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Carney v. Colvin

United States District Court, N.D. Alabama, Western Division

February 7, 2017

TINCY CARNEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Tincy Carney brings this action pursuant to Title II and Title XVI of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security (“Commissioner”) denying her claims for a period of disability, disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). See also 42 U.S.C. §§ 405(g) and 1383(c). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         I. Proceedings Below

         Plaintiff filed her application for DIB and SSI benefits on June 21, 2011, alleging an onset date for her disability of March 15, 2010. (R-19). The Social Security Administration (“SSA”) initially denied her application on July 8, 2011 and again on August 16, 2011. (R-120-23). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on September 2, 2011. (R-168). The ALJ held a hearing on August 15, 2012. (R-93-119). The ALJ issued an unfavorable decision on September 26, 2012. (R-124-49). Plaintiff appealed the decision and on February 7, 2014, the Appeals Council remanded the case back to the ALJ. (R-150-54). A different ALJ held a second hearing on September 10, 2014. (R-54-92). The second ALJ issued his unfavorable decision on January 29, 2015. (R-15-53). The Appeals Council denied review on April 19, 2016. (R-1-6).

         Plaintiff was 48 years old at the onset of her alleged disability, yet had aged past 50 at the time of the final decision. (R-268). Plaintiff alleges disability on the following grounds: degenerative disc disease; depressive disorder; diabetes mellitus, type II; respiratory deficits; calcaneal spur in the left ankle; somatoform; hypertension; urinary tract infections; and a disorder not otherwise specified (NOS). (R-21). Plaintiff also complains of severe lower back pain and sciatica. (R-828-36). Dr. Henderson, Plaintiff's treating physician of twenty years, opined that Plaintiff can sit two hours and stand and walk less than one hour out of eight; that she can occasionally perform pushing and pulling movements and gross manipulation; that she can rarely climb ladders or stairs, perform fine manipulation, or reach, including overhead; that she can never bend, stoop, or work with or around hazardous machinery; and that she would miss work more than three times a month as a result of her disability. (R-828-39). Dr. Henderson also opined that Plaintiff's pain would cause her to become distracted from her tasks in a work environment and likely abandon them. (R-828-36). A July 15, 2010 x-ray showed evidence of equivocal spinal stenosis in addition to the previously mentioned degenerative disc disease. (R-561-637).

         Based on the evidence of examining psychologist John R. Goff, Ph.D., Plaintiff has a full-score IQ of 79 and can read at a second grade level. (R-731-38). Dr. Goff views her as functionally illiterate and diagnosed her with a likely learning disability. (Id.). Plaintiff had to take an oral exam when testing for her driver's license rather than the traditional written test. (R-61). She also attested that her employer filled out all of her paperwork when Plaintiff had gainful employment. (R-67). However, the State Claims Agency reported no discernible limitation in Plaintiff's “capacity for reading, understanding, coherency, concentration, or writing.” (R-312). In that same report, the State Claims Agency noted that Plaintiff said she “did paper work-kept up with time cards” and completed reports and employed technical skills as a part of her previous job at a gas station. (Id.).

         Plaintiff worked at a gas station for five years leading up to the onset date for her alleged disability. (R-65). The gas station came under new management in March 2010, at which point the new owner let Plaintiff go as a result of her lack of qualifications. (Id.). Plaintiff testified that the previous owner had kept her on the payroll as result of their longstanding friendship. (Id.). The previous owner felt that he could trust Plaintiff more than his other employees. (Id.). Plaintiff testified that she stopped working both because the new owner fired her and due to her increasing back pain. (R-66). Plaintiff stated under oath that she fell more often and more frequently around the time that the owner fired her and that she found it increasingly difficult to hold things. (Id.). Plaintiff made no attempts to work in the period following her firing, partially because she could not fill an application out on her own. (Id.). She also doubted that anyone would hire her given her prescription for Lortab. (R-63).

         Plaintiff lives with her husband and has frequent contact with her daughter and her parents. (R-69). Plaintiff's daily activities include watching television, particularly The Walking Dead, folding clothes, and sleeping on her husband's recliner. (Id.). Her daughter, mother, and husband all occasionally take Plaintiff grocery shopping. (Id.). Plaintiff attended school through the eighth grade, after which she left to work at the behest of her stepfather. (R-61). She does not possess a GED. (Id.). Plaintiff now walks with the support of a cane that Dr. Henderson prescribed for her in 2014. (R-62). Dr. Henderson also prescribed Plaintiff a back brace in 2012. (R-68). Plaintiff takes insulin for her diabetes. (R-69-70). She claims that she experiences tingling pain and numbness from her diabetes. (R-70). Plaintiff also has had to frequently change her medication for diabetes and can only take her insulin intermittently because it makes her ill. (R-70-1).

         II.ALJ Decision

         Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has a medically determinable impairment or a combination of medical impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant's impairment meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).

         If the claimant does not fulfill the requirements necessary to be declared disabled under the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must first determine the claimant's residual functional capacity (“RFC”), which refers to the claimant's ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant is able to perform any other work commensurate with her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the existence, in significant numbers, of jobs in the national economy that the claimant can do given her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).

         Here, the ALJ found that Plaintiff meets the insured status requirements of the SSA through December 31, 2015. (R-21). He also found that Plaintiff has not engaged in substantial gainful activity following the onset period of March 2010 for her alleged disability. (Id.). The ALJ noted that Plaintiff has the following “severe” impairments: obesity; disc protrusion; degenerative disc disease and equivocal spinal stenosis, lumbar spine; some deterioration, thoracic spine. (Id.). He also observed that Plaintiff has the following “nonsevere” impairments: depressive disorder; diabetes mellitus, type II; respiratory deficits; calcaneal spur in the left ankle; somatoform; hypertension; history of recurring urinary tract infection of unclear etiology with some dysuria and pain. (Id.). The ALJ referenced her records suggesting kidney disease, but also noted that a specialist found no evidence that she suffered from that affliction. (Id.).

         The ALJ highlighted the DSM IV, in use at the time of Dr. Goff's examination of Plaintiff, and its definition of malingering as:

1. “Medicolegal context for presentation (e.g. The person is referred by an attorney to the clinician for examination)
2. Marked discrepancy between the person's claimed stress or disability and the objective findings…”

(R-22) (emphasis in original). The ALJ concluded that the above “guidance” is relevant here because Plaintiff's attorney sought psychological examination on the eve of the hearing. (R-22). The ALJ also noted that he interprets the second “prong” of the DSM's definition as pertaining to differences observed between the objective medical record and the opinion of a third party consultant. (Id.). Based upon this interpretation, and to assess issues related to malingering, the ALJ found it appropriate to review Plaintiff's scholastic record while she attended school. (Id.). Plaintiff's educational record does not show any evidence of special education. (Id.). Although her grades were unexceptional, Plaintiff did not fail any classes in the sixth grade and achieved her highest grade in writing. (Id.). Plaintiff achieved a C in English in the seventh grade, although she followed this performance with an F in the same subject the subsequent year. ...


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