Lane v. Colvin

• Decision Date: 22 July 2016
• Docket Number: Case No. CV614-123
• Parties: SONDRA LEE LANE, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Georgia

SONDRA LEE LANE, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

Case No. CV614-123

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

July 22, 2016

REPORT AND RECOMMENDATION

This Social Security appeal presents a relatively standard claim -- that the ALJ erred in denying benefits -- but also a relatively rare, procedural due process claim.

I. BACKGROUND

Sondra Lee Lane applied for Disability Insurance Benefits (DIB) and Medicare Part A benefits. Doc. 19-5 at 2.¹ The Social Security Administration (SSA) denied her application following a hearing before anAdministrative Law Judge (ALJ), doc. 19-2 at 38-48, and an appeal (with her presentation of new evidence) to the SSA's Appeals Council. Doc. 19-2 at 25; see also doc. 23 at 9-11.

The SSA reviewed hearing evidence (and a follow-up letter from Lane's doctor) showing that she was aged 61 at the time of the ALJ hearing. There she testified that she is in pain 24/7, her appetite is "iffy," and she is on an antidepressant. Doc. 19-2 at 57-58. Armed with a medical assistant's degree, she endures no difficulty reading, writing, or doing simple math unless she takes her medications (Flexeril and morphine, about 3-4 times a week), "then I probably couldn't spell dog for a couple of hours." Id. at 59.

Plaintiff further testified that, other than when her then-husband was stationed overseas in 1978, she had been continuously employed since her high school days in jobs such as a convenience store clerk, then a manager, doc. 19-2 at 67-68, and later a medical office administrative assistant until ultimately (in 2004) she worked as an administrative secretary and bookkeeper for a Bulloch, County, Georgia public school. "I was primarily at a desk probably half of the time, and then runningaround the other half." Doc. 19-2 at 60. She was responsible for "ordering any supplies and everything that we would need, I did all that." Id. She occasionally would have to lift "a boxful of files that weighed maybe 10 or 20 pounds." Id. at 61.

The ALJ specifically questioned Lane about her jobs' physical demands. They required relatively little. From 1998-2004, for example, she worked as a "front office coordinator" and supply master for a medical practice group. Id. at 61-62. She "did all the weekly, monthly and year ending financial reports," but lifted nothing over 20 pounds. Id. at 62.

Lane's employment career effectively ended in September 2009. She had endured a "bowel resection" and "my back was getting so bad² that I couldn't hardly stand the pain and I missed a lot of days of workthat year, and I never hardly used my sick days, and I left -- I mean I had days that I took off and I didn't get paid for it because I was out of sick days, and I just thought that, you know, once I had six weeks off for the summer and I thought, well, maybe I can get this under control." Doc. 19-2 at 69 (footnote added). Pain meds mentally dampened her ("If I did take my medicine, I was so sleepy and druggy, and you just mess around with money with a frame of mind like that especially, you know, with state and federal funds."), but if she did not take them then "I was in so much pain I couldn't concentrate on what I was doing." Id.

Lane also claimed that she is allergic to anti-inflammatory medication, so she cannot address her back pain and muscle spasms. Doc. 19-2 at 71. Nor does alternative medicine ("acupuncture, stuff like that") work. Id. On morphine since 2009, her pain pervades her back and hip regions. "Dr. Purvis thinks that, you know, sometimes I'm getting flare up of fibromyalgia and again anti-inflammatories are recommended for that and I can't take that. I can't take a lot of different pain medications, anything with codeine or anything like that, I'm allergic. I'm a really hard patient. He says I'm difficult to treat becauseof my allergies." Id. Physical therapy is ineffective beyond the short term. Id. at 71-72. Nor are trigger-point injections or chiropractic measures. Id. at 72. Her pain meds only last for "about two hours and then the pain starts coming back, the stiffness returns." Id. at 73.

Lane exhibited pain-based discomfort at the ALJ hearing. Doc. 19-2 at 73-74 (in "the mid back, the mid back are from like my bra strap up, up into my neck and then if I sit too long in one position, I get pains going down this right hip and down my leg."); see also id. ("It's a throbbing, like somebody's twisting and pulling and -- it's like a toothache in the middle of your back."). Flexeril helps "definitely" and "muscle relaxers will make these muscles relax and not hurt so bad but they also put me to sleep." Id. at 74. She takes it at night but "[t]here are some days [about once or twice a week] that I have to take it a couple times a day." Id. She has three to four "bad days" with back pain. "There are days I don't get dressed," and thus stays in bed. Id. at 76.

