Locke v. Colvin

Filing 22

Order that the decision of the Commissioner of Social Security denying plaintiff's benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/29/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EARL L. LOCKE,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 15-00012-B

ORDER
Plaintiff Earl L. Locke (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq.

On December

15, 2015, the parties waived oral argument and consented to have
the undersigned conduct any and all proceedings in this case.
(Docs.

18,

19).

Thus,

the

action

was

referred

to

the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule
of

Civil

Procedure

73.

Upon

careful

consideration

of

the

administrative record and the memoranda of the parties, it is
hereby

ORDERED

AFFIRMED.

that

the

decision

of

the

Commissioner

be

I.

Procedural History
Plaintiff filed applications for a period of disability,

disability insurance benefits, and supplemental security income
on November 4, 2011, alleging that he has been disabled since
January

2,

2010,

due

to

“deaf[ness]

arthritis.”

(Tr. 107-121, 170).

denied,

on

and

March

21,

2013,

in

left

ear

and

severe

Plaintiff’s application was
Plaintiff

was

granted

an

administrative hearing before Administrative Law Judge David R.
Murchison.

(Id. at 23).

Plaintiff attended the hearing with

his counsel and provided testimony related to his claims.
at 28).

(Id.

A vocational expert (“VE”) also appeared at the hearing

and provided testimony.

(Id. at 38).

On April 25, 2013, the

ALJ issued an unfavorable opinion, finding that Plaintiff is not
disabled. (Id. at 17).

The Appeals Council denied Plaintiff’s

request for review on November 18, 2014.

(Id. at 1).

Thus, the

ALJ’s decision dated April 25, 2013, became the final decision
of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.

Issue on Appeal
A.

Whether the ALJ erred in failing to find
2

that Plaintiff’s closed head injury and
low back pain are severe impairments?
III. Factual Background
Plaintiff was born on April 18, 1965, and was forty-seven
years of age at the time of his administrative hearing on March
21, 2013.

(Tr. 28, 107).

the tenth grade.

He testified that he did not complete

(Id. at 28).

Plaintiff testified that at some time in the past (he could
not say when), he had a head injury and was in a coma and had to
learn to walk again.

(Id. at 30).

Plaintiff’s medical records

reflect that at age thirty-eight, Plaintiff jumped from a moving
vehicle in May 1993, while high on cocaine.
subdural hematoma.

(Id. at 196-97).

He suffered a

Surgery was performed to

remove fluid, and Plaintiff did well postoperatively and was
discharged after one month in the hospital.
diagnosis was good upon discharge.

(Id. at 197).

His

(Id.).

Plaintiff’s alleged onset date in this case is January 2,
2010, approximately seventeen years after his accident.
165).

(Id. at

Plaintiff testified that his past work includes working

for Rooms to Go lifting furniture and that they fired him after
he started having trouble with his foot.

(Id. at 29-30).

His

work history report shows that he worked for Rooms to Go for
approximately ten years, from 1999 to 2009.

(Id. at 130).

His

Disability Report shows that he also worked for a carpet company
3

installing carpet from 1997 to 2000.

(Id. at 171).

Plaintiff testified that now he is in constant pain and can
hardly walk.

(Id. at 30, 32-33).

He does not use a walker,

although he testified that he needs a wheelchair.
31, 36).

(Id. at 30-

According to Plaintiff, he is also totally deaf in his

left ear.

(Id. at 37).

Plaintiff testified that he cannot remember if he has spent
the night in a hospital in the last year.

(Id. at 33).

No

doctor has told him what is causing his problems, nor has any
recommended surgery.

(Id. at 33-34).

His treating physician,

Dr. Paul Smith, has given him pain medicine because of his foot
pain.

(Id. at 34).

Plaintiff testified that his feet have been

hurting for two or three years, and while his back also hurts
sometimes, his real problem is his feet.

(Id. at 35).

Plaintiff testified that he lived with his aunt, then his
mother, and now his daughter. (Id. at 31-32).
any more.

(Id. at 30).

He had a driver’s license, but it was

suspended after he got a DUI.
IV.

He does not drive

(Id.).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
4

legal standards were applied.
1520, 1529 (11th Cir. 1990).

