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Henderson v. Colvin

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

June 23, 2017

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.



         Plaintiff Lafacadio Henderson (“Plaintiff” or “Henderson”) brings this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act”). Plaintiff seeks review of the decision by the Commissioner of the Social Security Administration (“Commissioner”) to deny his claim for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) (Tr. 160-69). See also 42 U.S.C. §§ 405(g), 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 his applications for DIB and SSI on March 21, 2013, alleging disability since the last day of his employment on October 10, 2012. (Tr. 160). Plaintiff later amended his application to reflect that his employment ended due to the end of his contract rather than as a result of his impairments.[1] Plaintiff's amended allegations regarding his onset date indicate that he became disabled on May 1, 2013.[2] Id.

         On April 19, 2013, the Social Security Administration denied Plaintiff's application. (Tr. 54). Plaintiff then filed a Request for Hearing on May 18, 2013 and received a hearing before Administrative Law Judge George W. Merchant (“ALJ”) on November 3, 2014 (Tr. 11-50, 72-74, 98-100). On January 8, 2015, the ALJ determined that plaintiff was not disabled under the criteria set forth in 20 C.F.R. §§ 404.1520 and 416.920. (Tr. 70-87). On March 13, 2015, Plaintiff requested that the Appeals Council review the ALJ's decision (Tr. 9-10). The appeal was denied on March 24, 2016. (Tr. 3-8). Accordingly, the final decision of the Commissioner is properly before the court for appellate review.[3]

         At the time of the hearing, Plaintiff was 43 years old. (Tr. 18). Over the past fifteen years, Plaintiff has worked as a police officer (1994-1999), a home remodeler (2000-2005), and a cable lubrication specialist in construction (2005-2012). (Tr. 205). Plaintiff alleges that since 2008, he has felt sharp and constant leg pain from hip to ankle. (Tr. 209). Plaintiff states that the pain prevents him from sitting for more than twenty consecutive minutes or sleeping for more than two hours. (Tr. 14, 29). He states that he is prescribed “serious pain medications, ” including Hydrocodone, Ibuprofen, Methocarbomol, and Naproxen to treat his pain. (Tr. 15, 27). Plaintiff uses a cane and back brace to walk and goes to physical therapy every few weeks. (Tr. 29-30). Plaintiff alleges that in 2012, he was forced to stop work as a cable lubrication specialist because of sciatic impingement with bilateral leg pain, degenerative disc disease, and osteoarthritis. (Tr. 54, 205, 20). Plaintiff further alleges that he must frequently change positions or get up at night because his pain is too severe, he has a limited range of motion making it difficult to shower or dress, he cannot work outside, lift, or bend over, and must take frequent breaks in order to complete tasks. (Tr. 217-25).

         Plaintiff receives his medical care primarily from the Birmingham Veteran's Administration Medical Center (“VAMC”). (Tr. 272-432, 433-684). On November 10, 2011, Plaintiff's Primary Care Physician, Dr. Carol E. Crowley, determined that he had left lumbar radiculopathy resulting from moderate diffuse disk bulge. (Tr. 275-76). Plaintiff entered physical therapy, which reduced his pain from constant to intermittent. (Tr. 473). On February 10, 2013, Plaintiff described his back as only “occasionally stiff” and asked Dr. Crowley if he should file for disability. (Tr. 590). Dr. Crowley advised Plaintiff to continue taking Ibuprofen and going to physical therapy, but stated that it was Plaintiff's decision whether to return to work. Id.

         Plaintiff returned to physical therapy but reported limited mobility requiring use of a cane, back brace, TENS unit, [4] and heel lift. (Tr. 518, 520, 721). According to Plaintiff, his condition prevents him from engaging in his outdoor hobbies, including hunting, fishing, horseback riding, and gardening. (Tr. 222). Nevertheless, Plaintiff cares daily for a Tennessee Walker horse (Tr. 40-41), spent two days in May 2014 cutting up fallen trees (Tr. 781), recently went turkey hunting (Tr. 921), and was able to travel out-of-state to deal with his father's estate (Tr. 911).

         Plaintiff reported an increase in movement at a November 8, 2014 physical therapy visit, although no decrease in his level of pain. (Tr. 509). One month later, Plaintiff reported “getting somewhat better.” (Tr. 501). On January 14, 2013, Dr. Sean Hatton examined Plaintiff for a Compensation and Pension (“C&P”) examination at the Birmingham VAMC. (Tr. 543-559). Dr. Hatton determined that Plaintiff's impairment “would prevent employment of a physical, but not a sedentary nature.” (Tr. 555).

         Plaintiff served as a Marine from 1989 - 1993, including six and a half months in Somalia with the 13th Marine Expeditionary Unit. (Tr. 32-33). On August 27, 2014, Plaintiff's physical examination was normal, but Plaintiff reported for the first time that his military combat in Somalia had been causing him to have nightmares. (Tr. 891). On September 9, 2014, Dr. Adeel Rabbani of the Mental Health Clinic at the VA examined Plaintiff; Plaintiff reported that the nightmares occurred immediately after his return from Somalia. (Tr. 890). Plaintiff testified that he was engaged in military combat in Somalia, but the record reflects that he served in a non-combat role. (Tr. 286).

