United States District Court, D. Nebraska
LYLE G. SMITH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER
CHARLES S. MILLER, Jr., Magistrate Judge.
Lyle G. Smith filed a complaint on May 17, 2013, against Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration. (ECF No. 1.) Smith seeks a review of the Commissioner's decision to deny his application for supplemental security income benefits under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 1381 et seq. The defendant has responded to Smith's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 9, 10). In addition, pursuant to the order of Senior Judge Richard G. Kopf, dated July 31, 2013, (ECF No. 13), each of the parties has submitted briefs in support of his or her position. (See generally Pl.'s Br., ECF No. 14; Def.'s Br., ECF No. 19, Pl.'s Reply Br., ECF No. 20). After carefully reviewing these materials, the Court finds that the Commissioner's decision must be affirmed.
I. PROCEDURAL HISTORY
Smith filed an application for disability benefits under Title XVI on July 7, 2010. (Tr. 166). His claim was denied initially on September 30, 2010, and on reconsideration on November 5, 2010. (Tr. 106, 113). Smith requested a hearing before an administrative law judge (ALJ) (tr. 117), and the hearing was held on February 15, 2012. (Tr. 28-61). In a decision dated March 23, 2012, the ALJ found that Smith had not been under a disability since July 7, 2010, the date of the application for benefits. (Tr. 10).
An ALJ is required to follow a five-step sequential analysis to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must continue the analysis until the claimant is found to be "not disabled" at steps one, two, four or five, or is found to be "disabled" at step three or step five. See id.
Step one requires the ALJ to determine whether the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), (b). The ALJ found that Smith was not engaged in substantial gainful activity.
Step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. § 404.1520(c). A "severe impairment" is an impairment or combination of impairments that significantly limits the claimant's ability to do "basic work activities"and satisfies the "duration requirement." See 20 C.F.R. § 404.1520(a)(4)(ii), (c); id. § 404.1509 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months."). Basic work activities include "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling"; "[c]apacities for seeing, hearing, and speaking"; "[u]nderstanding, carrying out, and remembering simple instructions"; "[u]se of judgment"; "[r]esponding appropriately to supervision, coworkers and usual work situations"; and "[d]ealing with changes in a routine work setting." 20 C.F.R. § 404.1521(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c).
The ALJ found that Smith had the following severe impairments: seizure disorder, depressive disorder/dysthymia, and marijuana dependence. (Tr. 12). The ALJ determined that although Smith had been diagnosed with hypertension, it was controlled with medication when taken as prescribed, and Smith had not established that the hypertension had imposed any significant limitations on his ability to perform basic work activities. (Tr. 12). In addition, Smith alleged disability due to chronic back pain, acid reflux, restless leg syndrome, incontinence, poor eyesight, and obesity. He did not establish that any of these impairments imposed any significant limitations on his ability to perform basic work activities. (Tr. 12-14).
Step three requires the ALJ to compare the claimant's impairment or impairments to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see also 20 C.F.R. Part 404, Subpart P, App'x 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). If the claimant has an impairment "that meets or equals one of [the] listings, " the analysis ends and the claimant is found to be "disabled." See 20 C.F.R. § 404.1520(a)(4)(iii), (d). If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. See 20 C.F.R. § 404.1520(a). The ALJ found that Smith did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments.
Step four requires the ALJ to consider the claimant's residual functional capacity (RFC) to determine whether the impairment or impairments prevent the claimant from engaging in "past relevant work." See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). The ALJ found that Smith was capable of performing past relevant work as an auto detailer. (Tr. 20).
At step five, the ALJ must determine whether the claimant is able to do any other work considering his RFC, age, education, and work experience. If the claimant is able to do other work, he is not disabled. The ALJ determined that Smith had the RFC to perform medium work as defined in 20 C.F.R. § 416.967(c), meaning that he maintained the ability to lift up to 50 pounds on occasion and 25 pounds on a frequent basis and could stand for six hours and sit for six hours during an eight-hour day. He had unlimited use of his extremities. He could occasionally climb stairs and even ladders, although he should avoid frequently doing so. He should avoid exposure to concentrated vibration, hazards, such as heights and machinery, and commercial driving. He was limited to simple work with no detailed instructions or being able to follow detailed instructions. The ALJ stated that Smith should not work with the general public where there would be a lot of interaction. He had no problems with concentration, but sometimes had loose association which might be a limitation. Smith interacted well with others, but had some minor limitation in dealing with changes, so, the ALJ stated that Smith should seek work with a more repetitive nature. (Tr. 15).
The ALJ found that Smith was not disabled and would be able to perform the requirements of representative occupations such as hospital or industrial cleaner, kitchen helper, garment sorter, and housekeeper, all of which had a significant number of jobs in the regional and national economy. (Tr. 21).
The Appeals Council of the Social Security Administration denied Smith's request for review on March 22, 2013. (Tr. 1-5.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Smith seeks judicial review.
II. FACTUAL BACKGROUND
A. Medical Evidence
Smith, who was born on April 16, 1962, (Tr. 92), asserted that he had a number of health concerns, including seizure disorder, chronic back pain, incontinence, obesity, depression, and anxiety disorder. (Tr. 94). His application for benefits alleged an onset date of May 7, 2005, but he later amended the onset date to July 15, 2010. (Tr. 190). The record does not indicate that any specific event led to his health issues.
Smith was diagnosed with a convulsive disorder after having a seizure and being taken to the hospital on July 8, 2008. (Tr. 279). He had a second seizure in the hospital. (Tr. 294). A CT scan found no acute intracranial hemorrhage. (Tr. 301). He was discharged on July 10, 2008, after being given a prescription for Dilantin. (Tr. 280). The record does not include evidence of any further seizures.
