United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF DECISION
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
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
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).
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).
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.).
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.
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.
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. §
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).
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.
highlighted the DSM IV, in use at the time of Dr. Goff's
examination of Plaintiff, and its definition of malingering
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
(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. ...