United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF DECISION
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
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.
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. Plaintiff's amended allegations
regarding his onset date indicate that he became disabled on
May 1, 2013. Id.
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
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.
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.
returned to physical therapy but reported limited mobility
requiring use of a cane, back brace, TENS unit,
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).
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.”
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).
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). (Tr. 900).
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.
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).
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).
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).
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).
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
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
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 ...