Robinson v. Comm'r of Soc. Sec.

426 F.Supp.3d 411

Leander ROBINSON, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 18-cv-13263

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

Signed December 9, 2019

ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 10), (2) DENYING DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF NO. 12), AND (3) REMANDING THIS ACTION FOR FURTHER ADMINISTRATIVE PROCEEDINGS

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

In this action, Plaintiff Leander Robinson challenges the denial of his application for Supplemental Security Income benefits under the Social Security Act. (See Compl., ECF No. 1.) Robinson and Defendant Commissioner of Social Security have now filed cross-motions for summary judgment. (See Motions, ECF Nos. 10, 12.)

On October 24, 2019, the assigned Magistrate Judge issued a Report and Recommendation in which he recommended that the Court grant Robinson's motion in part, deny the Commissioner's motion, and remand this action to the Commissioner for further administrative proceedings. (the "R & R"). (See R & R, ECF No. 13.) At the conclusion of the R & R, the Magistrate Judge informed the parties that if they wanted to seek review of his recommendation, they needed to file specific objections with the Court within fourteen days. (See id. , PageID.605.)

The Commissioner has not filed any objections to the R & R. The failure to object to an R & R releases the Court from its duty to independently review the matter. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, the failure to file objections to an R & R waives any further right to appeal. See Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991) ; Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).

Accordingly, because the Commissioner has failed to file any objections to the R & R, IT IS HEREBY ORDERED that the Magistrate Judge's recommendation to grant Robinson's Motion for Summary Judgment in part and deny the Commissioner's Amended Motion for Summary Judgment is ADOPTED .

IT IS FURTHER ORDERED that (1) Robinson's Motion for Summary Judgment (ECF No. 10) is GRANTED IN PART as set forth in the R & R, (2) the Commissioner's Amended Motion for Summary Judgment (ECF No. 12) is DENIED , and (3) this action is REMANDED to the Commissioner for further administrative proceedings consistent with the R & R and this order.

REPORT AND RECOMMENDATION

R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Leander Robinson ("Plaintiff") brings this action under 42 U.S.C. § 405(g) challenging a final decision of Defendant Commissioner denying his application for Supplemental Security Income ("SSI") under the Social Security Act. Both parties have filed summary judgment motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that Plaintiff's Motion for Summary Judgment [Docket #10] be GRANTED to the extent that the case be remanded to the administrative level for further proceedings, and that Defendant's Motion for Summary Judgment [Docket #12] be DENIED.

I. PROCEDURAL HISTORY

On December 18, 2015, Plaintiff filed an application for SSI, alleging disability as of October 12, 2015 (Tr. 126). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on October 12, 2017 in Oak Park, Michigan before Administrative Law Judge ("ALJ") Timothy C. Scallen (Tr. 14, 26). Plaintiff, represented by attorney Salena Choice, testified (Tr. 29-39), as did Vocational Expert ("VE") Helen F. Topcik (Tr. 39-47). On March 9, 2018, ALJ Scallen found that Plaintiff was not disabled (Tr. 14-21). On August 28, 2018, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on October 18, 2018.

II. BACKGROUND FACTS

Plaintiff, born October 25, 1959, was 58 when the ALJ issued his decision (Tr. 21, 126). He received a GED and worked previously as a school hall monitor and mental health technician (Tr. 156-157). In his application for benefits, he alleges disability due to a heart attack, breathing problems, fatigue, chest pain, right leg numbness, dizziness, and depression (Tr. 155).

A. Plaintiff's Testimony

Plaintiff offered the following testimony:

His last job before stopping work in October, 2015 was at a health facility for senior citizens (Tr. 29). Although the facility was for mental health problems, his job was to provide the patients with physical assistance (Tr. 30). His job also required shoveling snow, mopping, and cleaning, and required him to lift up to 40 pounds (Tr. 30). He stopped working after experiencing a heart attack in October, 2015 (Tr. 31). After the heart attack, he had a cardiac stent and defibrillator implanted (Tr. 31). Since the surgeries, he experienced anxiety, fatigue, and some shortness of breath (Tr. 31). He took blood thinners, aspirin, and cholesterol-reducing drugs (Tr. 32). He experienced the medication side effect of a "needle and pin" sensation in his right leg (Tr. 33). Since undergoing surgery, he no longer shoveled snow, mowed grass, or performed other high exertion activities (Tr. 34). He was unable to lift more than 15 pounds, sit for more than one hour, or stand for more than 30 minutes (Tr. 34). He needed to sit for 10 minutes after standing for 30 (Tr. 34). He was unable to walk more than two blocks without experiencing fatigue (Tr. 34). He was unable to ascend or descend more than one flight of stairs (Tr. 35). He had not attempted to stoop, kneel, crouch, or crawl since the heart attack (Tr. 35). He did not experience problems using his upper extremities or taking care of his personal needs (Tr. 36). He performed minimal household chores but was able to grocery shop with his wife (Tr. 36). He did not perform outdoor chores (Tr. 37). He spent most of his day watching television and occasionally performed a light household chore (Tr. 37).

