Larry T. v. Comm'r
| Decision Date | 24 September 2018 |
| Docket Number | CIVIL ACTION FILE NO. 1:15-cv-00960-AJB |
| Parties | LARRY T., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Plaintiff brought this action pursuant to §§ 205(g) and 1631(c) of the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying his application for Supplemental Security Income ("SSI")and Disability Insurance Benefits ("DIB").3 For the reasons set forth below, the undersigned AFFIRMS the final decision of the Commissioner and DENIES Plaintiff's request for remand pursuant to sentence six of 42 U.S.C. § 405(g).
On February 3, 2011, Plaintiff filed his application for SSI and DIB alleging a disability onset date of October 15, 2008. [Record (hereinafter "R") 136-52]. These claims were denied initially on June 22, 2011, and upon reconsideration on November 10, 2011. [R87-107]. Thereafter, Plaintiff filed a written request for hearing. [R108]. Plaintiff appeared and testified, unrepresented, at a hearing before an Administrative Law Judge ("ALJ"), where a vocational expert ("VE") also testified.[R32-86]. On June 28, 2013, the ALJ denied Plaintiff's application for disability benefits. [R12-28]. Plaintiff then filed an appeal with the Appeals Council, which was denied on February 5, 2015, making the ALJ's decision the final decision of the Commissioner. [R1-3].
Plaintiff subsequently filed this action on April 2, 2015, seeking review of the Commissioner's decision. [Docs. 1-1, 5]. After service of process, the answer and transcript were filed on August 11, 2017. [Docs. 18, 19]. On September 19, 2017, Plaintiff, now represented, filed a brief arguing for reversal of the Commissioner's decision, [Doc. 26], and on November 13, 2017, the Commissioner filed a response in support of the decision, [Doc. 28], to which Plaintiff replied, [Doc. 29]. The matter is now before the Court upon the administrative record, and the parties' pleadings and briefs,4 and it is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff claims that reversal and remand are required because:
[Doc. 26 at 3].
Plaintiff was born in 1957 and was 51 years old on the alleged onset date. [R136]. He completed high school and two years of college. [R189]. Plaintiff worked in the past as a construction laborer, telecommunication worker, and sales person. [Id.]. He alleged disability due to pain in his lower back and both legs, impairment of left index finger, and depression. [R188].
Plaintiff was unrepresented during the administrative hearing and, although the ALJ explained that he had the right to request a continuance in order to obtain representation, he stated that he wished to waive his right to representation and go forward with the hearing. [R34-36].
Plaintiff testified that he was unable to work due to pain in his left leg, lower back, and right hip. [R49-50]. He noted that he could not sit or stand for more than anhour at a time. [R49]. Plaintiff also stated that he developed glaucoma while working in his last job as a telemarketer. [R52]. He explained that if he tried to stare at a computer for too long, a headache develops over both eyes. [R54].
In response to questions about his earnings for calendar year 2009, Plaintiff indicated that he had not worked since 2008, but the ALJ noted that his tax records showed $11,026 in self-employment income for 2009. [R45-48]. The ALJ asked Plaintiff to contact the Internal Revenue Service to clarify this issue. [R82-85]. After the hearing, Plaintiff sent the ALJ a copy of his tax return for 2009, along with a letter clarifying his testimony at the hearing. [R178-83, 246]. He wrote that he did work for a telemarketing company for the first four months of 2009. [R246]. He was terminated because he started taking too many days off of work due to his pain. [Id.]. He stated that he had testified incorrectly because his mother had died that same year and he was confused about the timeline. [Id.].
1. Treatment records
In October 2008, Plaintiff saw Dr. Shantu Kumar, a primary care physician, at the Atlanta VA Medical Center ("the VA"). [R496-502]. He reported that he was feeling depressed over his mother's death earlier that year and described chronic painin his left leg that began in 1974, when he was serving in the Navy. [R496]. He was referred for a mental health evaluation and was put on a trial of Tramadol5 for his leg pain. [R500-01].
Plaintiff returned for a follow-up in January 2010. [R408-10]. He requested medications to treat his leg pain. [R409]. Plaintiff also complained of insomnia, and Dr. Kumar gave him a prescription for Trazodone.6 [Id.]. Other problems addressed during this visit included blurred vision and hearing loss. [R411].
