Street v. Commissioner of Social Security

• Citation: 390 F.Supp.2d 630
• Decision Date: 07 September 2005
• Docket Number: Civil Action No. 04-72866.
• Parties: Donald STREET, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

390 F.Supp.2d 630

Donald STREET, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil Action No. 04-72866.

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

September 7, 2005.

Lewis M. Seward, Bay City, MI, for Plaintiff.

Elizabeth J. Larin, Assistant U.S. Attorney, Detroit, MI, for Defendant.

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

EDMUNDS, District Judge.

This matter has come before the Court on the Magistrate Judge's Report and Recommendation. Being fully advised in the premises and having reviewed the record and the pleadings, including Plaintiff's Objections if any, the Court finds that the Magistrate reached the correct conclusion in the Report and Recommendation. Accordingly, the Court hereby ACCEPTS AND ADOPTS the Magistrate Judge's Report and Recommendation. It is further ordered that Plaintiff's motion for summary judgment is DENIED; Plaintiff's motion to remand pursuant to sentence four of 42 U.S.C. § 405(g) is DENIED; and Defendant's motion for summary judgment is DENIED. This matter is hereby REMANDED to the Secretary of Health and Human Services pursuant to sentence six of 42 U.S.C. § 405(g).

REPORT AND RECOMMENDATION¹

WHALEN, United States Magistrate Judge.

Plaintiff brings this action under 42 U.S.C. § 405(g) challenging a final decision of Defendant Commissioner denying his application for disability insurance benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. Both parties have filed summary judgment motions, and Plaintiff also filed a motion to remand pursuant to sentence four of 42 U.S.C. § 405(g), all of which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). I recommend that Defendant's Motion for Summary Judgment be denied, Plaintiff's Motion for Summary Judgment and Motion to Remand under sentence four be denied, but that this case be remanded pursuant to the sentence six of 42 U.S.C. § 405(g).

PROCEDURAL HISTORY

Donald Street applied for disability benefits (DIB) and Supplemental Security Income benefits (SSI) on February 28, 2002, alleging disability due to alcoholism and epilepsy as of February 2, 2002 (Tr. 40, 53). On September 3, 2003, ALJ Earl A. Witten presided over an administrative hearing at which Plaintiff, represented by attorney Milton Utter, testified (Tr. 347-375). Sandra Steele, Vocational Expert (VE) also testified (Tr. 376-381). ALJ Witten issued a decision on November 19, 2003, finding that Plaintiff retained the capacity for a range of unskilled, sedentary work (Tr. 34-35). On June 4, 2004, the Appeals Council denied review (Tr. 12-14). Plaintiff filed the present action on August 5, 2004.

A. Plaintiff's Testimony

Plaintiff, born July 9, 1959, testified that he completed tenth grade (Tr. 347). He indicated that he was a poor student, and attended special education classes in math and English (Tr. 348). He stated that he retained a current driver's license, but did not own a car or drive due to risk of experiencing a seizure while driving (Tr. 348). Plaintiff, 5'3" and one hundred and fifteen pounds, stated that he was left-handed (Tr. 348-349).

Plaintiff, divorced with no minor children, testified that for the past fifteen years, he had worked as a stock handler, performed press setup, worked in shipping and receiving, die cast, drove a fork lift, and made electric meters (Tr. 350, 371). He reported that he lost his previous two jobs after he suffered seizures at work (Tr. 353-354). He stated that he had lifted up to fifty pounds in his most recent job (Tr. 355).

Plaintiff indicated that he had experienced a seizure approximately two weeks before the hearing (Tr. 359). He stated that at the onset of a seizure, whoever was present would call an ambulance, but he disliked going to the hospital, stating that when the ambulance arrived he would "refuse them" (Tr. 360).

Plaintiff testified that he could care for his own personal needs (Tr. 361). He reported that he retired at approximately 11:30 p.m. and arose at 5:00 a.m., stating that he slept restlessly (Tr. 361). He reported that after getting up, he spent the next half hour helping his relatives get ready to go to work and school (Tr. 363). He estimated that he spent one half hour to one hour a day performing household chores such as vacuuming and dishes (Tr. 363). He stated that he napped for approximately half an hour four to five times a week (Tr. 362). He testified that he watched between four and six hours of television each day (Tr. 363).

Plaintiff stated that he experienced difficulty holding an object as heavy as a gallon of milk, due to "dislocated shoulder[s]" that were "blown out of their sockets" during a seizure four years before (Tr. 364). He denied any difficulty walking, but stated that due to shoulder pain, he could not perform "overhead" work (Tr. 365). He indicated that he was "too hyper" to sit, stand, bend, squat for any length of time (Tr. 366). He stated that he did not "do staircases," because climbing stairs made him "real lightheaded" and dizzy (Tr. 366).