Rachel Kozol, APRN, treated Smith from August 2005 to December 2011. (Tr. 335-38, 442-600). Her treatment notes reflect that Smith's depression and anxiety were the most common topics for their appointments. In January 2010, Smith reported that his depression and anxiety had been controlled but he had low frustration tolerance, got easily overwhelmed, had poor self-esteem, and was preoccupied with not being able to date. (Tr. 422). His mood was neutral and his affect was congruent. (Tr. 422). His GAF was 50. (Tr. 423). By May 2010, Smith reported improvement in his depression and anxiety with Cymbalta. (Tr. 418). He reported no stress, but had chronic back pain. His mood was euthymic and his affect congruent. (Tr. 418). His GAF was 55. (Tr. 419).
Kozol's notes show that in June 2010, Smith reported that his overall depression had been controlled, and he continued to use marijuana on an intermittent basis. (Tr. 424). By January 2011, Smith reported no depression or anxiety, but he said his energy level was low. (Tr. 508). His mood was euthymic and his GAF was 55. (Tr. 509). In August 2011, Smith continued to deny any depression, but he had some anxiety related to chronic back and neck pain. (Tr. 500). His mood was euthymic and his affect was congruent. (Tr. 500). His GAF was 55 and he was making fair progress toward his goals. (Tr. 501). In December 2011, Smith again denied any depression or anxiety. (Tr. 599). He reported some marijuana use to deal with chronic back and neck pain. (Tr. 599). Kozol stated that Smith's GAF remained at 55. (Tr. 600).
Beginning in March 2009, Smith attended a daily rehabilitation program at Community Alliance Rehabilitation Services in Omaha. (Tr. 341). In an initial assessment, Smith identified his concerns as decreased sleep, isolation, depression, crying, and excessive worrying. (Tr. 341). He was diagnosed with major depression disorder and cannabis dependence, and his GAF was 55. (Tr. 341). He described his depression symptoms as crying spells, isolation, negative thoughts about his past mistakes, hopelessness, and suicidal thoughts. He rated his current level of depression as a four on a scale of one to 10. (Tr. 342). Smith denied any problems maintaining focus or concentration, but he worried about finances and disappointing his family. He coped by going to church, sewing, doing crossword puzzles, or woodworking. (Tr. 342). He appeared depressed and had a blunted affect. His judgment and insight were intact.
A physical health assessment on March 18, 2009, at Community Alliance showed that Smith's physical health was average. He reported low back pain but was unsure of the cause. (Tr. 344). He stated that he took medication for hypertension and elevated cholesterol. (Tr. 345). Smith rated his physical health as nine on a scale of one to 10 with 10 being "healthy as a horse." (Tr. 346).
A mental health assessment at Community Alliance on March 25, 2009, reported that Smith had euthymic mood and congruent affect. (Tr. 346). He stated he would like to work but was not sure what kind of work he wanted to do. (Tr. 347). Smith was able to take care of his own personal hygiene and safety. (Tr. 347). He was able to maintain his home, shop for groceries, and prepare his own food. (Tr. 347). Smith reported using cannabis for back pain, muscle spasms, and sleep. (Tr. 349). Although he admitted to being a marijuana addict, Smith did not want to receive treatment and did not believe that Alcoholics Anonymous or Narcotics Anonymous would be helpful. (Tr. 349).
Smith continued participation in programs at Community Alliance until 2012. In September 2011, treatment notes indicate that Smith had maintained boundaries with peers and family. He was regularly attentive and engaged in group settings and generally positive in outlook and presence. He was at medium risk of relapse with excellent understanding of mental health issues. (Tr. 531). On January 31, 2012, it was reported that Smith maintained excellent activities of daily living and a positive outlook. (Tr. 609). He maintained a leadership role in the program. He continued to seek representation for disability, but expressed acceptance of his living situation "as is." He was at medium risk of relapse due to a history of marijuana use, but he was in the maintenance stage of recovery. (Tr. 609).
Rodger Gerberding, a team leader at Community Alliance, wrote a letter on February 10, 2012, in which he stated that Smith attended the day rehabilitation program on a regular basis with enthusiasm. (Tr. 615). He was focused, good-humored and approachable with continual symptoms of grief, tearfulness and helplessness. (Tr. 615). It was recommended that Smith continue with the program for ongoing mental health stability. A disability award would significantly improve his quality of life in terms of supporting ongoing recovery and increased self-esteem. (Tr. 616).
On January 30, 2012, Smith went to the County Health Center to seek care for back pain and poor bladder control. (Tr. 604). He reported that he had more pain during cold weather. Smith said his anti-inflammatory medication was not as helpful as it had been, and he reported side effects from the bladder control medication. The examiner diagnosed back pain with "some mild radiculopathy, " obesity, depression, and urinary incontinence. (Tr. 603). Smith's anti-seizure medication was refilled and he was advised to lose weight. Testing was ordered to determine the source of Smith's incontinence. (Tr. 603).
B. Medical Opinion Evidence
Smith was referred by Disability Determinations for a psychological interview with Amy T. Corey, Ph.D., on August 25, 2008. (Tr. 307). Smith reported that between the ages of 13 and 40, he smoked two to three marijuana cigarettes daily. At the time of the interview, he reported smoking half a cigarette two to three times a week for pain management. (Tr. 309).
Smith reported his last job had been as a delivery driver, which he quit because he had difficulty with his eyesight and depression. He had been unemployed for the last six or seven years. (Tr. 309). Smith reported that four years earlier, he experienced depressed mood and cried a lot. Since that time, he had made positive changes and felt better. He participated in church and attended a support group. He received emotional support from friends and family. He was taking Zoloft, but was not involved in ...