 8 hour work day with breaks. Specifically, the record documents a severe medical condition in her lumbar spine including pain, muscle spasm, and reduced range of motion. The pain in her back radiates to her left buttock. Throughout the record she complains of prolonged sitting and standing causing increased pain in her left buttock. Even with her sedentary lifestyle, on April 9, 2012, she was seen by Dr. Ayres for increased pain in her buttocks. (Dkt. 7-10, Pg ID 329). On that date, she reported her pain as a 5 and her prescriptions for Oxycodone and Xanax were refilled. On May 1, 2012, she was seen for increased pain in her left buttocks, right knee and left arm. She reported her pain at a 4 and, at its worst, a 10. (Dkt. 7-10, Pg ID 325). In addition,Plaintiff reported in multiple forms, as well as her testimony during the hearing, that she has to lay down for pain as a result of her left buttocks and prolonged sitting and/or standing aggravate her left buttocks pain. In addition, the ALJ indicated that "the record does contain some evidence of pain with straight-leg raising, particularly on the left, which is consistent with the claimant's comments of discomfort in her back, left buttock and right knee." Furthermore, the ALJ also stated that "Dr. Ayres' consistent findings of tenderness and increased pain with movements support a limitation to sedentary work with only occasional postural activities, allowing the opportunity to alternate between sitting and standing at will." Therefore, the medical evidence from Dr. Ayres coupled with plaintiff's testimony does not support her ability to stand and/or sit for an 8-hour work day with breaks.
Plaintiff alleged nerve damage in her left upper extremity and repeatedly indicated that she has an inability to use her left upper extremity except to support the right upper extremity. (Dkt. 7-2, Pg ID 77). The ALJ observed that According to plaintiff, however, nowhere in the decision nor at the time of the hearing did the ALJ question her as to whether she put her own makeup on, nor does the reportfrom Dr. Mills indicate on what hand her rings were placed or how much make-up she was wearing. Without further exploration into the rings and her make-up, plaintiff contends that it was reversible error for the ALJ to assume that this one instance demonstrates that her bilateral manual dexterity is intact.
In addition, plaintiff asserts that the ALJ did not address the non-exertional capacities for performing sedentary work such as understanding, remembering and carrying out simple instructions. Rather, the ALJ merely states that plaintiff would be limited to simple, unskilled work in the RFC (Dkt. 7-2, Pg ID 61) but nowhere in the decision does the ALJ indicate how he concluded that the pain and side effects of medication would affect her ability to understand, remember and carry out simple instructions. Therefore, plaintiff maintains that the ALJ did not address the non-exertional limitations in order to perform sedentary work outlined within SSR 96-9p; nor did he address the medical evidence and her complaints in support of her ability to perform sitting or standing 8 hours a day with breaks. Agency regulations require that RFC assessments consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting, on a regular and continuous basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. (SSR 96-8p). The medical evidence as a whole (and as noted in the ALJ's findings) indicate that plaintiff has several severe medical conditions, including: status post gunshot wounds to leftshoulder,...
To continue reading
Request your trial