United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge.
Andrew Banks appeals to the district court from a final
decision of the Commissioner of Social Security
(“Commissioner”) denying his application under
the Social Security Act (the “Act”) for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income
(“SSI”). (DE 1). For the following reasons, the
Commissioner's decision will be REVERSED, and the case
will be REMANDED to the Commissioner for further proceedings
in accordance with this Opinion and Order.
applied for DIB and SSI in November 2012, alleging disability
in December 2010. (DE 10 Administrative Record
(“AR”) 226-33, 258-59). The Commissioner denied
Banks's application initially and upon reconsideration.
(AR 147-50, 156-59). After a timely request, a hearing was
held on May 29, 2014, before Administrative Law Judge Maryann
S. Bright (“the ALJ”), at which Banks, who was
represented by counsel, and a vocational expert, Amy
Kutschbach (the “VE”), testified. (AR 32-87). On
August 29, 2014, the ALJ rendered an unfavorable decision to
Banks, concluding that he was not disabled because he was
capable of performing a significant number of jobs in the
economy despite the limitations caused by his impairments.
(AR 12-26). The Appeals Council denied Banks's request
for review (AR 1-4), at which point the ALJ's decision
became the final decision of the Commissioner. See
20 C.F.R. §§ 404.981, 416.1481.
filed a complaint with this Court on December 28, 2015,
seeking relief from the Commissioner's final decision.
(DE 1). In this appeal, Banks argues that the ALJ: (1) failed
to develop the record as to his current functioning, and (2)
improperly discounted the credibility of his symptom
testimony. (DE 15 at 18-25).
time of the ALJ's decision, Banks was 42 years old (AR
26, 226); had a tenth grade education (AR 42, 263, 373) with
special education classes (AR 42-43, 325); and had past
relevant work experience as a foundry worker (AR 264, 323).
Banks's Testimony at the Hearing
hearing, Banks testified that he is single and has two
children, ages 22 and 14. (AR 37). He lives with his mother
and grandmother; his mother takes care of all the household
tasks, so he does not do much around the house. (AR 37-40).
Banks had been denied Medicaid but was appealing that
decision; he was receiving food stamps. (AR 41). His license
had been suspended due to falling behind in child support
payments, and a female friend drives him places. (AR 41-42).
He does not go to the store, fearing people might bump into
him and cause him to fall. (AR 44-45). He is independent with
his self care. (AR 70-71).
asked why he thought he could not work, Banks cited his auto
accident in 2010, explaining that he could no longer run,
jump, or stand for very long. (AR 54-55, 60). When he sits,
he feels needles in his left leg, so he props his leg up. (AR
55, 64). He states that his left leg swells when he stands or
walks too long, so he spends most of the day with his leg
propped up. (AR 59-60, 64, 77). Elevating his left leg
reduces the swelling and feeling of needles but does not
eliminate it. (AR 78). He uses a cane all the time. (AR
65-67). He asserted that he is in constant pain every day.
(AR 56, 64). He was not, however, taking any medication for
his symptoms other than what he obtained by visiting an
emergency room. (AR 58-60). Banks stated that a doctor had
recently recommended that the hardware be removed from his
left leg, but he could not afford the surgery. (AR 73). He
also complained of shoulder pain. (AR 55-56). Additionally,
Banks claimed that he could not work because his past car
accident is always on his mind, causing him to “freak
out.” (AR 67). When asked if he had consulted anyone
about these thoughts, Banks stated that he could not afford
to do so. (AR 68).
also asked Banks about his education, noting that he had
attended school through the tenth grade. (AR 42). Banks
responded that he was “in the slow class learning,
” “couldn't learn for nothing, ” and
“couldn't read.” (AR 42). The ALJ then
Q Okay. Now, can you read?
A No. I cannot. I'm not that good of a reader.
Q Okay. Small words?
Q What about a newspaper?
A No, I can't.
Q No even the captions or - - A No. I can't. Can't
Q You can't write anything?
A I can write my name.
Q Okay. What about a grocery list? Can you read or write one
A No. No, I cannot.
(AR 43). The ALJ then asked Banks whether he had completed
the disability application, observing that he had signed it
as if he had. (AR 43-44). Banks denied completing it, stating
that a friend had helped him and that he maybe had
“signed the wrong thing.” (AR 44). The ALJ
further noted that on a third party function report,
Banks's friend indicated that Banks reads books and
magazines. (AR 69; see AR 290-91). Banks explained
that he looks at catalogs and magazines but cannot read them,
stating: “I'm not a reader. I'm not a good
reader. I'm not. I mean, that's kind of embarass[ing]
to say, but I'm not. That is it.” (AR 70).