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Hickman v. Social Security Administration

United States District Court, M.D. Tennessee, Columbia Division

December 5, 2017

SHEENA LEIGH HICKMAN, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.

          The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge.

          REPORT AND RECOMMENDATION

          JOE B. BROWN UNITED STATES MAGISTRATE JUDGE.

         This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration (SSA) through its Commissioner denying plaintiff's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 416(I) and 423(d), and Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 13) be GRANTED IN PART and DENIED IN PART, and that the Commissioner's decision be REMANDED for the Administrative Law Judge (ALJ) to conduct a proper credibility assessment, and reconsider his disability determination based on that reassessment.

         I. PROCEDURAL HISTORY[1]

         Plaintiff filed applications for DIB and SSI on June 17, 2013, alleging a disability onset date of January 15, 2012 in both instances. Plaintiff alleged disability due to vision problems in both eyes and a learning disorder. (Doc. 10, pp. 131, 133, 262) Both claims were denied initially on October 31, 2013, and upon reconsideration on February 28, 2014. (Doc. 10, pp. 100-01, 143-46)

         Plaintiff requested a hearing before an ALJ on April 30, 2014. A hearing was held before ALJ Marty Turner on September 29, 2015. (Doc. 10, pp. 27-69) Plaintiff was represented at the hearing by attorney Jane Jennings. (Doc. 10, p. 28) Charles Wheeler, an impartial vocational expert (VE), testified at the hearing. (Doc. 10, pp. 28)

         The ALJ entered an unfavorable decision on October 30, 2015 (Doc. 10, pp. 9-26), after which plaintiff filed a request with the Appeals Council on December 3, 2015 to review the ALJ's decision (Doc. 10, pp. 7-8). The Appeals Council denied plaintiff's request on October 4, 2016. (Doc. 10, pp. 1-6)

         Plaintiff brought this action through counsel on November 2, 2016 (Doc. 1), following which she filed a motion for judgment on the administrative record on February 13, 2017 (Doc. 13). The Commissioner responded in opposition on March 13, 2017. (Doc. 14) Plaintiff did not reply. This matter is now properly before the court.

         II. EVIDENCE[2]

         A. Documentary Evidence

         Dr. Bonnie Taylor, O.D., completed an Eye Report for Children with Visual Problems on August 8, 1994 (Dr. Taylor's 1994 Eye Report or the 1994 Eye Report) (Doc. 10, p. 344) that was referred to in a December 1, 1994 Functional Vision Report (the 1994 Vision Report) signed by Nancy Murdock, “Certified Teacher of the Visually Impaired.”[3] (Doc. 10, pp. 341-43) The 1994 Vision Report attributes the following clinical observations to Dr. Taylor's 1994 Eye Report:

S[h]eena has possible ocular albinism with nystagmus, astigmatism, and megalocornea.[4] . . . Albinism caused abnormal development of the central reading vision between 20/60 - 20/80 in both eyes. This means Sheena can see at a distance of 20 feet what a normal eye can see at 60 feet. A person with albinism has a severe sensitivity to light. Sheena also has nystagmus, an[] involuntary rapid movement of the eyeball and megalocornea which is an abnormality w[here] the front third of the eye is larger than normal.

(Doc. 10, p. 341) Noting that plaintiff's near vision was “20/50 6" [f]rom [her] eyes, ” Ms. Murdock summarized the results of the 1994 Vision Report as follows: “The results of the Functional Vision Assessment and eye report from Dr. Taylor certify Sheena as a visually impaired student.” (Doc. 10, p. 342-43)

         The Giles County High School records (the school records) are before the court for the period August 8, 1997 to May 29, 2003. (Doc. 10, pp. 220-56) These records include school progress reports (Doc. 10, pp. 220-46, 252-53, 255-56), an Observations-Impressions-Plan completed by the Southern College of Optometry(the Southern College of Optometry) on August 8, 1997 (Doc. 10, p. 247), sections I-IV and VI of a second Functional Vision Report dated April 16, 2001 (the 2001 Vision Report) signed by Ms. Murdock (Doc. 10, pp. 248-50), and a vision exam dated December 6, 2000 signed by Kelly White RN (otherwise unidentified) (Doc. 10, p. 251). The 2001 Vision Report notes that plaintiff's “vision has remained stable since” the first grade, that plaintiff “can see regular print when brought within 4-6" of her eyes, ” that she “needs to be allowed to tilt her head and move the materials to a comfortable position to provide her best focusing ability, ” but that she nevertheless had “an interest in the possibility of driving a car.” (Doc. 10, p. 250)

