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Shepherd v. Astrue

January 3, 2008

REBECCA A. SHEPHERD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Leon Jordan United States District Judge

MEMORANDUM OPINION

This is an action for judicial review, pursuant to 42 U.S.C. § 405(g), of defendant Commissioner's final decision denying plaintiff's claim for disability insurance and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Security Act. For the reasons provided herein, defendant's motion for summary judgment [doc. 14] will be granted, and plaintiff's motion for summary judgment [doc. 10] will be denied.

I. Procedural History

Plaintiff was born in 1974. She applied for benefits in August 2003, claiming to be disabled by manic depressive disorder, post-traumatic stress disorder, personality disorder, seizures, "psychotic seizures," diabetes, asthma, bronchitis, a hernia, ulcers, "a small brain tumor above my right eye," "bone problems," and other unspecified respiratory difficulties. [Tr. 51, 58, 471]. She claimed that, "[I] can't sit and concentrate or stay up very long. [I] have seizures a lot." [Tr. 58]. Plaintiff alleged a disability onset date of July 12, 2003. [Tr. 51, 471]. Her applications were denied initially and on reconsideration.

Plaintiff then requested a hearing, which took place before an Administrative Law Judge ("ALJ") on November 16, 2004. Following plaintiff's testimony, the ALJ recessed the hearing so that he could refer plaintiff for a psychological evaluation. A second hearing was held on July 20, 2005, for the purpose of taking medical and vocational expert testimony.

On August 22, 2005, the ALJ issued a decision denying benefits. He concluded that plaintiff suffers from "epilepsy (controlled with medication), degenerative disc disease, with chronic pain and depression (with good response to treatment if the claimant is compliant with recommendations)," which are "severe" but not equal, individually or in concert, to any impairment listed by the Commissioner. [Tr. 22]. Terming plaintiff's subjective complaints "not totally credible," the ALJ found her to have the residual functional capacity ("RFC") at the sedentary level of exertion restricted to "lower level entry work, with few social demands and working with things rather than . . . people." [Tr. 22-23, 25]. Relying on vocational expert testimony, the ALJ determined that plaintiff remained able to perform a significant number of jobs existing in the regional and national economies. [Tr. 24, 26]. Plaintiff was accordingly deemed ineligible for benefits.

Plaintiff then sought, and was denied, review from the Commissioner's Appeals Council, despite the submission and consideration of additional medical records. [Tr. 6, 9].*fn1 The ALJ's ruling therefore became the Commissioner's final decision. See 20 C.F.R. §§ 404.981, 416.1481. Through her timely complaint, plaintiff has properly brought her case before this court. See 42 U.S.C. § 405(g).

II. Applicable Legal Standards

This court's review is confined to whether the ALJ applied the correct legal standards and whether his factual findings were supported by substantial evidence. 42 U.S.C. § 405(g); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The "substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Beavers v. Sec'y of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). In reviewing administrative decisions, the court must take care not to "abdicate [its] conventional judicial function," despite the narrow scope of review. Universal Camera, 340 U.S. at 490.

A claimant is entitled to disability insurance payments if she (1) is insured for disability insurance benefits, (2) has not attained retirement age, (3) has filed an application for disability insurance benefits, and (4) is under a disability. 42 U.S.C. § 423(a)(1). "Disability" is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423 (d)(2)(A).*fn2 Disability is evaluated pursuant to a five-step analysis summarized as follows:

1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, claimant is presumed disabled without further inquiry.

4. If claimant's impairment does not prevent him from doing his past relevant work, he is not disabled.

5. Even if claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that accommodates his residual functional capacity and vocational factors (age, education, skills, etc.), he is not disabled.

Walters, 127 F.3d at 529 (citing 20 C.F.R. § 404.1520). Plaintiffs bear the burden of proof during the first four steps. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at step five. See id.

III. Background

Plaintiff stands 5' 6" tall and weighs between 316 and 362 pounds. [Tr. 141-42, 355, 445]. She has worked at jobs including cashier, cleaner, census enumerator, laborer, parking lot attendant, and security officer. [Tr. 59, 96].

Plaintiff attended school into the eleventh grade and later obtained a G.E.D. [Tr. 519]. She claims that she dropped out of school in order to get married. [Tr. 423]. Elsewhere, however, she told the Commissioner that she quit school in 1991 [Tr. 121] and that she married her first husband in 1996. [Tr. 51].

This discrepancy, while minor in its overall relevance, is illustrative of the striking mass of inconsistencies appearing in plaintiff's statements to the Commissioner and to her various medical sources. As such, credibility is a central issue in this appeal. The administrative record has accordingly been summarized below in chronological sections, in an effort to more sharply contrast plaintiff's allegations versus the objective evidence present in the records of her medical providers.

