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Metalski v. Berryhill

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

March 7, 2017

NANCY A. BERRYHILL, [*]Acting Commissioner of Social Security, Defendant.


          Danny C. Reeves United States District Judge.

         This matter is pending for consideration of cross-motions for summary judgment filed by the parties. [Record Nos. 8 and 9] Plaintiff Regina M ski contends that the administrative law judge (“ALJ”) assigned to her case erred by denying her claims for supplemental security income benefits (“SSI”). She requests that the Defendant's decision be reversed and that she be found totally and permanently disabled. In the alternative, M ski requests that her case be remanded for a rehearing to address the alleged errors. Nancy A. Berryhill, Acting Commissioner of Social Security, contends that the ALJ's decision is supported by substantial evidence and should be affirmed.

         For the reasons discussed below, the Court will grant the Commissioner's motion [Record No. 9] and deny the relief sought by M ski [Record No. 8].


         On March 19, 2013, M ski filed an application for SSI under Title XVI of the Social Security Act (“the Act”), alleging a disability beginning on March 1, 2008.[1] [See Administrative Transcript, “Tr., ” at 131-34.] The Social Security Administration (“SSA”) denied her application initially and upon reconsideration. [Tr. at 63, 78] M ski pursued and exhausted her administrative remedies with a hearing before the ALJ [Tr. at 29], a written decision from the ALJ [Tr. at 8], and review by the Appeals Council [Tr. at 1]. Her case is now ripe for review pursuant to 42 U.S.C. § 1383(c)(3).

         M ski was 39 years-old at the time of the ALJ's decision. [Tr. at 22] M ski claims to having completed the twelfth grade and attending cosmetology school for three years. [Tr. at 150, 163] At other times, however, she reported only a ninth-grade education. [Tr. at 34] M ski claims to having worked as a manager at Dunkin Donuts, as an assistant manager and cashier at Rite Aid, at a deli, and cleaning houses. [Tr. at 36, 150, 169, 607] She quit working in 2007 around the time she was recommended for back surgery. M ski never returned to work. [Tr. at 14, 162] M ski contends that she is unable to work because of back problems, pinched nerves, carpal tunnel, and depression. [Tr. at 162]

         Dr. David Winkle, a state agency consultant, examined M ski in May 2013. [Tr. at 454-60] Dr. Winkle observed that M ski had no apparent gait disturbance, and that she had normal strength in her upper and lower extremities. [Tr. at 457] Winkle noted a history of carpal tunnel in her left side, which may cause impairment of repetitive griping and grasping. [Id.] Winkle cited a 2009 MRI which revealed a pinched nerve at ¶ 4-L5 and bulging disc at that level. [Tr. at 455] He noted a diagnosis of back pain secondary to degenerative disease, and bilateral neuropathy related to degenerative disc disease. [Tr. at 457] As a result of her back pain, Winkle noted that heavy lifting, bending, and stooping may be difficult, but that M ski should be able to lift and handle 30 pounds occasionally and 15 pounds more frequently. [Id.] He found that prolonged standing and prolonged sitting would be difficult, with a need to change positions every 30 minutes, and that she should be able to stand and walk for at least 4 hours in an 8-hour day. [Id.] Winkle also noted M ski's mental status as normal, her mood and affect were appropriate, and she related normally to the examiner. [Tr. at 456]

         Brian McLean, M.S., L.P.P., a state agency consultant, performed a psychological evaluation of M ski in June 2013. [Tr. at 461-66] McLean found that M ski's fund of knowledge was low, but that she evidenced concrete thinking. [Tr. at 464] He further found that M ski's judgment, when testing for a hypothetical situation, and reality testing, was adequate. [Id.] However, McLean indicated that M ski had gaps of insight and her decision making was confused. [Id.] He also noted her reports of paranoia, with statements that she often hears voices that bad things will happen. [Id.]

         McLean conducted a Wechsler Adult Intelligence Test, and concluded that M ski had a full-scale IQ score of 44, reflecting a very low range of functioning. [Id.] McLean noted M ski's GAF score to be 42. [Tr. at 465] As a result, he found marked impairment of the claimant's capacity to understand, remember, and carry out instructions for simple repetitive tasks; marked impairment of her ability to tolerate stress and pressure of day-to-day employment; marked impairment of her ability to sustain attention and concentration towards performance of simple repetitive tasks; and marked impairment of her ability to respond appropriately to supervision, coworkers, and the pressure of a work setting. [Tr. at 465-66]

         State agency psychologist Dr. Mary Thompson, Ph.D., reviewed M ski's medical records in August 2013 and determined that the claimant did not suffer from a medically-determinable mental impairment. [Tr. at 58] Thompson found the earlier-reported findings to be contradicted by M ski's work history, social media activities, and demonstrated independent ability to carry out daily tasks, such as use of an EBT card, completing purchases, and use of detailed language. [Id.] Based on other available evidence, Thompson concluded that M ski gave poor effort during her psychological evaluation, and that the report of her functioning was feigned. [Id.]

         In October 2013, state agency psychologist Dr. Lea Perritt, Ph.D., reached a similar conclusion in reviewing M ski's file. [Tr. at 73] Perritt found that M ski's presentation at her examination is contradicted by many other factors, including the CDI investigation, work history and adaptive skills over time, and educational attainment. [Id.] Perritt likewise found that M ski has no medically determinable mental impairment.

         M ski's was referred to Edward Lovelace, M.S., by her attorney for an additional psychological evaluation in October 2014. [Tr. at 596] Lovelace reported a full-scale I.Q. score of 52, again placing the claimant in the extremely low range of functioning. [Tr. at 598] In reaching this conclusion, Lovelace noted significant difficulties with verbal and nonverbal concept formations, a limited long-term memory, and difficulty drawing upon past experiences in reaching solutions to current problems. [Tr. at 599] Lovelace also recorded M ski's statement that she has never been employed for more than two months, with her previous employment including stocking shelves at a pharmacy and cleaning houses. [Tr. at 597]

         ALJ Tommye Mangus determined that M ski had the following severe impairments after reviewing the record and considering the testimony presented at the administrative hearing: severe degenerative conditions of the lumbar spine, possible carpal tunnel syndrome, post-traumatic stress disorder (“PTSD”), depression, and likely borderline intellectual functioning. [Tr. at 17] Notwithstanding these impairments, the ALJ determined that M ski had the residual functional capacity (“RFC”) to perform medium work, except that she could perform no more than frequent left handling or fingering. [Tr. at 20] With respect to mental limitations, the ALJ found that M ski could understand, remember, and carry out simple instructions and tasks; tolerate occasional, casual contact with coworkers, supervisors, and the public; and adapt to occasional, gradually introduced changes. [Id.]

         The ALJ determined that there were jobs existing in significant numbers in the national economy that M ski could perform, including industrial cleaner, laborer, and dining room attendant. [Tr. at 23] Accordingly, the ALJ concluded that M ski was not disabled from March 19, 2013 (the date her ...

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