1

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial
1

or

gainful activity by reason of any

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5

medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability. 2

for

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
2

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
6

has not worked since January 2, 2010, the onset date; he has the
medically determinable impairments of hypertension and obesity;
he does not meet a listing; and he does not have any impairment
that

significantly

limits

his

ability

to

perform

related activities for twelve consecutive months.
has no severe impairments.

basic

work

Therefore, he

(Tr. 13.).

The ALJ further found that Plaintiff was not credible with
regard to his claims of pain and that his medically determinable
impairments

could

alleged symptoms.

not

reasonably

(Id. at 14-15).

be

expected

to

determined

that

none

of

his

The ALJ concluded that there

were “many, many inconsistencies in the record.”
Having

produce

Plaintiff’s

(Id. at 15).

impairments

severe, the ALJ concluded that Plaintiff is not disabled.

was
(Id.

at 16).
The

Court

now

considers

the

foregoing

in

light

of

the

record in this case and the issue on appeal.
1.

Issue
A. Whether the ALJ erred in failing to
find that Plaintiff’s closed head injury
and
low
back
pain
are
severe
impairments?

Plaintiff’s sole argument on appeal is that the ALJ erred
in failing to find that his closed head injury and low back pain
are

severe.

Specifically,

Plaintiff

argues

that

these

impairments are more than slight abnormalities and that they
7

have more than a minimal effect on his ability to work.
Plaintiff

maintains,

impairments,
(Doc.

12

and

at

under

the

ALJ

erred

the

1).

The

regulations
in

finding

Commissioner

they
to

counters

are
the

that

Thus,

“severe”
contrary.

the

ALJ’s

finding is supported by the substantial evidence in this case
and, thus, must be affirmed.

(Doc. 15 at 6-7).

Having reviewed

the record at length, the Court agrees that Plaintiff’s claim is
without merit.
In this case, the ALJ found at step two of the sequential
evaluation process that Plaintiff has the medically determinable
impairments of hypertension and obesity but that none of his
impairments, including his alleged closed head injury and low
back pain, is “severe.”
two.

Thus, the ALJ ended the inquiry at step

(Tr. 13).
“Step two is a threshold inquiry,” and at this stage, “only

claims

based

on

the

most

trivial

impairments”

are

rejected.

McDaniel v. Bowen, 800 F. 2d 1026, 1031 (llth Cir. 1986).
step

two,

the

ALJ

must

determine

whether

the

At

claimant’s

impairments, alone or in combination, “significantly limit” the
claimant’s “physical or mental ability to do basic work skills.”
Wind

v.

Barnhart,

133

Fed.

Appx.

684,

690

(llth

Cir.

2005)

(quoting Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir.
2004)).
more

In order for an impairment to be severe, it must be

than

a

slight

abnormality
8

or

a

combination

of

slight

abnormalities

“that

limitations.”

20

“significantly

causes
C.F.R.

limit[]”

work activities.”

an

no
§

more

than

minimal

416.924(c).

individual’s

Indeed,

“ability

to

functional
it
do

must
basic

20 C.F.R. § 416.920(c).

Stated differently, “[a]n impairment is not severe only if
the abnormality is so slight and its effect so minimal that it
would clearly not be expected to interfere with the individual’s
ability

to

experience.”

work,

irrespective

of

age,

McDaniel, 800 F.2d at 1031.

education

or

work

However, a diagnosis

alone is insufficient; instead, the claimant has the burden of
showing the effect of the impairment on his ability to work.
Wind, 133 Fed. Appx. at 690; see also Marra v. Colvin, 2013 U.S.
Dist. LEXIS 105669, *13-14, 2013 WL 3901655, *5 (M.D. Fla. 2013)
(“It is [the] Plaintiff’s burden to prove the existence of a
severe impairment, and [he or] she must do that by showing an
impact on [his or] her ability to work.”).
In
process,

addition,
the

ALJ

as
is

part
tasked

of

the

with

disability

weighing

the

determination
opinions

and

findings of treating, examining, and non-examining physicians.
In reaching a decision, the ALJ must specify the weight given to
different medical opinions and the reasons for doing so.

See

Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th
Cir. 2011).

The failure to do so is reversible error.

See

Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL
9

413541, *1 (M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
considering

the

opinions

examining

physicians,

testimony

of

any

of

good

medical

treating,
cause

source

examining,

exists
when

However, whether

it

to
is

or

non-

discredit
contrary

to

the
or

unsupported by the evidence of record.

Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004).

“Good cause may also

exist

where

a

doctor’s

opinions

are

merely

conclusory,

inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”

Hogan v. Astrue, 2012 U.S.

Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764

F.2d

834,

835

(11th

Cir.

1985)

(per

Sryock v. Heckler,
curiam)

(citation

omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,

212

(11th

Cir.

2010)

(The

ALJ

may

reject

any

medical

opinion if the evidence supports a contrary finding.).
Here, Plaintiff has failed to satisfy his burden of proof
10

with respect to the alleged severity of his closed head injury
and low back pain.

Although Plaintiff has produced

opinion

evidence from his treating physician, Dr. Paul Smith, M.D., that
Plaintiff
because

cannot

of

his

treatment

engage
closed

in

any

head

questionnaire

form

injury

(id.

at

of

and

gainful
low

243),

back

Physical

employment
pain,

see

Capacities

Evaluation (id. at 290), and Clinical Assessment of Pain form
(id.

at

292),

substantial

these

medical

opinions

evidence

are

in

this

properly given no weight by the ALJ.
The

record

shows

that

on

inconsistent
case

and,

with
thus,

the
were

(Id. at 15).

November

17,

2011,

Dr.

Smith

opined in a Treatment Questionnaire that Plaintiff’s closed head
injury has a profound impact on his ability to work and that
Plaintiff

cannot

engage

in

any

form

of

gainful

employment

because of his closed head injury, which causes confusion.
at 243).

(Id.

In addition, on June 13, 2012, Dr. Smith opined in a

Physical Capacities Evaluation form that Plaintiff cannot sit,
stand, or walk for even one hour each day; he cannot lift/carry
more than ten pounds for even one hour each day; he cannot push
or pull with his arms or legs; he cannot bend, squat, climb,
crawl, or reach; and he has total restriction of all hazardous
activities.

(Id. at 290).

Also, Dr. Smith opined in a Clinical

Assessment of Pain form that Plaintiff’s pain will distract him
from

adequately

performing

daily
11

activities

or

work,

that

physical

activity

will

increase

his

pain

greatly

and

cause

distraction from task or total abandonment of task, and that his
pain is expected to be severe and to limit his effectiveness.
(Id. at 291-92).
As the ALJ found, Dr. Smith’s opinions, which essentially
render Plaintiff an invalid who cannot sit, stand, or walk for
even one hour a day, are inconsistent with his own treatment
notes, which do not document this severe level of functional
limitations.

The record reflects no radiology or other tests to

confirm the presence of any severe musculoskeletal impairments,
and there are no recommendations from Dr. Smith or any physician
that Plaintiff have surgery or be treated with anything other
than

medication.

internally

3

In

inconsistent.

addition,
Dr.

Smith

Dr.

Smith’s

opined

in

opinions
the

are

Physical

Capacities Evaluation that Plaintiff could carry ten pounds for
one hour each day but that Plaintiff could not stand or walk for
an hour.

(Id. at 290).

Dr. Smith also opined that Plaintiff

could lift ten pounds for an hour each day but that he could not
3

The record shows that the ALJ attempted to obtain evidence
related to Plaintiff’s physical condition by sending Plaintiff
to a consultative orthopedist, Dr. William Crotwell, M.D., but
Plaintiff failed to appear for the examination and did not
respond to the Agency to discuss his reason for failing to
appear. (Id. at 16, 299).

12

reach at all.

(Id.).

(Id. at 16).
Plaintiff’s

As the ALJ found, this is “impossible.”

Dr. Smith’s opinions are further contradicted by
and

psychologist,

Dr.

his

daughter’s

Thomas

Bennett,

report
Ph.D.,

to

and

consultative

to

consultative

physician Dr. Thomasina Anderson-Sharpe, M.D., that Plaintiff
“takes care of his own activities of daily living.”
236, 250-51).

(Id. at

Moreover, Dr. Smith’s opinions are inconsistent

with Plaintiff’s testimony at his hearing that his back hurts
“sometimes” but that his real problem is the pain in his feet.
(Id. at 35).

Plaintiff stated, “sometime my back go out and my

back be hurting me sometime. . . it use to bother me bad all the
time, but now the real[] problem I’m having now [is] in my feet.
. . I had a problem with my back sometime, but not all the
time.”