IV. Plaintiff's Allegations v. Relevant Medical Evidence

A. 2003

1. Allegations

Plaintiff completed a "Disability Report - Adult" on August 19, 2003. She stated that she stopped working on July 12, 2003, because "my condition caused me to have to stop working and my doctor told me that [I] could not be getting stressed or upset." [Tr. 58].*fn3

Plaintiff completed an "Activities of Daily Living Questionnaire" on September 20, 2003. Therein, she stated that "people . . . don't want me to use the stove" because she forgets to turn it off and will "burn the house down." [Tr. 89, 91]. Plaintiff admittedly can drive, but only "if someone is with me[.]" [Tr. 90]. She purportedly needs help grocery shopping because the food she selects "isn't healthy." [Tr. 91]. Her regular diet includes bologna, "chips, ice cream, snack cakes and ravioli." [Tr. 90]. In addition to her allegations of seizures and mental infirmity, plaintiff stated that her activities are further restricted by difficulty sitting and walking and by occasional difficulty breathing outdoors. [Tr. 92]. She also claimed that "each day" she "can't breathe until I have been awake an hour or two." [Tr. 94]. Plaintiff takes her various medications only "if I remember," yet is admittedly able to adhere to a regular schedule of television programs "that I don't miss." [Tr. 92, 94].

Nancy Crumbley, who identifies herself as plaintiff's mother, completed a "Function Report - Adult - Third Party" on September 19, 2003.*fn4 The same form was also completed that date by Wanda Hartsell, who identifies herself as plaintiff's stepmother but who plaintiff identifies as her "dad's girlfriend." [Tr. 57, 79]. Each form portrays plaintiff as a "slow minded and slow moving" virtual invalid who can rarely be left alone while awake due to frequent seizures and who has "no interest in anything now but video games and T.V." [Tr. 71, 78, 86].*fn5

Ms. Crumbley and Ms. Hartsell stated that plaintiff's days are spent watching television, playing video games and "eat[ing] junk all day unless someone fixes [illegible]." [Tr. 70-71, 79]. According to Ms. Crumbley, plaintiff can grocery shop "2 times a week and it don't take long because she buys junk." [Tr. 73].

Ms. Crumbley asserted that plaintiff no longer cooks due to "dangerous" fire safety concerns. [Tr. 72]. Similarly, Ms. Hartsell claimed that plaintiff "[c]annot use stove safely." [Tr. 81]. Neither woman, however, expressed any fire safety concern regarding plaintiff's smoking - as would be expected if plaintiff in fact is as absent-minded as alleged. [Tr. 139, 143, 315].

According to Ms. Crumbley, plaintiff can perform only minimal housework because she "stumbles a lot[.]" [Tr. 72]. Ms. Hartsell offered a similar concern, stating that plaintiff "falls a lot." [Tr. 82]. According to plaintiff and Ms. Hartsell, plaintiff is "20 points from being blind in left eye." [Tr. 84, 92]. Ms. Crumbley claimed that plaintiff cannot pay attention to anything for more than one minute, cannot follow written instructions of more than two words, and essentially cannot follow oral instructions at all. [Tr. 75].

Ms. Crumbley and Ms. Hartsell asserted that plaintiff's seizures each last a minimum of ten minutes and as long as one to two hours. [Tr. 104-05]. Ms. Hartsell has admittedly never seen plaintiff have a seizure but purports to "have been there afterwards when the paramedics was taking her away." [Tr. 104].

2. Medical Evidence

On May 1, 2003, plaintiff was treated at the Baptist Hospital of Cocke County emergency room for a "possible seizure." [Tr. 260-61, 266]. Plaintiff explained that she had been on seizure medication briefly in 1999 but had stopped taking the medication in order to conceal her seizures from her employer. [Tr. 258]. The emergency room provided plaintiff a prescription for the seizure medication Tegretol and released her to return to work the following day. [Tr. 256].*fn6

A May 2003 MRI confirmed a twelve millimeter lipoma above the right eye, but with "[n]o acute intracranial process demonstrated." [Tr. 172].*fn7 An EEG performed the same day was "moderately slow" and thus "mildly and nonspecifically abnormal[.]" [Tr. 171].

Plaintiff had a follow-up appointment on May 12, 2003, with nurse practitioner Michael Manting. There, she explained that "[s]he quit taking her seizure medication when she was working at Dollywood driving a tram." [Tr. 142]. At her next appointment on June 2, 2003, there had been "[n]o recent seizure activity." [Tr. 141]. There were also no seizure complaints at her next appointments with FNP Manting in August and September 2003. [Tr. 137-39].

Plaintiff visited with ophthalmologist John Carson in June 2003 and mentioned worsening seizures. [Tr. 238]. Dr. Carson's examination "showed no evidence of diabetic retinopathy" and he observed no tumor around the right eye. [Tr. 239]. The following month, plaintiff again reported that her seizures were becoming more frequent and violent. [Tr. 237]. Despite a possible diagnosis of diabetes [Tr. 298], plaintiff reported that she does not check her blood sugar regularly. [Tr. 237]. Dr. Carson's review of plaintiff's MRI did confirm the lipoma above the right eye. [Tr. 237]. He referred plaintiff to a neurosurgeon for further review. [Tr. 236]. The court's review of Dr. Carson's largely handwritten notes does not reveal a diagnosis of cataracts or an assessment that plaintiff is "20 points from being blind in left eye."

Plaintiff then saw neurosurgeon Bert Meric on August 7, 2003, regarding "a long history of headaches with about 10 years of a seizure disorder, although she has not seen a neurologist." [Tr. 243]. Dr. Meric referred to plaintiff's description of her seizures as "somewhat ...


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