In December 2010, Plaintiff saw Dr. Diana Sodiq, a rehabilitation specialist. [R322-23]. He noted that he had pain in his left shin that occasionally radiated to his thigh and his leg. [Id.]. A physical examination showed that he had a normal gait and a full range of motion in his spine. [R323]. Dr. Sodiq discussed further workups, suchas a CT scan7 or an EMG,8 but Plaintiff's main request was for pain medication. [R324]. He was reluctant to try Gabapentin9 because he did not want a "nerve medication," but he endorsed a good response to Percocet10 in the past. [Id.]. Dr. Sodiq prescribed Tramadol and noted that Plaintiff would be switched to hydrocodone if the Tramadol was not effective. [Id.].
During 2011, Plaintiff continued to follow up at the VA for medical care. In January, a physical therapist trained him to use a cane for ambulation. [R316-17].The next month, an x-ray showed that Plaintiff had mild spondylosis11 in his lumbar spine at L3-L4. [Id.]. He was given a prescription for oxycodone.12 [R452-53].
In March 2011, Plaintiff was evaluated for admission into a VA program designed to assist homeless veterans. [R427-30, 432-37]. A social worker noted that he was casually dressed and had a well-kept appearance. [R434]. He denied any suicidal ideation or psychosis. [Id.]. He reported feeling some depression over the death of his mother three years previously. [R435]. However, his mood was euthymic and his affect was appropriate. [R436]. The social worker noted that Plaintiff "cannot work the way he likes secondary to his leg." [Id.]. The next month, Plaintiff was given a housing voucher. [R568].
In August 2011, Plaintiff saw Dr. Andrew Geller for treatment of his lower back pain. [R551]. Plaintiff noted that the pain was worse with bending, side flexion, and extension. [Id.]. A physical examination showed that Plaintiff had 5/5 strength in his upper and lower extremities, and +2 deep tendon reflexes. [Id.]. His paraspinalmuscles13 were tender to palpitation. [Id.]. In addition, he had a reduced range of motion in his spine due to muscle spasms. [Id.]. Dr. Geller prescribed Sulindac14 and a TENS unit15 trial for his low back, and ordered an MRI of Plaintiff's lumbar spine.16 [Id.].
Over the next month, Plaintiff participated in several physical therapy sessions, with good results. [R546-50]. Later in August, Plaintiff checked in with a VA social worker, Ms. Mali Collis-Abdulla. [R545]. He stated that he was doing well and"continues to rent out his truck to people moving" but that the people sometimes do not realize that he personally is not going to help them move. [Id.].
In October 2011, Plaintiff told Ms. Collis-Abdulla that he was doing well and did not have any suicidal or homicidal ideation. [R726]. He noted that he is often not at home because he rents his truck out to other people. [Id.]. Plaintiff was alert and well-oriented, and spoke with a normal rate, tone, and volume. [R727].
In November 2011, Plaintiff saw VA rehabilitation specialist, Dr. Sushma Chandan, and VA resident, Dr. Rajeev Valvani. [R715]. He continued to complain of back pain that was radiating into his left leg. [Id.]. A recent MRI showed that he had an annular tear and disc protrusion at L5-S1, which was contacting the descending S1 nerve root. [R717]. A physical examination showed that Plaintiff had a normal gait pattern and was able to heel and toe walk. [R718]. He had increased pain with flexion17 and extension of his lumbar spine. [Id.]. He had 5/5 strength in his lower extremities, and his sensation was intact to light touch. [Id.]. Plaintiff told the doctors that the only medication that had worked for his pain was oxycodone. [Id.]. A drug screen performed during this visit tested positive for marijuana. [R712]. After learningof the results, Plaintiff acknowledged that he used marijuana to control his pain "about once a month or so." [R713]. He explained that all of the pain medications which he had tried except for Lortab18 caused him to have "horrible dreams." [Id.]. Due to the positive drug test, Dr. Chandan declined to prescribe any pain medications. [R707].
In December 2011, Plaintiff told Ms. Collis-Abdulla that he was planning to put his truck up for sale due to financial issues. [R705]. Otherwise, he was doing well. [Id.]. Plaintiff noted that he continued to earn funds from renting the truck out, and did not want to do anything to jeopardize his application for VA disability benefits. [Id.].
In a January 2012 follow-up appointment with Dr. Chandan, Plaintiff complained of an aching, intermittent pain in his groin and hip. [R701]. Physical examination showed that Pla...
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