Plaintiff also suffers from Chronic Obstructive Pulmonary Disease (COPD).³ Doc. 19-2 at 76. A lifelong cigarette smoker who now uses anelectronic cigarette "90 percent of the time," id. at 77, she suffers shortness of breath and thus can walk "[h]alf a block maybe to a block." Id. at 76. She also endures chest tightening during such walks. Id. at 78. Her COPD worsens during hot and humid weather. Id.

These ailments limit Lane's physical activities. She and her husband attend church but it is physically hard for her sit through a church service. Doc. 19-2 at 78. They rarely go out to eat, she does only "very light" housework, and performs no yard work on their 180-acre spread. Id. at 78-79. Lane does grocery shops only once or twice a month and when she does she must lean on a grocery cart. "It may take me 20 minutes to walk from one end of the store to the other." Id. at 82.

Her indoor activity also is restricted. Plaintiff is able to load her dishwasher but "it may take me two or three trips to the kitchen to get it done." Id. at 80. She prepares "one pot meals, crockpot meals, things that I don't have to stand and watch over." Id. at 83. She can stand forabout "[t]en, fifteen minutes at the most, and that's on a good day." Id. Lane watches TV but "most of the time I fall asleep." Doc. 19-2 at 81. Her inability to concentrate inhibits reading, and she has difficulty remembering doctor's appointments and paying her bills. Id. at 81-82.

Finally, plaintiff also suffers from depression. Doc. 19-2 at 84. Her doctor first prescribed Wellbutrin, then (when that didn't work) Celexa. Id. Celexa helps "take the edge off" of her sense of despair over her medical condition and the pain and incapacitation that it wreaks. Id. at 85.

The forgoing review of the entire evidentiary hearing transcript reveals no mention of hospitalization, nor any quest for post-hospitalization home or hospice care. In fact, it reflects Lane's pursuit of a (DIB) claim, not (as is further demonstrated infra) a "Medicare Part A" claim.⁴

II. DUE PROCESS

Lane's due process claim leads the Court back to her application: "I apply for a period of disability and/or all benefits for which I am eligible under Title II [i.e., DIB] and Part A of Title XVIII of the Social Security Act, as presently amended."⁵ Doc. 19-5 at 2 (emphasis added). She thus sought both DIB and/or Medicare Part A benefits. But her opening brief before this Court ignores the Medicare Part A claim. Doc. 23. In fact, it says that she "filed a claim for Title II benefits alleging disability beginning September 30, 2009." Id. at 2; see also doc. 28 at 1 (same).

In any event, Lane's October 19, 2010 application required her to show, for DIB, an "insured status" (i.e., that she had worked and thuscontributed to the SSA system)⁶ prior to her claimed disability's September 30, 2009 onset date. She insists that, at all administrativeclaim-consideration and adjudication levels, the SSA never questioned that insured status. Instead, it waited until after it rejected her claim and replied to her opening brief here to claim that its DIB-benefits denial is due to her lack of insured status.⁷ She correctly reminds that the ALJ never explicitly mentioned that, and she points to this portion of the SSA's response brief:

On October 17, 2010,⁸ Plaintiff filed an application for Medicare under Part A of title XVIII of the Social Security Act, alleging she became disabled on September 30, 2009 (Tr. 167).

* * *

Plaintiff also applied for disability insurance benefits (DIB) under title II of the Social Security Act (Tr. 167). But, contrary to Plaintiff's assertions, Plaintiff's insured status expired prior to the alleged onset of her disability (Tr. 182). Accordingly, Plaintiff was not eligible for DIB.

Doc. 24 at 1, 2 & n. 1. Lane then expresses surprise at that:

It appears, based on the document referenced by the Commissioner (Tr. 182 [Doc. 19-5, p.17]) that it is the Commissioner's position that June 30, 2009 was Mrs. Lane's date last insured for Title II disability insurance benefits. This is a position never previously communicated to Mrs. Lane by the Commissioner.⁹ The record reveals that the Commissioner never provided notice to Mrs. Lane that she was ineligible for disability insurance benefits after June 30, 2009 due to the expiration of her insured status. In fact, there was never even an initial determination explaining that Mrs. Lane was ineligible for disability insurance benefits on the basis of a lapse in coverage. To the contrary, throughout the administrative proceedings, and in the notice of hearing, and even during the hearing, the Commissioner led Mrs. Lane to believe that the issue to be considered by the administrative law judge was whether or not she was disabled on or before December 31, 2014 for purposes of disability insurance benefits, not whether she was disabled for these cash benefits on or before June 30 2009. Mrs. Lane's eligibility for disability insurance benefits was never explicitly addressed or decided by the administrative law judge.

...