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Banks v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

March 28, 2017

ANDREW BANKS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of Social Security Administration, [1] Defendant.

          OPINION AND ORDER

          Susan Collins, United States Magistrate Judge.

         Plaintiff 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”).[2] (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.

         I. PROCEDURAL HISTORY

         Banks 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.

         Banks 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).

         II. FACTUAL BACKGROUND[3]

         At the 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).

         A. Banks's Testimony at the Hearing

         At the 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).

         When 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).

         The ALJ 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 further inquired:

Q Okay. Now, can you read?
A No. I cannot. I'm not that good of a reader.
Q Okay. Small words?
A Yeah.
Q What about a newspaper?
A No, I can't.
Q No even the captions or - - A No. I can't. Can't even write.
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 of those?
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).

         B. Banks's ...


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