Note: The record shows that plaintiff went to work after high school cleaning tables at the Hickory House restaurant (the Hickory House) in 2004, and worked there through most of 2010. (Doc. 10, pp. 217-18) The record shows that plaintiff left the Hickory House in late 2010 to take a job with National Health Corporation (NHC) doing housekeeping and laundry, and that she remained with NHC until her employment was terminated in early 2012. (Doc. 10, p. 218)

         Dr. Laura Orton, O.D., examined plaintiff in May 2013.[5] (Doc. 10, pp. 352-54) Dr. Orton reported on May 14, 2013 that plaintiff's last eye exam was “10 years [ago] in Columbia, ” but did not identify who performed the examination. (Doc. 10, p. 352) Dr. Orton characterized plaintiff's chief complaint on May 14 as “Vision blurred dist & near - has to turn head sideways to read or put make up on - OS[6] always bad OS moves back & forth - can't see to drive or watch TV.” (Doc. 10, p. 352) The May 14 record indicates that Dr. Orton prescribed a “trial” contact lens for plaintiff's left eye. (Doc. 10, p. 352) Dr. Orton noted two weeks later on May 28, 2014 that “Pt reports vision better & CL [contact lens] comfortable OS very light sensitive [with] CL.” (Doc. 10, p. 354)

         Dr. Orton subsequently completed a Tennessee Department of Safety Vision Examination Form the following month on June 14, 2013 in connection with plaintiff's June 10, 2013 application for a Tennessee driver's license. (Doc. 10, pp. 355-57) Dr. Orton reported that plaintiff wore contacts, she “can't see near or far vision, ” she had “poor night vision, ” her best possible corrected vision was 20/70 in her right eye, 20/60 in her left eye, and 20/60 with both eyes, that other treatments would not “improve [the] . . . described conditions for [her] eyes, ” and that plaintiff was not “currently undergoing . . . treatment to improve [her] vision.” (Doc. 10, p. 355)

         Michael Loftin, Ph.D., examined plaintiff consultively on September 24, 2013. (Doc. 10, pp. 358-63) No records were available during the examination. (Doc. 10, p. 358) Dr Loftin recorded the following subjective observations:

[Ms. Hickman] appears able to follow instructions; both written and spoken. . . . She showed . . . poor basic math skills. She was able to complete simple addition, subtraction, and multiplication, but not division, tasks in her head. She showed a good capacity for abstract thinking and understanding. . . . Ms. Hickman states that she manages her finances with little or no difficulty.

(Doc. 10, pp. 361-62) Dr. Loftin diagnosed plaintiff with a mathematics disorder and borderline intellectual functioning. (Doc. 10, p. 363)

         Plaintiff's attorney referred her to Douglas Mays, Ed.D., who examined plaintiff on August 26 and September 2, 2015. (Doc. 10, pp. 367-86) Dr. May's diagnostic impression was that plaintiff suffered an “Intellectual Disability.” (Doc. 10, p. 375) Dr. Mays also made the following additional observation regarding plaintiff's vision:

Her visual impairment certainly adds to the practical problems she would encounter establishing and sustaining meaningful employment. I would encourage the reader to visualize any particular job Ms. Hickman could attempt to perform, given her level of training and education; which would allow her to routinely place her eyes between four and six inches of given visual material. For those jobs which could be performed using this particular coping skill; for which of these does Ms. Hickman possess the requisite cognitive and academic skills to meaningfully complete them? It is my sense that the convergence of this woman's intellectual, cognitive processing, achievement, and visual impairments sum to exclude an answer which points to any category of traditional, meaningful and sustained employment.

