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Smith v. Berryhill

United States District Court, S.D. Iowa, Central Division

December 14, 2017

BILLI JO SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          CELESTE F. BREMER UNITED STATES MAGISTRATE JUDGE

         Plaintiff Billi Jo Smith moves for reversal of Defendant Social Security Commissioner's decision denying her claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and supplemental security income payments (“SSI”) under Title XVI of the Act. 42 U.S.C. §§ 401-434, 1381-1385. Alternatively, Smith moves for remand to the Commissioner with instructions to appropriately assess her residual functional capacity (“RFC”) in accordance with the evidence in the record. The Commissioner asserts that the Court should affirm the denial of benefits, as the decision is supported by substantial evidence in the record as a whole. This Court reviews the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

         Smith complains that the Administrative Law Judge's (“ALJ”) decision is not supported by substantial evidence in the record, because the ALJ's determination of Smith's RFC did not include an evaluation of her ability to sit. Alternatively, Smith argues that the ALJ's decision was internally inconsistent, and therefore not supported by substantial evidence in the record as a whole.

         I. PROCEDURAL HISTORY

         Smith filed a Title II application for DIB and a Title XVI application for SSI on April 5, 2013, alleging a disability onset date of March 10, 2010, due to back pain stemming from scoliosis and prior back surgeries. These claims were denied on September 4, 2013, and again upon reconsideration on November 26, 2013. Smith requested and received a hearing before ALJ Tela L. Gatewood on July 22, 2015. Smith and Vocational Expert (“VE”) Roger Marquardt testified at the hearing. Smith's sister, Julie Smith, and 15-year-old son, Slater Kirk, also testified. After the hearing, Smith's case was transferred to ALJ Michael D. Shilling for a decision. The ALJ found that Smith was capable of making a successful adjustment to other work that existed in significant numbers in the national economy and was not disabled any time during the relevant period: from December 14, 2011, the day following the unfavorable decision regarding her previous application for benefits, to January 28, 2016, the date of the ALJ's unfavorable decision regarding her current application. (Tr. 18-19). Smith sought review before the Appeals Council.

         The Commissioner's decision became final on February 14, 2017, when the Appeals Council denied Smith's request for review of the ALJ's decision. (Tr. 1). Smith filed a timely Complaint to appeal the denial of benefits. (ECF 1). On April 20, 2017, this case was referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF 4). Briefing was complete on December 11, 2017, the deadline for Smith to file her Reply brief. This matter is fully submitted.

         II. FACTS AND ALJ DECISION

         To qualify for benefits under the Act, Smith must have been disabled. The Act defines disability as the inability “to engage in any substantial gainful activity by reason of any 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

         The ALJ used a five-step sequential evaluation to determine that Smith was not disabled within the meaning of the Act.[1] On January 28, 2016, the ALJ issued a decision denying Smith's claims for DIB under Title II and SSI under Title XVI of the Act. In her decision, the ALJ made the following findings:

. Smith met the insured status requirements of the Act through June 30, 2015;
. She has not engaged in substantial gainful activity since December 14, 2011, the beginning of the relevant period (20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.);
. She has the following severe impairments: scoliosis, spondylosis of the lumbar spine, and obesity (20 C.F.R. §§ 404.1520(c), 416.920(c));
. She does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926);
. She has the RFC to perform a full range of sedentary work, as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a);
. She is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965);
. She was born on February 5, 1971, and in 2010, on the alleged disability onset date, was 39 years old, which is classified as a younger individual aged 18-44 (20 C.F.R. §§ 404.1563, 416.963);
. She has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964);
. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Smith is “not disabled, ” whether or not she has transferable job skills (See SSR 82-41; 20 C.F.R. Part 404, Subpart P, Appendix 2);
. Considering Smith's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that she can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)); and
. Smith has not been under a disability, as defined in the Act, from December 14, 2011, through January 28, 2016, the date of the ALJ's decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).

(Tr. 13-18).

         The ALJ found Smith had no nonexertional limitations, and had an RFC to perform a full range of sedentary work. Because Smith's past relevant positions are defined in the Dictionary of Occupational Titles as “medium work, ” she has no past relevant work she can perform. (Tr. 17). However, because of Smith's age, education, previous work experience, and RFC, the ALJ found that the Medical-Vocational Guideline Rules 201.28-29 required a finding of “not disabled.” 20 C.F.R. Part 404, Subpart P, Appendix 2.

         A. Educational and Vocational Factors

         Smith was born on February 5, 1971, and was 44 years old at the time of the hearing in 2015. She is a high school graduate and has completed two years of college. She has past relevant work as a salvage laborer, home attendant, child monitor, and cook helper. (Tr. 17). At the time of the hearing, she lived in Carroll, Iowa, with four of her six children.

         B. Medical Evidence

         The following is a summary of the relevant medical evidence contained in the case transcript.

         On January 7, 2014, Smith visited the McFarland Clinic in Jefferson, Iowa, to establish care and get a referral for her back pain. (Tr. 568). The treating physician noted that she had severe scoliosis, with a 54-degree curve, and that she had chronic back pain, primarily on her left side. She stated that she did not want narcotics for the pain, but sought a referral so that she could obtain treatment for her back. She was taking Aleve for the pain. The treating physician referred her to Dr. Sarkis Kaspar, M.D. (Tr. 568).

         On February 25, 2014, Smith visited the McFarland Clinic in Ames, Iowa, for an appointment with Dr. Kaspar. (Tr. 550). Smith reported that she had been experiencing constant back pain for four years, which was often unbearable; she had to lean on a cart to get through a store. She stated that she was losing grip in her hands and could not zip her coat. (Tr. 550). One of her treatment providers at some point had offered her narcotic pain medications, but she had refused to take them. Dr. Kaspar did a physical examination. He diagnosed her with scoliosis, and recommended treatment, including a CT scan. Dr. Kaspar also noted that she was obese, with a body-mass index of 36.7%, and suspected that she suffered from carpal tunnel syndrome as well. An x-ray was performed, which revealed scoliosis in the lumbar spine, Harrington rod fixations, and degenerative changes in the sacroiliac joints. (Tr. 566). A CT scan of the lumbar spine revealed extensive thoracolumbar levoscoliosis, [2] no definite areas of significant spinal canal or neural foraminal stenosis, [3] and no acute fractures. (Tr. 567).

         On May 13, 2014, Smith visited the McFarland Clinic in Ames, Iowa, for a follow-up appointment with Dr. Kaspar. (Tr. 555). Dr. Kaspar stated that he would arrange a c-spine MRI to analyze Smith's hand paresthesia. He noted that Smith was taking Aleve and Tylenol for her back pain, and wanted to avoid stronger drugs. He reviewed her CT scan from February 2014; it revealed solid lumbar Harrington fusion and spondylosis below it, with some stenosis. He noted that she could try a caudal epidural, but she was strongly against any cortisone shots. She had never been to physical therapy. (Tr. 557). Dr. Kaspar noted that Smith was “able to live with most of these issues and her goal is to rehabilitate and function and ...


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