Merlone v. Comm'r of Soc. Sec.

• Decision Date: 16 August 2016
• Docket Number: Civil Action No. 15-12882
• Parties: JOSEPH MERLONE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

JOSEPH MERLONE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil Action No. 15-12882

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 16, 2016

Honorable John Corbett O'Meara

Magistrate Judge David R. Grand

REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [20, 25]

Plaintiff Joseph E. Merlone ("Merlone") brings this action pursuant to 42 U.S.C. §405(g), challenging the final decision of Defendant Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). Both parties have filed summary judgment motions [20, 25], which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B).

I. RECOMMENDATION

For the reasons set forth below, the Court finds that substantial evidence supports the Administrative Law Judge's ("ALJ") conclusion that Merlone is not disabled under the Act. Accordingly, the Court recommends that the Commissioner's Motion for Summary Judgment [25] be GRANTED, Merlone's Motion for Summary Judgment [20] be DENIED, and that, pursuant to sentence four of 42 U.S.C. §405(g), the ALJ's decision be AFFIRMED.

II. REPORT

A. Procedural History

On January 3, 2013, Merlone filed an application for DIB, alleging a disability onset date of November 22, 2012. (Tr. 125, 153). This application was denied at the initial level. (Tr. 81-84). Merlone filed a timely request for an administrative hearing, which was held on July 17, 2014, before ALJ Manh H. Nguyen. (Tr. 48-70). Merlone, who was represented by attorney John Wildeboer, testified at the hearing, as did vocational expert Donald Hecker. (Id.). On October 14, 2014, the ALJ issued a written decision finding that Merlone is not disabled under the Act. (Tr. 31-42). On June 15, 2015, the Appeals Council denied review. (Tr. 1-5). Merlone timely filed for judicial review of the final decision on August 14, 2015. (Doc. #1). On February 16, 2016, Merlone filed a Motion for Summary Judgment. (Doc. #20). The Commissioner filed a Motion for Summary Judgment on July 22, 2016 (Doc. #25), and Merlone filed a reply on August 8, 2016. (Doc. #26).

B. Framework for Disability Determinations

Under the Act, DIB are available only for those who have a "disability." See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines "disability" as the:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. §423(d)(1)(A). The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or combination of impairments that "significantly limits ... physical ormental ability to do basic work activities," benefits are denied without further analysis.

Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education, or work experience.

Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that the claimant can perform, in view of his or her age, education, and work experience, benefits are denied.

Scheuneman v. Comm'r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R. §404.1520); see also Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). "The burden of proof is on the claimant throughout the first four steps .... If the analysis reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the [defendant]." Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

C. Background

1. Merlone's Reports and Testimony

At the time of the administrative hearing, Merlone was 52 years old, and at 5'7'' tall, weighed 185 pounds. (Tr. 54). He lived in a house with his wife and seven-year-old twin daughters. (Tr. 54-55, 168). Merlone's highest level of education is twelfth grade. (Tr. 54). He worked as a truck driver for a flower company from May 5, 1991 until November 22, 2012, the alleged onset date. (Tr. 55-57, 158). He tried going back to work in early 2013 but was sent home after a few hours because his employer "said [he] was late and ... [he] was making them nervous when [he] was there .... And [he] didn't feel good." (Tr. 56). According to Merlone, he felt like he had motion sickness; he was nauseous, dizzy, short of breath, and felt like he had tovomit. (Tr. 57-58). He had "no idea" what caused him to feel this way. (Tr. 56). On that day in 2013 when Merlone was sent home from work, he was not moving around and was not driving a truck; he was sitting at a desk answering phones. (Tr. 58).

Merlone alleges disability as a result of various physical conditions, including a heart condition, high blood pressure, blood in his urine, coronary artery disease, aortic aneurysm, a mass on his bladder (which at the time, was being evaluated for cancer), and diabetes. (Tr. 157). He testified that when he tried going back to work in 2013, he "didn't feel good all day." (Tr. 59). He added, "I never really do feel good." (Id.). Regarding the motion sickness he described above, Merlone further testified that "I have those symptoms every day," and "[s]ome days they are worse, [but] they are never better." (Id.). He testified that, in addition to motion sickness, he is starting to have chest pains again regularly, he has diarrhea daily, and has difficulty walking or standing due to numbness and tingling. (Tr. 62-64). In particular, if he is standing for more than three minutes, his feet "hurt terribly" and his legs get "all numb and cramped up, and it ... limits [his] ability to walk." (Tr. 64). Merlone testified that he has difficulty concentrating and assumed it is because of the combination of his different symptoms.¹ (Tr. 64-65).

Merlone also testified that he had a catheterization and stents implanted three times—the first time was in November 2012—but his symptoms did not change substantially after these procedures. (Tr. 60). One month before the administrative hearing, Merlone went to the emergency room. He said his symptoms included a severe headache, dizziness, and "just all flutter feeling." (Tr. 60-61). Merlone testified that, at the hospital, they determined his blood pressure was too high. (Tr. 61). They brought down his blood pressure and, given the number ofmedications he was taking, had him see his cardiologist the next day. (Tr. 61). His cardiologist prescribed another blood pressure medication. (Id.). After this trip to the emergency room, Merlone saw Dr. Baker, an ear, nose, and throat doctor. (Tr. 63). Dr. Baker tested Merlone for allergies (and found that Merlone has some), but when he tested Merlone for vertigo, Merlone "never finished the actual test for it, because [he] became violently ill." (Tr. 63).

Merlone takes several medications for his heart, including Amlodipine/Benazepril, Atorvastatin, Coreg, Ecotrin, Imdur, Spironolactone-Hydrochlorothiazide (Spirono HCTZ). (Tr. 159). These medications do not cause side effects. (Tr. 175).

Merlone testified that on an average day, he wakes up "slowly" and takes his medicine. (Tr. 59, 169). He checks his blood pressure, and after that, he is sick and there isn't much he can do. (Id.). By nine o'clock in the morning, he is usually sleeping again. (Tr. 59). He further testified that he sleeps all night² and then sleeps "on and off" throughout the day, "depending on how [he] feel[s]," asserting that he "just doesn't have any energy and no ambition to do anything all day." (Id.). Overall, Merlone said he cannot function on a daily basis "without passing out" and says his "vision is real poor" because of his medical issues. (Tr. 168). When asked what he was able to do before his illnesses or conditions that he can't do now, Merlone responded: "function. [T]he main problem." (Tr. 169).

According to Merlone, he doesn't really do anything for his young twin daughters. (Tr. 55). He testified that he tries to watch them, but he "can't get very far at it." (Id.). His older children try to help him with this. (Tr. 169). Merlone doesn't help his daughters with their homework because "[t]hey don't really have a lot of homework right now." (Id.). He doesn't doyard work or house work because his "condition" does not allow him to without "getting real sick." (Tr. 60, 171). Merlone explained that his difficulty with doing laundry is that he can't do the required work of carrying it outside and hanging it on a line. (Tr. 60). He might cook weekly, but for the most part, his wife takes care of preparing meals for the family. (Tr. 170). He doesn't shop because other people do this for him, too. (Tr. 171).

Merlone indicated having no problems with personal care; he is able to bathe, dress himself, fix his hair, shave, feed himself, and use the toilet. (Tr. 169). Along those lines, he doesn't need to be reminded to carry out his personal needs. (Tr. 170). At the same time, he said he "can't" go outside alone because he is "scared of his illness" and what could happen if he were alone. (Tr. 171). He doesn't drive because of his vision problems and because "it is very dangerous, with what can come on real quick to make me faint behind the wheel." (Id.)...