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Akkerhuis v. Colvin

United States District Court, W.D. Missouri, Southern Division

February 17, 2015

CARALEE AKKERHUIS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

ROBERT E. LARSEN, Magistrate Judge.

Before the court is plaintiff's motion for an award of attorney's fees in the amount of $1, 742.59 pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. ยง 2412. In her response, defendant objects to an award of fees on the ground that the Commissioner's position was substantially justified. For the following reasons, I find that the Commissioner's position was indeed substantially justified. Therefore, plaintiff's motion for attorney's fees will be denied.

I. BACKGROUND

On August 6, 2007, plaintiff applied for disability benefits alleging that she had been disabled since April 4, 2007. Plaintiff claimed that she was disabled from arthritis in her legs and back, a right leg injury, high blood pressure, memory loss, a heart condition, and post traumatic stress disorder. Plaintiff's application was denied. On May 18, 2009, Administrative Law Judge Edward Starr found plaintiff disabled as of November 13, 2008, which was approximately a year and a half after her alleged onset date. Plaintiff appealed the partially favorable decision. On December 9, 2010, the Appeals Council denied review. Plaintiff appealed to the federal district court; and on October 3, 2011, Judge Nanette Laughrey reversed the decision of the Commissioner and remanded for further consideration. On December 19, 2011, the Appeals Council vacated the final decision of the Commissioner pursuant to the court's sentence four reversal and remand, and directed the ALJ to offer plaintiff an opportunity for a hearing and "take any further action needed to complete the administrative record and issue a new decision." On February 11, 2013, Administrative Law Judge David Fromme found that plaintiff was not under a "disability" as defined in the Act. Plaintiff appealed that decision, and her case was assigned to me.

Plaintiff argued on appeal that the ALJ erred in failing to give controlling weight to the opinions of Drs. Smith and Brown, in failing to give more weight to the disabling GAF scores in the medical records, and in failing to consider whether plaintiff's condition was the equivalent of a listed impairment with respect to her personality disorder. The remainder of her brief argued that she was disabled because of her physical condition.

On July 1, 2014, I entered an order reversing the decision of the Commissioner and remanding for further consideration - but not on any grounds raised by plaintiff in her brief. The record in this case was 948 pages long. After preparing a detailed summary of plaintiff's medical records, I determined that (1) the ALJ properly found that plaintiff was not disabled due to any physical impairment, (2) the ALJ properly gave little if any weight to the opinion of Drs. Smith and Brown, (3) the ALJ properly found plaintiff not credible, and (4) during almost the entire time covered by the medical records plaintiff was not taking her medication as prescribed or was not participating in therapy as recommended. However, I found that the medical records showed a disturbing trend of plaintiff's bizarre misrepresentations, often not designed to further any particular goal. The following is an excerpt from my order reversing the ALJ's decision:

This record is replete with instances of far-fetched, easily disproved, and sometimes bizarre contradictions on plaintiff's part. Some examples:

