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Shane v. Colvin

United States District Court, E.D. Kentucky, Southern Division, Pikeville

January 9, 2017

KAREN SHANE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge

         Plaintiff Karen Shane brings this action pursuant to 42 U.S.C. § 405(g) to challenge a final decision of the Social Security Administration which denied her applications for Title II disability insurance benefits and Title XVI supplemental security income. Consistent with the Court's practice and pursuant to 28 U.S.C. § 636(b)(1)(B), this matter was referred to United States Magistrate Judge Edward B. Atkins for the issuance of a Report and Recommendation containing proposed findings and recommendations. After careful review, Judge Atkins recommended denying Ms. Shane's motion for summary judgment and granting the Commissioner's. In light of Ms. Shane's objections, the Court has reviewed the matter de novo. For the foregoing reasons, the Court ADOPTS Judge Atkins's Report and Recommendation, DENIES Shane's motion for summary judgment, and FINDS in favor of the Commissioner.

         I

         The factual background and procedural history relevant to Ms. Shane's social security appeal are set forth in detail in Judge Atkins's Report and Recommendation. [See R. 16 at 1-4.] The Court incorporates by reference that thorough explanation herein. After Judge Atkins explained the factual and procedural history of the case, Judge Atkins determined that (1) the Administrative Law Judge's decision in Ms. Shane's case was supported by substantial evidence, and (2) Sentence Six of 42 U.S.C. § 405(g) did not require Ms. Shane's case be remanded because of “new and material evidence.” [Id. at 5-14.] Subsequently, Ms. Shane filed timely objections to the Report and Recommendation. [R. 17.]

         The Court must make a de novo determination of those portions of the Report and Recommendation to which objections are made. See 28 U.S.C. § 636(b)(1)(c). Ms. Shane's objections, which contest both of Judge Atkins's findings, trigger de novo review, and the Court has satisfied that requirement by considering anew the parties' arguments, the ALJ's decision, the evidence in the record, and applicable case law and procedural rules.

         II

         A

         Ms. Shane contends the ALJ erred in finding Shane's testimony lacked credibility.

         Regarding that testimony, the ALJ noted the following:

The claimant testified at the oral hearing about her past relevant work and her impairments. She had numerous complaints and gave inconsistent testimony which was exaggerated and lacking credibility. She didn't go back to Comp Care because the therapist wanted to lock her up for three days (but see Exhibit 2F, pg. 3). She has a driver's license but denies driving for two years or since 2013 (but drove a cab in November 2013) and so on.
On review of the file, including Ms. Shane's testimony, the Administrative Law Judge does not find the claimant entirely credible for the reasons explained in this decision. She did not appear in any outward distress and responded appropriately to questions without any indication of distraction due to any cause. The level of treatment is incongruent with the alleged severity of her complaints while objective clinical and other examination findings do not suggest an individual who is incapable of all work activity. Ms. Shane has made inconsistent statements and asserts she can no longer drive, but her last job was for a taxi company. She complained about urinary frequency, but denied any treatment from June 2014 until the May 2015 hearing. She testified she could only walk three or four minutes at a time and so on, her complaints so extreme as to appear implausible.
. . .
She appears to have altered her information depending upon her audience and has contradicted herself as she has progressed through the disability process, all of which impacts her credibility. Weighing all relevant factors, the Administrative Law Judge concludes the claimant's subjective report of her symptoms does not warrant any additional ...

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