(Id.).

Dr.

Smith’s

opinions

are

also

inconsistent

with

the

remaining medical evidence in this case, including the following
evidence

specifically

related

to

Plaintiff’s

closed

head

injury/alleged mental impairment: (1) consultative Psychologist,
Dr. Thomas Bennett, Ph.D., examined Plaintiff on May 25, 2011,
and

was

unable

to

make

a

diagnosis

because

Plaintiff

was

virtually unresponsive to all of his questions and could give no
information about his disability except that his left foot hurt
(id.);

Plaintiff

could

not

give

Dr.

Bennett

any

information

about his previous accident or head injury, his personal or
13

family history, or his work history (id.); Dr. Bennett observed
that Plaintiff “often did not respond” and while “there were a
few occasions when he acted as though he could understand what
was being asked of him,” “the majority of the time he either
gave a blank stare or replied, “hold on hold on” (id. at 235);
Dr. Bennett noted that Plaintiff had an “awkward gait;” that his
“posture was bent forward from the hips;” that “he held his head
tilted;” and that he appeared to be confused (id. at 235-36);
when

Dr.

Bennett

asked

Plaintiff

to

count

from

one

to

ten,

Plaintiff “gave random numbers” (id. at 235); Plaintiff could
not tell Dr. Bennett the month, date, or situation, and told him
the year with great difficulty

(id.); Plaintiff was able to

point to some objects in the room when they were named (id.);
Dr.

Bennett

diagnosed

unknown trauma.

“rule

out

cognitive

disorder

due

to

Other diagnoses impossible to assess” (id. at

236); (2) seven months later, on December 15, 2011, a second
consultative
Plaintiff

psychologist,

and

malingering

concluded

found

(id.

Dr.

that
at

John
there

245,

Davis,
were

248);

Ph.D.,

strong

Dr.

Davis

examined

efforts
noted

of
that

Plaintiff could not count to ten and or say his ABC’s, simple
exercises
retarded
Plaintiff

that

can

be

individuals
could

not

performed
(id.

at

describe

by
248);
his

even
Dr.

profoundly
Davis

activities

mentally

noted
of

that

“today,

yesterday, or the day before” or describe his trip to the office
14

that day (id. at 247); Plaintiff told Dr. Davis where he was
born and his marital status and provided information about his
children and siblings and his previous work history at Rooms to
Go (all of which he ostensibly was unable to do during his
consultation with Dr. Bennett) (id. at 246); Dr. Davis observed
that Plaintiff had “no unusual gait or posture abnormalities,”
no unusual mannerisms, and his motor activity and attitude were
“normal” (in stark contrast to Dr. Bennett’s observations that
Plaintiff walked with an “awkward gait,” “was bent forward from
the hips,” and “held his head tilted”) (id. at 235-36, 246); Dr.
Davis

ultimately

diagnosed

Plaintiff

with

“Malingering.”

According to Dr. Davis, Plaintiff did not put forth his best
effort,

and

the

results

of

his

examination

were

“an

underestimation of the claimant’s ability for unknown reasons”
(id. at 245, 248); and finally (3) the record is devoid of
evidence that Plaintiff ever required outpatient mental health
treatment, hospitalizations, or emergency room visits for any
psychiatric condition.
Dr.

Smith’s

opinions

are

also

inconsistent

with

the

remaining medical evidence in this case specifically related to
Plaintiff’s
consultative

low

back

pain,

neurologist,

including

Dr.

Ilyas

the

Shaikh,

following:
M.D.,

(1)

examined

Plaintiff on July 15, 2011, at which time Plaintiff complained
of left leg, back, and shoulder pain (id. at 239); Plaintiff
15

reported to Dr. Shaikh that he completed the ninth grade in
school

and

discussed

that
his

his

last

parents

job

and

was

lifting

siblings

furniture,

(which

he

was

and

he

ostensibly

unable to do during his consultation with Dr. Bennett two months
earlier) (id. at 240); Dr. Shaikh noted that Plaintiff “has a
limp” and “is using a walker . . . provided by his daughter”
(id.

at

Plaintiff

239-40);
was

in

upon
no

examination,

acute

Dr.

