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Sherry J. Payne v. Michael J. Astrue

November 1, 2012

SHERRY J. PAYNE, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Caputo

Complaint Filed 6/09/11

MEMORANDUM

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Sherry J. Payne's claim for social security disability insurance benefits.

On May 7, 2008, Payne filed protectively*fn1 an application for disability insurance benefits. Tr. 11, 77, 102 and 154.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on August 27, 2008. Tr. 79-82. On October 29, 2008, Payne requested a hearing before an administrative law judge. Tr. 83. After about 17 months had passed, a hearing was held on March 23, 2010. Tr. 23-57. On April 15, 2010, the administrative law judge issued a decision denying Payne's application. Tr. 11-19. On June 15, 2010, Payne filed a request for review with the Appeals Council and on April 8, 2011, the Appeals Council concluded that there was no basis upon which to grant Payne's request. Tr. 1-5. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Payne then filed a complaint in this court on June 9, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on December 16, 2011, when Payne elected not to file a reply brief.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Payne meets the insured status requirements of the Social Security Act through December 31, 2013. Tr. 11, 13 and 102.

Payne, who was born in the United States on April 6, 1967,*fn5 graduated from high school and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 29, 50-51, 111 and 119. During Payne's elementary and secondary schooling, she attended regular education classes. Tr. 119. After obtaining, a high school diploma, Payne in 2004 completed 3 years of college. Id. Payne also had secretarial training, book keeping training, interior, kitchen and bath design training, residential space planning training, bridal consultant training, and art training. Id.

Payne has past relevant employment*fn6 as an owner of a cleaning business, a banking loan officer, and an interior designer of kitchens and bathrooms.

Tr. 50-51, 113 and 121. Those positions were described by a vocational expert as skilled, sedentary to medium work. Tr. 50-51. *fn7 Payne's work and earnings history spans the years 1984 through 2008. Tr. 103, 108 and 121. Records of the Social Security Administration reveal that Payne had earnings as follows:

1984 $633.17 1985 2837.51 1986 3509.10 1987 600.25 1988 6507.51 1989 5670.67 1990 2390.44 1991 2285.26 1992 0.00 1993 7147.00 1994 1763.00

If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.

20 C.F.R. § 404.1567.

1995 11484.57 1996 4275.02 1997 3484.00 1998 5162.00 1999 9347.00 2000 12049.00 2001 8000.00 2002 5167.00 2003 16278.28 2004 21359.19 2005 19922.71 2006 34260.22 2007 11421.83 2008 7578.00 Tr. 103. Payne's total earnings from 1984 through 2008 were $203,132.73. Id.

Payne alleges that she became disabled on February 5, 2007, because of disorders of the back and spine. Tr. 112. In a document filed with the Social Security Administration, Payne stated that she is limited in her "ability to walk, sit, bend and lift anything for any prolonged period of time" and that she has "inflamation in the lower back." Id. Payne contends she has medication side-effects which prevent her from driving and "function[ing] properly." Id. Payne claims that she cannot "stand for more than an hour or so," bend to the floor or lift and carry more than 10 pounds. Id. She further contends that she has fatigue in the morning and memory problems. Id.

In a document filed with the Social Security Administration in conjunction with Payne's application for benefits, Payne indicated that she stopped working on February 3, 2007, "[b]ecause of [her] condition and other reasons severe sciatic nerve pain, leg cramping, numbness from back to toes. (sic) Severe low back pain and cramping. (sic) I had to take medications which do not allow me to function on a normal level. There are many things that I could not perform at work. Lifting, bending, going to job sites for new construction to measure kitchen and bath space requires bending and kneeling to measure. I would walk unstable and falling was a risk. " Id.

Although Payne claims that she has been disabled and unable to work since February 5, 2007, the record reveals that Payne applied for and received unemployment compensation benefits during the 4th quarter of 2007($3681.00) and the 1st ($4908.00) and 2nd quarter ($2045.00) of 2008. Tr. 104. At the administrative hearing, Payne testified that she commenced receiving unemployment compensation benefits in July of 2008 and that she was still receiving unemployment compensation benefits. Tr. 30.

The administrative law judge questioned Payne regarding her application for unemployment compensation benefits and receiving the same well after her alleged disability onset date of February 5, 2007. Tr. 30. That exchange in relevant part was as follows:

Q. Now do you realize that by receiving Unemployment Compensation you're certifying that you're ready, willing, and able to work?

A. Yes, I was trying to find a job and trying to find something that I could functionally do along the way and ---Id. Payne further stated: ""I was trying to find employment and trying to find a job that I could try and do. Not that I could functionally do it, you know, hoping that I could be able to functionally do it. There's just nothing that I think I am able to do." Id. When asked whether she was still looking ...


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