? In a Function Report plaintiff said she cannot drive because her leg hurts too much to use the gas pedal. She told Dr. Efird in October 2007 in connection with her disability claim that she let her license expire because of a car accident in April 2007. In 2012 in connection with her disability claim she said she stopped driving because the smell of a car triggered flashbacks of her abusive husband, even though she does not have trouble riding in a car.
? Plaintiff testified that she weighed 190 pounds in 1993. There are no medical records from 1993; however, in January 1996 she weighed 270 pounds. She testified in November 2012 that since she stopped working in April 2007 her weight has "gotten out of control." However, her medical records show that from 1996 through 2012, her weight remained stable, although she was obese that entire time.
? Plaintiff testified that she was in a bad car accident in April 2007. There are medical records dating back to 1996; however, there are no medical records substantiating plaintiff's testimony that she was ever in a car accident. She did not mention it during a hospital visit four months later, and she did not mention it to Dr. Efird in October 2007 when he examined her in connection with her disability claim. In November 2008 when plaintiff was hospitalized, she was asked if she had ever been in a severe accident. She did not report any accident from April 2007, but she did say she had been hit by a cement truck when she was a teenager, an allegation that appears nowhere else in this record.
? Plaintiff testified that she suffered falls at work in June 2006 and February 2007. The medical records support her allegation of a fall in June 2006; however, there are no medical records substantiating her claim of a fall in February 2007.
? Plaintiff testified during the first hearing that she was hit in the head and knocked unconscious five or six times by her husband. During the second hearing, she testified that her husband would beat her until she was unconscious three or four times a week, sometimes more often. Plaintiff's medical records from June 2, 2006, establish that when she fell at work, she did not lose consciousness. Plaintiff told Dr. Smith in January 2008 during a consultative examination that she had a history of multiple closed head injuries due to car accidents and assaults by her spouse, and at least one incident of being choked to unconsciousness. In May 2012 plaintiff denied any history of unconsciousness. In August 2012 she told Dr. Brown in connection with her disability case that she had experienced several head injuries through the years, several of which had rendered her unconscious.
? Plaintiff testified in November 2012 that she has a GED and no further education. She told a social worker in March 2002 that she was a few hours short of having an Associate's degree in business. Plaintiff told emergency room personnel in November 2008 that she had a Master's degree in early childhood education. She told a social worker in June 2010 that she had a Master's degree in early childhood education and taught for more than 20 years. Plaintiff told psychologist Michael Walsh that she had a GED and had completed two years of college courses in child development.
? On January 22, 1996, plaintiff denied seizures. The first time seizures were mentioned by plaintiff was during a consultative examination with Vann Smith, Ph.D., in January 2008 in connection with her disability application. Plaintiff told Dr. Alken in July 2010 that she was taking Depakote for seizures she had been having since her stroke. Plaintiff had never been prescribed Depakote up to that point and there is no medical support for her allegation of stroke. In December 2010, plaintiff went to the emergency room after allegedly falling. She reported a past medical history of seizures. Plaintiff reported a history of seizures when she was seen at the emergency room in December 2010. In January 2011 plaintiff told Nurse Jennifer Whitaker that she had a history of seizures. Ms. Whitaker wrote plaintiff a prescription for Depakote. The very next day, plaintiff was seen by another medical provider for a rash. She again reported a history of seizures and said she is not able to take Depakote because it causes involuntary movements, but that she had taken Flexeril and Cyclobenzaprine (Valium) in the past which had worked well. Despite her requesting these two medications, it is not clear that any prescriptions were written that day. In October 2011, plaintiff denied seizures although she said she had been out of her Depakote. In December 2011, plaintiff went to the emergency room after having fallen down the stairs, and she denied seizure activity. She was discharged on her normal medication which did not include any psychotropic medication or seizure medication. In May 2012 plaintiff told psychologist Michael Walsh, in connection with her disability claim, that she had had two seizures in her 40s which were caused by stress.
? On January 3, 2002, plaintiff denied ever having had suicidal ideation. In April 2002, she said she thought about suicide in 1994 when her baby died - she took out a gun and contemplated committing suicide for about five hours. In April 2005, plaintiff denied suicidal ideation. On October 16, 2007, plaintiff denied suicidal ideation when being examined in connection with her disability claim. In November 2008 when she was hospitalized, plaintiff completed a suicide assessment in which she denied a history of suicide attempt or self harm. In May 2012 in connection with her disability case, she said she got a gun in 1994 with the intention of shooting herself. In August 2012, she told Dr. Brown, in connection with her disability case, that forgetting causes her to wonder whether it is worth going on with life. She reported that in April 2011 she drank a large amount of whiskey in an attempt to kill herself.
? Plaintiff testified in November 2012 that she had to go to the emergency room several times after her alleged car accident to get pain medication. Plaintiff's medical records do not show emergency room visits for pain medication. Plaintiff told a nurse in April 2002 that she had been to the emergency room multiple times due to hives associated with anxiety and nervousness. The medical records do not support this allegation.
? Plaintiff testified in November 2012 that she has suffered with migraine headaches for ten years and that she gets a migraine headache once or twice a month, each lasting for 12 or 13 hours. In February 2012, plaintiff saw Connie Armstrong at Ozarks Medical Center and denied ...

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