Plaintiff reported that he experienced claustrophobia, and had sought mental health treatment for panic attacks (Tr. 366-367). He stated that he had completed three separate rehabilitation programs for his alcohol abuse (Tr. 367). He stated that he had been told by therapists that he had an anger problem (Tr. 367). He described his childhood as "rough," stating that his father and older brother had physically and sexually abused him (Tr. 367).

In response to his attorney's questions, Plaintiff stated that he believed that his last time in rehab had been a "turning point" (Tr. 368). He explained that he was unable to perform repetitive work with his hands because he had suffered frostbite, resulting in finger numbness (Tr. 370).

He testified that he believed that his mother, who passed away three to four years before, came and talked to him as he slept, adding that he sometimes experienced sleeplessness for up to three days (Tr. 372). He stated that he believed that his mother told him that it was "time for [him] to go with her ... [because] she honestly believes I might harm my Dad and my brother" (Tr. 372). He stated that he currently took Dilantin for seizures (Tr. 373). Plaintiff testified that his driver's license had been suspended in 1978 in an alcohol-related incident (Tr. 374). He admitted using illegal substances in "his early years" (Tr. 375).

B. Medical Evidence

In March, 1997 Plaintiff underwent an EEG after the onset of a seizure (Tr. 129). The EEG showed normal results, however physician's notes indicate that the EEG did "not rule out the possibility of [a] seizure disorder" (Tr 129). February, 2000 shoulder x-rays showed evidence of bilateral inferior dislocations (Tr. 199). In January, 2002² Plaintiff sought medical treatment, reporting that he had been vomiting for three days (Tr. 134). Plaintiff admitted to drinking one half pint to one pint of Seagrams each week (Tr. 134). A.W. Dettman, D.O., recorded that he discussed with Plaintiff that his "main problem appeared to be alcohol abuse" (Tr. 134). Notes from a later January, 2002 exam indicate that Plaintiff admitted continued alcohol abuse, stating that Zoloft prescribed for his anxiety did not help his symptoms (Tr. 133).

In February, 2002 Plaintiff began taking Dilantin after passing out at work from a possible seizure (Tr. 131). Notes from a March, 2002 exam state that Plaintiff suffered a relapse, consuming a large amount of alcohol (Tr. 132).

In April, 2002 S.L. Schuchter, M.D., examined Plaintiff on behalf of SSA (Tr. 135). Dr. Schuchter noted that Plaintiff had been seen at the University of Michigan, where surgery was recommended for both shoulders (Tr. 135). Plaintiff admitted to intermittent alcohol binging (Tr. 135). Dr. Schuchter concluded that Plaintiff experienced bilateral shoulder pain, neck pain, gastritis, and a history of seizures (Tr. 136).

In May, 2002 Plaintiff underwent a three day alcohol detoxification program. His discharge summary stated that among other conditions, he experienced alcohol dependence, a history of grand mal seizures, and GERD (gastroesophogeal reflux disease) (Tr. 149). Hospital staff gave him a guarded prognosis, but stated that his outlook would improve with continued in-patient treatment (Tr. 150). On June 2, 2002 Lois P. Brooks, EdD, FLP performed a mental evaluation on behalf of the SSA. Dr. Brooks noted that Plaintiff reported physical and sexual childhood abuse, telling her that he did not "have a future" (Tr. 156,160). He admitted drinking a pint of rum the day before his examination and reported hallucinations of cats, dogs, and lizards in his home "when nothing was there." (Tr.156, 158). Dr. Brooks assigned Plaintiff a GAF of 40, stating that his prognosis was "poor"³ (Tr. 160).

Also in June, 2002, Dr. Gary Ralph, D.O., completed two separate Psychiatric Review Technique Forms (PRTF) (Tr. 165-177, 183-196). The first PRTF found Plaintiff disabled, stating that when the effects of alcohol were considered, Plaintiff met listing 12.09 (substance addiction disorders) (Tr. 173). However, the second PRTF stated that absent alcohol abuse, Plaintiff could perform sedentary work (Tr. 165-196). A Mental Residual Functional Capacity Assessment (MRFC) performed at the same time concluded that "without substance abuse," Plaintiff could perform unskilled work (Tr. 179, 181). In September, 2002 Plaintiff entered the Salvation Army's Turning Point Program, spending sixteen days in a detoxification program (Tr. 202). Therapist notes indicate that Plaintiff made "promising progress," recommending that Plaintiff pursue "individual counseling for grief and trauma resolution" (Tr. 202-203).

In September, 2003, David Dotson D.O., concluded that Plaintiff was disabled, due to an organic brain disorder, depression, schizophrenia, and parethesias of the hands due to frostbite (...