         Plaintiff alleges that his nightmares subsided a year after he returned from Somalia, but recently began reoccurring multiple times per week because of a hunting accident in August 2014. (Tr. 890, 901). Dr. Rabbani, a psychiatrist, diagnosed Plaintiff with anxiety, depression, and unresolved issues related to his combat service. (Tr. 15, 894-895). Dr. Rabbani noted that Plaintiff's “depression is constant, ” and assigned Plaintiff a Global Assessment of Functioning (“GAF”) score of 55, which indicates mild psychiatric symptoms. (Tr. 890). Dr. Rabbani also noted that Plaintiff admitted to “binge drinking during nail-biting football games” and has a 2012 DUI conviction. (Tr. 892). Plaintiff was prescribed and began taking Sertraline and Trazodone to manage his mental impairment. (Tr. 38, 900). On September 18, 2014, Plaintiff returned to the Mental Health Clinic, but showed no changes in his mental status. At an October 16, 2014 visit to the clinic, however, Plaintiff was diagnosed with rule-out post-traumatic stress disorder (PTSD).[5] (Tr. 900).

         Following that diagnosis, Plaintiff's medication schedule was changed to include Zoloft, Prazosin, Mirtazapine, and an increased dose of Sertraline. (Tr. 901-02). Plaintiff reported “feeling hopeful about his new medicines” (Tr. 897) and Plaintiff's wife reported an improved mood with the addition of the Zoloft (Tr. 901). Because the record demonstrates Plaintiff improved with treatment, the ALJ found Plaintiff's psychiatric impairments to be non-severe and considered only Plaintiff's physical impairments to be severe for the purposes of determining his disability.

         With respect to Plaintiff's physical impairments, Vocational Expert Dr. Mary Kessler testified that Plaintiff's work as a cable lubrication specialist and police officer qualifies as high-to-medium skilled. (Tr. 47). Dr. Kessler testified that Plaintiff's past work is no longer a viable option for him, given that he cannot operate foot control maneuvers using his left side, cannot climb any ladders, ropes or scaffolds, and is vulnerable to unprotected heights and uneven terrain. (Tr. 47). While Dr. Kessler opined that sedentary, unskilled jobs are available to Plaintiff, she also testified that there is no tolerance for workers requiring additional rest breaks or pain-related, unscheduled absenteeism in a competitive employment environment. (Tr. 48).

         II. ALJ Decision

         The Act uses a five-step sequential evaluation process to determine a claimant's disability. 20 C.F.R. § 404.1520(a) and 416.920(a). First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b) and 416.920(b). Substantial gainful activity is work done for pay or profit that requires significant physical or mental activities. 20 C.F.R. § 404.1572(a-b) and 416.972(a-b). If the claimant has employment earnings above a certain threshold, the ability to engage in substantial gainful activity is generally presumed. 20 C.F.R. § 404.1574, 404.1575, 416.974, and 416.975. If the ALJ finds that the claimant engages in substantial gainful activity, then the claimant cannot claim disability, regardless of a medical condition or age, education, and work experience. 20 C.F.R. § 404.1520(b) and 416.920(b).

         Second, the ALJ must determine whether the claimant has a medically-determinable impairment that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 404.1520(c) and 416.920(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 functionally equals an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. If the criteria for impairment is met or functionally equal, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii) and 416.920(a)(4)(iii).

         If the impairment is not met or is not functionally equivalent, the ALJ will assess the claimant's residual functional capacity (“RFC”) to perform, given their impairment, in a work setting. 20 C.F.R. §§ 404.15245(a)(1) and 416.920(a)(1). The RFC is based on medical and other evidence in the record. 20 C.F.R. §§ 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). The ALJ makes an assessment about a claimant's RFC using a two-step process that determines: (1) whether there is an underlying medically-determinable impairment that could reasonably be expected to produce the claimant's pain; and (2) the extent to which the claimant's symptoms would limit claimant's functioning. 20 C.F.R. §§ 404.1545(e) and 416.920(e). To determine the limiting effect of the claimant's impairment, the ALJ must consider the credibility of the claimant's statements about their pain in the context of the record. 20 C.F.R. §§ 404.1529(c)(3) and 416.920(c)(3).

         Once the ALJ has determined Plaintiff's RFC, the ALJ will consider in step 4 whether the claimant has the RFC to perform the requirements of his past relevant work. 20 C.F.R. § 404.1520(f) and 416.920(f). If the claimant is found capable of performing past relevant work, then the claimant is not disabled. Id. If the claimant is unable to perform past relevant work or has no past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v) and 416.920(a)(4)(v). In the fifth step, the ALJ will determine whether the claimant is able to perform any other work in the national economy that is commensurate with their RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g). Although the claimant must still prove disability, at this point the burden of production shifts from the claimant to the ALJ. The ALJ must provide evidence, in significant numbers, of jobs in the national economy that the claimant can do, given their RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c), 416.912(g) and 416.960(c).

         Here, the ALJ determined as a threshold requirement that the claimant met the insured status requirements of 20 C.F.R. §§ 216(i) and 223 of the Act because he remained insured through June 30, 2015. Nevertheless, for the reasons noted below, the ALJ determined that the claimant is not entitled to benefits under the 5-step sequential evaluation process.

         First, Plaintiff has not engaged in substantial gainful activity since his amended alleged onset date of May 1, 2013. Plaintiff amended his initial alleged onset date of October 10, 2012 because, from the fourth quarter of 2012 through the second quarter of 2013, Plaintiff filed for and received Unemployment Compensation benefits. (Tr. 77). Plaintiff's representative admitted that the Plaintiff's work initially stopped not because of his impairments, but because he reached the end of his contract. The disparity in dates and the requisite amendment undermines Plaintiff's credibility, as does Plaintiff's failure to report earnings received from ...

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