distress,

Shaikh

that

his

noted

spine

that

had

no

tenderness and “fairly normal range of motion,” that he could
move all four extremities, and that there was no swelling in his
extremities (id.); Plaintiff’s motor strength was normal (5/5);
his

fine

shoelaces,

motor
and

skills
his

were

grip

normal;

strength

he
was

was
5/5

able
and

to

tie

his

bilaterally

symmetrical (id. at 241); Plaintiff’s neurological examination
revealed that he was alert, able to hear and understand normal
volume4 but that he “had variable responses,” acted confused, and
insisted that his daughter answer all questions (id. at 240);
Plaintiff’s sensory exam was “variable” as “he demonstrated poor
sensation but [his] facial expression of the sensory stimuli was
noticeable” (id.); Plaintiff had a negative Romberg test (no
loss of balance) and refused to stand on his heels or toes or
demonstrate a tandem gait (id.); Dr. Shaikh diagnosed history of
4

The Court notes that Plaintiff demonstrated
difficulty at his administrative hearing. (Tr. 23)
16

no

hearing

closed head injury, history of sub-dural hematoma evacuation,
poor hearing and poor vision demonstration, and “exaggeration of
post closed head injury complaints” 5 (id.) (emphasis added); Dr.
Shaikh noted “poor effort” during the examination (id. at 242);
(2) consultative examiner, Dr. Thomasina Anderson-Sharpe, M.D.,
examined

Plaintiff

on

December

17,

2011

(two

days

after

Plaintiff was examined by consultative psychologist, Dr. Davis),
and noted that Plaintiff was a poor historian and that whenever
he got confused, he would say that he “likes Kool Aid or watches
TV” (id. at 250); Plaintiff’s chief complaints on that date were
back problems, arthritis, hearing problems, and pain every day,
which

Plaintiff

related

to

his

previous

car

accident

(id.);

Plaintiff reported that he “manages all [of his own] ADL’s” and
that he has had no hospitalizations or emergency room visits in
the

last

two

years

(id.

at

250-51);

upon

examination,

Dr.

Anderson-Sharpe noted that Plaintiff was in no acute distress
but that he got up and down off of the examining table with
difficulty (id.); Dr. Anderson-Sharp documented that Plaintiff
demonstrated a broad-based right limp with positive Romberg and
5

Plaintiff points to Dr. Shaikh’s notation during his examination
that Plaintiff gave his wrong age and education which
“demonstrates confusion . . . probably related to his closed
head injury” to support his argument that his closed head injury
is severe.
(Tr. 242; Doc. 12 at 3).
However, Dr. Shaikh’s
subsequent diagnosis of “exaggeration of post closed head injury
complaints” places this note in context and, when combined with
this and other evidence of Plaintiff’s malingering, renders
Plaintiff’s argument unpersuasive.
17

was unable to heel toe walk or tandem gait (id. at 252) (in
contrast

to

Dr.

Davis’

observation

two

days

earlier

that

Plaintiff had “no unusual gait or posture abnormalities” (id. at
246); Dr. Anderson-Sharpe noted that no assistive device was
used or needed (contrasting Dr. Shaikh’s observation five months
earlier that Plaintiff “has a limp” and “is using a walker” but
consistent with Plaintiff’s hearing testimony that he does not
use a walker) (id. at 31, 239-40, 252); that Plaintiff’s motor
strength was normal (5/5), and that his sensory exam was normal
in all extremities (id. at 252); and finally, (3) at his hearing
on March 21, 2013, Plaintiff responded at length to the ALJ’s
questions about his background, his school history, his past
work

history,

medications

his

(despite

medical

problems,

appearing

his

completely

doctors,
unable

to

and

his

speak

or

recall any of these events during his consultative evaluation
with Dr. Bennett on May 25, 2011 and with Dr. Anderson-Sharpe on
December 17, 2011)6 (id. at 28-43, 250).
Based on the foregoing, the Court finds that the ALJ had
good

cause

substantial

to

discredit

evidence

Dr.

Smith’s

supports

the

opinions

ALJ’s

and

that

determination

the
that

Plaintiff’s closed head injury and low back pain are not severe

6

As discussed, when asked questions by Dr. Anderson-Sharpe,
Plaintiff would appear confused and say random things like, “[I]
like Kool Aid” or “[I] watch[] TV.” (Tr. 250).
18

impairments.
V.
For

Accordingly, Plaintiff’s claim is without merit.

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 29th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

19