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Smith v. Colvin

United States District Court, D. Nebraska

May 28, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


LAURIE SMITH CAMP, Chief District Judge.

Larry Dean Smith, Jr., filed a complaint on April 26, 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 disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., and supplemental security income (SSI) benefits under Title XVI of 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. 7, 8). In addition, pursuant to the order of Magistrate Judge Thomas D. Thalken, dated August 8, 2013, (ECF No. 11), 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.


Smith, who was born on May 18, 1990, (Tr. 10, 38) filed an application for disability benefits under Title II on February 25, 2011, and an application for SSI benefits under Title XVI on February 25, 2011. (Tr. 10, 105-12). He alleged an onset date of May 18, 1990, or birth. (Tr. 10). His claim was denied initially on March 29, 2011, and on reconsideration on June 3, 2011. (Tr. 10, 44, 53). Smith requested a hearing before an administrative law judge (ALJ) (tr. 10, 57), and the hearing was held on April 30, 2012. (Tr. 20-33). In a decision dated May 8, 2012, the ALJ found that Smith was not disabled. (Tr. 15).

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 had not been engaged in substantial gainful activity since October 1, 2010, the earliest date of insurance coverage. (Tr. 12).

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), 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, co-workers 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 impairment: diabetes mellitus, type 1. (Tr. 12).

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. (Tr. 12).

Step four requires the ALJ to consider the claimant's residual functional capacity (RFC)[1] 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 had no past relevant work. (Tr. 14).

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 found that Smith had the RFC to perform the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) 416.967(b). (Tr. 13). Because Smith had no past relevant work, transferability of job skills was not an issue. (Tr. 14). The ALJ determined that there are jobs that exist in significant numbers in the national economy that Smith could perform. (Tr. 14). Therefore, Smith had not been under a disability from October 1, 2010, through the date of the decision. (Tr. 15). The Appeals Council of the Social Security Administration denied Smith's request for review on February 25, 2013. (Tr. 1-6.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Smith seeks judicial review.


A. Medical Evidence

Smith was diagnosed with new onset diabetes mellitus, type 1, after going to the hospital on November 16, 2010. (Tr. 227, 233). At that time, he reported no numbness or weakness in his extremities. (Tr. 237). His motor strength was full on both upper and lower extremities and he had normal muscle tone and deep tendon reflexes. (Tr. 237). He had no evidence of diabetic ketoacidosis (DKA). (Tr. 237).

On November 19, 2010, Smith saw Victor Adalbert G. de Villa, M.D., an endocrinologist, for an initial consultation for management of diabetes. (Tr. 198-201). Smith reported that he was receiving insulin by injection and that he was satisfied with that treatment. He said the increased thirst and nocturia he had earlier were improving. Smith reported no associated tingling and numbness in fingers or toes, blurred vision, fatigue, chest pain, shortness of breath, foot pain, or calf claudication. (Tr. 198). Smith was reported to be cooperative and well-groomed, not anxious or depressed, and wellnourished and well-hydrated. (Tr. 199).

On January 6, 2011, Smith reported peripheral neuropathy to his primary care physician, Janet Bernard, M.D. (Tr. 276). He was prescribed Neurontin, and a few weeks later, Mobic was added to his medication regimen after Smith reported that Neurontin was not helping with the pain. Smith described the pain as a throbbing, achy pain, but he could not tell if it was in the front or back of his leg. Smith said the pain did not extend down to his feet and he had no numbness. (Tr. 276).

On January 26, 2011, Dr. de Villa reported that the control of Smith's diabetes had improved significantly. (Tr. 202, 204). Smith reported calf pain with walking. (Tr. 202). The Mobic was stopped on February 3, 2011, because it had not helped the peripheral neuropathy. (Tr. 276). Smith was directed to continue with Neurontin and add Tramadol. Dr. Bernard noted that she wanted to try to find a non-narcotic drug that would help with neuropathy. (Tr. 248). On February 13, 2011, Smith went to the hospital complaining of lower extremity pain that had started several months earlier but was not improving. (Tr. 224). He was alert and oriented. His range of motion was normal, he had normal gait, and he had no motor deficit. (Tr. 225). A few days later, Dr. Bernard noted that she was hesitant to start narcotics because Smith was "just a set up for addiction." She added an antibiotic and additional pain relievers to his medication regimen. (Tr. 249).

On April 26, 2011, Smith reported that his diabetic neuropathy was a little better. Dr. Bernard stated that she would provide a letter for attorneys to help him get disability. She directed Smith to continue his current medications. She offered Ketamine cream for the neuropathy, but because of the cost and because his feet were feeling better, Smith declined to try the cream. (Tr. 264).

In April 2011, Dr. Bernard wrote a letter to a law firm in support of Smith's request for disability. (Tr. 266). She noted that he had a "terrible time" with severe diabetic neuropathy and had "great difficulty with pain and balance" because of the neuropathy. She stated that she did not think he would be able to work for at ...

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