(Doc. 10, p. 375) Dr. Mays concurred in Dr. Loftin's mathematics disorder diagnosis. (Doc. 10, p. 371) The ALJ gave“significant weight” to Dr. Mays' opinion pertaining to his psychological evaluation, but gave “no weight” to his vision-related opinion. (Doc. 10, p. 18)

         Betsy Booth, plaintiff's former co-worker, sent an email to plaintiff's attorney on August 31, 2015 in which she wrote the following:

I was employed at the Hickory House Restaurant . . . for 16 years. . . . During that time I worked with Sheena Hickman for about six or seven years. Sheena . . . struggle[d] daily because of her disabilities. She was very slow and had a hard time seeing out of one eye. We would have to go behind her to clean tables that she already had cleaned or remove silverware that she had put on peoples tables that were still dirty. . . .

(Doc. 10, p. 327)

         B. Testimonial Evidence

         1. Witness Testimony

         Plaintiff testified at the hearing upon questioning by the ALJ that: she was fired from NHC because she was too slow and unable to clock in and out using the computer (Doc. 10, pp. 34-35); she had never had a driver's license because she was unable to pass the vision test (Doc. 10, p. 36); her grandmother and cousin drove her wherever she needed to go (Doc. 10, p. 36); she could not tell time using a digital clock if it were too small (Doc. 10, p. 38); she was unable to tell time using an analog clock (Doc. 10, p. 38); her brother and cousin took her to the drag races “every other weekend” (Doc. 10, p. 45); her cousin accompanied her when she walked in the neighborhood, but she did not walk in the neighborhood alone (Doc. 10, p. 46); she could use a cell phone if the telephone numbers had been pre-programmed (Doc. 10, p. 47).

         Plaintiff testified upon questioning by counsel that: she could not look at a clock and tell that she had 20 minutes to get somewhere (Doc. 10, p. 38); she “wasn't getting the rooms cleaned” at NHC “because [she] didn't see the dirt they did” and she“was too slow” (Doc. 10, p. 39); when she tried to clean for an aunt, she had “to go back over what [she] was doing” because she was “missing spots” (Doc. 10, p. 39); when she worked at the Hickory House she was “having to go back over the tables or the other employe[e]s were going back over them” (Doc. 10, p. 40); she had sit at “arm's length” from the television to watch it (Doc. 10, pp. 40-41); she had to “get real close to see” a computer (Doc. 10, p. 41); her grandmother had to read her medication labels to her, or they were kept in “an eight print label box” (Doc. 10, p. 41); she was unable to read the labels in her clothes or recipes on the back of a box (Doc. 10, p. 42); she was unable to tell if someone gave her the correct change (Doc. 10, p. 42); she was unable to see to sew a button (Doc. 10, p. 43); her grandmother had to read her mail for her (Doc. 10, p. 44); she could wash clothes but not iron them because she could not see the dial on the iron (Doc. 10, p. 44); she prepared her meals using a microwave because she could not see the controls on the stove (Doc. 10, p. 44).

         Plaintiff's grandmother testified upon questioning by counsel that: she had to take plaintiff “everywhere” she went “unless [her] other grand daughter t[ook] her” (Doc. 10, p. 52); she had to read “any mail” that plaintiff received (Doc. 10, p. 52); she took plaintiff grocery shopping and helped her with her groceries “[a] lot of times” (Doc. 10, p. 52); plaintiff prepared everything in the microwave, and did not use the stove or oven because she might leave it on or put it on the wrong temperature (Doc. 10, p. 52); plaintiff required telephone reminders when she had to get ready to go somewhere (Doc. 10, p. 53); she had to help plaintiff determine the settings on the washing machine before she was able to use it on her own (Doc. 10, p. 54); plaintiff did not comprehend the meaning of things she read (Doc. 10, pp. 55-56); plaintiff had to sit 3-4 ft. from the television to see it (Doc. 10, p. 56); plaintiff did not see well enough to clean her house without suggestions or reminders (Doc. 10, p. 58); plaintiff could use a cell phone if the were numbers pre-programmed (Doc. 10, p. 58).

         2. The ...


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