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Betty F. v. Commissioner, Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

August 15, 2019

BETTY F., Plaintiff,



         Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration which denied her disability application. For the reasons set forth below, the court ORDERS that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings.

         I. Procedural History

         Plaintiff filed applications for a period of disability, disability insurance benefits, and supplemental security income on July 5, 2013, alleging that she became disabled on December 7, 2012. [Record (“R.”) at 30, 363-73]. After Plaintiff's applications were denied initially and on reconsideration, an administrative hearing was held on February 28, 2017. [R. at 64-98, 229-30, 269-79]. The Administrative Law Judge (“ALJ”) issued a decision denying Plaintiff's applications on June 6, 2017, and the Appeals Council denied Plaintiff's request for review on February 26, 2018. [R. at 1-7, 30-41]. Plaintiff filed her complaint in this court on April 27, 2018, seeking judicial review of the Commissioner's final decision. [Doc. 3]. The parties have consented to proceed before the undersigned Magistrate Judge.

         II. Facts

         The ALJ found that Plaintiff has degenerative disc disease and mood disorder. [R. at 33]. Although these impairments are “severe” within the meaning of the Social Security regulations, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. at 34]. The ALJ found that Plaintiff is capable of performing her past relevant work as a deli clerk, sexton, and dining room cashier. [R. at 39]. The ALJ also found that there are other jobs that exist in significant numbers in the national economy that Plaintiff can perform. [R. at 40]. As a result, the ALJ concluded that Plaintiff has not been under a disability from December 7, 2012, the alleged onset date, through the date of the ALJ's decision. [R. at 41].

         The decision of the ALJ [R. at 30-41] states the relevant facts of this case as modified herein as follows:

The claimant testified at the administrative hearing that she is 51 years old, has a tenth grade education, is five feet seven and a half inches tall, and weighs 245 pounds. She does not have any source of income and receives food stamp assistance. The claimant injured her knee in 2002 and reinjured it in 2006. She has a torn rotator cuff of the left shoulder. In addition, she has bipolar disorder and hears voices. She sometimes needs help to bathe and dress, but she often stays in bed. She testified that she stopped using marijuana in June 2012.

         The claimant alleges that she cannot work because of scoliosis, bipolar disorder, knee pain, and depression. (Exhibit 2E at 2). She alleged the following on appeal: “I cannot walk in the morning or stand for at least five minutes. I cannot walk for three minutes without having to stop or without a cane. I'm hearing voices that are telling me to hurt myself.” (Exhibit 7E at 1). In her initial application and on appeal, the claimant denied any mental health treatment. (Exhibit 2E at 5; Exhibit 7E at 2).

         The claimant alleges a history that includes a fractured right ankle in 1999, right knee surgeries in 2008 and 2010, and left shoulder rotator cuff surgery in 2011. (Exhibit 3F at 2, 3; Exhibit 5F at 4). She reports that she has used a cane since fracturing her ankle because “it never healed properly.” (Exhibit 5F at 4, 5). Her allegation that she has used a cane since 1999 is incongruent with her subsequent work history, which included maintenance and construction. (Exhibit 5F at 4). The claimant alleges that she was diagnosed with scoliosis in November 2012. (Exhibit 3F at 2). Magnetic resonance imagining (“MRI”) studies of the lumbar spine in April 2013 show early degenerative disc disease with mild levoscoliosis and no evidence of disc bulging or herniation. (Exhibit 5E at 9).

         The claimant had two consultative psychological examinations. Consultative examiner Valerie McAdams, Psy. D., assessed the claimant in December 2013 with mood disorder not otherwise specified, opioid abuse, and rule-out opioid dependence. (Exhibit 2F at 5, 6). The claimant denied being in treatment and denied taking any psychotropic medication. The claimant told Dr. McAdams that she had been assessed with “manic depression” around 1996 and that she had experienced an overdose of pills and alcohol in 2011. The claimant alleged that she has been clean for five months from alcohol abuse, prescription drug abuse, and heroin abuse, but she denied participating in any substance abuse program since 2011. (Exhibit 2F at 4). The claimant told Dr. McAdams that she is capable of living independently, including bathing, dressing, and cleaning her house. (Exhibit 2F at 3, 4).

         Dr. McAdams noted that the claimant had no problems understanding and responding during the evaluation. (Exhibit 2F at 5). In interacting with others, the claimant has mild limitations. She is married and attends substance abuse meetings without any apparent difficulties. (Exhibit 2F at 4; Exhibit 5F at 5). With regard to concentrating, persisting, or maintaining pace, the claimant has moderate limitations.

         Joan Kent, Ph.D., a consultative examiner, assessed the claimant in November 2014 with bipolar disorder, reading disorder, and borderline intellectual range provisionally. (Exhibit 5F at 7). Noting the claimant's self-reported history of job injuries, Dr. Kent speculated that getting injured on the job might be the claimant's way out of working in positions that were too challenging or stressful to her. (Exhibit 5F at 7). Dr. Kent reported that the claimant walked with a limp and carried, as opposed to used, a cane. (Exhibit 5F at 6). The claimant alleged a history of three suicide attempts with the most recent in 2009, denied substance abuse since 2013, and denied receiving treatment or taking psychotropic medication. (Exhibit 5F at 5, 7). Dr. Kent opined that the claimant had moderate impairment in attention, concentration, energy, and pace. (Exhibit 5F).

         Consultative examiner Debbie Brewer, M.D., assessed the claimant with mild S-shaped scoliosis of the thoracic and lumbar spine, no more than five to ten degrees. (Exhibit 3F at 5). Dr. Brewer diagnosed the claimant with only mild multi-level thoracic spine degenerative disc disease and multi-level bulging of the cervical spine at ¶ 3-C4, C4-C5, C5-C6, and C6-C7. (Exhibit 3F at 11). The claimant also has moderate left ankle degenerative joint disease. (Exhibit 3F at 5, 12). The claimant told Dr. Brewer that she has a history of right knee arthroscopic surgery and left shoulder rotator cuff tear status post-surgical repair in 2011. Dr. Brewer noted that the claimant had an antalgic gait and used a cane. Examination showed slightly decreased strength; overall muscle strength was 5/5, with lower left extremity at ; and grip strength left was  and right was 5/5. The claimant denied having a treating physician and reported that she took only B.C. Powder and Tylenol for relief. (Exhibit 3F at 3).

         The claimant reported incongruently throughout the record concerning her daily abilities. For example, in her function report, she denied driving, but she told Dr. Brewer that she drove. In her function report, the claimant denied cooking, but she told Dr. Kent that she cooked. (Exhibit 8E at 5; Exhibit 3F at 3; Exhibit 5F at 5). Although in her initial application the claimant reported special education from 1979 to 1983, she told Dr. Kent that she attended special education from first grade through the eleventh grade. (Exhibit 2E at 3; Exhibit 5F at 4).

         In sum, the claimant was ages 47 to 51 during the relevant period, has an eleventh grade education, and has a history of working in maintenance and construction. (Exhibit 5F at 4). She received worker's compensation twice prior to the relevant period but has reported inconsistently concerning the periods covered by these claims, from 1999 to 2001 and from 2006 to 2011. (Exhibit 2F at 3; Exhibit 3F at 2; Exhibit 5F at 4).

         Additional facts will be set forth as necessary during discussion of Plaintiff's arguments.

         III. ...

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