In response to questioning by his attorney, Plaintiff reported that he did not sleep more than four hours altogether at night (Tr. 37). He experienced between three and four bad days a month due to anxiety and stress resulting from his physical limitations (Tr. 38). He coped with anxiety and stress by reading the Bible (Tr. 38).

B. Medical Evidence

1. Treating Sources

On October 9, 2015, Plaintiff sought emergency treatment for shortness of breath (Tr. 240, 253). Blood testing was positive for a myocardial infarction (Tr. 246). A chest x-ray was consistent with a diagnosis of congestive heart failure (Tr. 262). A catheterization showed an artery wall abnormality requiring a cardiac stent implantation (Tr. 315).

Followup records from the next month note Plaintiff's denial of shortness of breath and the ability to walk up to two blocks without symptoms (Tr. 315). A physical examination was unremarkable (Tr. 316). Later the same month, Redman Uddin, M.D. noted Plaintiff's report of lower extremity numbness and fatigue (Tr. 329-330).

In January, 2016, Ahmed Rashed, M.D. completed an assessment of Plaintiff's physical abilities, noting the symptoms of shortness of breath on exertion and chest pain but a "good" prognosis with medical treatment (Tr. 343). He found that Plaintiff could sit for up to four hours and stand/walk for two in an eight-hour workday (Tr. 344). He found that Plaintiff would be required to walk for five minutes every ninety minutes and would require unscheduled breaks every three to four hours (Tr. 344). He found that Plaintiff could lift 10 pounds frequently and 20 occasionally (Tr. 344). He limited Plaintiff to occasional postural activity except for frequent twisting (Tr. 345). He found that Plaintiff would be limited to gross and fine manipulative activity 50 percent of the workday and would be absent from work three days a month (Tr. 345).

June, 2016 treating records following a defibrillator implantation note Plaintiff's denial of edema, chest pain, palpitation, or problems with the device (Tr. 378, 438, 466). Plaintiff reported that he could walk one to two blocks (Tr. 378). Followup notes from the next month reflect similar findings (Tr. 406, 456). January, 2017 records note that following the 2015 stent placement, Plaintiff's ejection fraction did not improve, leading to the implantation of the defibrillator (Tr. 420). Plaintiff denied edema, chest pain, palpitations, or dizziness (Tr. 420, 447). May, 2017 records by Mobeen ur Rehman, M.D. note that Plaintiff was asymptomatic and was able to walk for over a mile each day (Tr. 441).

2. Non-Treating Sources

In April, 2016, Dr. Cynthia Shelby-Lane performed a consultative physical examination, noting Plaintiff's report that he currently had an "ejection fraction" of 10 to 20 percent and was scheduled for a defibrillator implantation the following month (Tr. 349). He reported the side effect of right lower extremity radiculopathy and neuropathy resulting from the use of anti-cholesterol medication (Tr. 349). He reported a history of chronic shortness of breath and depression, adding that he had not received treatment for depression (Tr. 350).

Dr. Shelby-Lane noted that Plaintiff was able to get on and off the examining table slowly, squat to 70 percent, and bend to 80 percent (Tr. 351). She noted normal range of motion studies except for a limited range of bilateral forward flexion of the hips (Tr. 353). A neurologic examination was unremarkable (Tr. 351). She opined that Plaintiff required a mental health evaluation "per DDS regarding ... depression" (Tr. 351). She noted no manipulative limitations (Tr. 355). A June, 2016 pulmonary function report notes that Plaintiff had just had a defibrillator implanted (Tr. 366).

In July, 2016, Twaide Langham, D.O. performed a non-examining assessment of the treating records on behalf of the SSA, finding that due to chronic pulmonary insufficiency and joint dysfunction (Tr. 57), Plaintiff was limited to...