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Smits v. Colvin

United States District Court, E.D. Kentucky, Central Division, Lexington

February 6, 2015

BRENDA SMITS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



The plaintiff, Brenda Smits, seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c), of an administrative decision of the Commissioner of Social Security ("Commissioner") denying her application for Child's Insurance Benefits. The Court, having reviewed the record and for the reasons stated herein, will grant Smits' Motion for Summary Judgment [R. 15], and deny that of the Commissioner [R. 18]. Accordingly, this case will be remanded for further proceedings.


There is no question that Smits presently has a disabling visual impairment, and has been so disabled since September 19, 1985. [Transcript ("Tr.") 105.] Smits suffers from optic atrophy which is a congenital disease that has negatively affected her vision. [R. 15-1; Tr. 161, 256-260, 448.] Smits current application does not, however, concern her present condition. Rather, she seeks Child's Insurance Benefits ("CIB") for the time period between her eighteenth and twenty-second birthdays (beginning on November 21, 1966, and continuing through 1970). [Tr. 35, 99.] CIB benefits are available to individuals who (1) are disabled (as defined by 12 U.S.C. § 423(d)) before they reach the age of 22, and (2) are unmarried at the time of their application, if they are (3) the dependent child of a person entitled to either old age, disability insurance benefits or are fully insured at the time of their death. 42 U.S.C. § 402(d). Smits' CIB claim is based on the death of her father, Peter Smits, who was the qualifying wage earner and passed away on July 17, 2005. [Tr. 99, 103.]

Smits filed her application for CIB in August, 2010. [Tr. 99-100.] It was initially denied and then denied again upon reconsideration [Tr. 51-54, 56-58.] An Administrative hearing was conducted before Administrative Law Judge ("ALJ") Don C. Paris on November 29, 2011. [Tr. 26-33.] On January 13, 2012, ALJ Paris issued a decision denying CIB to Smits. [Tr. 18-22.]

In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. § 404.1520.[1] First, if a claimant is performing a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not "disabled" as defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is "disabled." 20 C.F.R. § 404.1520(d). Before moving to the fourth step, the ALJ must use all the relevant evidence in the record to determine the claimant's residual functional capacity (RFC), which assesses an individual's ability to perform certain physical and mental work activities on a sustained basis despite any impairments experienced by the individual. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545. Fourth, the ALJ must determine whether the clamant has the RFC to perform the requirements of his past relevant work, and if a claimant's impairments do not prevent him from doing past relevant work, he is not "disabled." 20 C.F.R. § 404.1520(e). The plaintiff has the ultimate burden of proving compliance with the first four steps. Kyle v. Comm'r Of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010). Fifth, if a claimant's impairments (considering his RFC, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is "disabled." 20 C.F.R. § 404.1520(f).

In this case, ALJ Paris preliminarily determined that Smits had not attained the age of 22 as of the alleged onset date of November 21, 1966. [Tr. 20.] At Step one, the ALJ found that Smits had not engaged in substantial gainful activity since that alleged onset date. [Tr. 20.] At Step two, the ALJ found that as of the date that Smits turned 22, November 20, 1970, there were "no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment." [ Id. ] Based on this lack of evidence, ALJ Paris issued an unfavorable decision, finding that Smits was not disabled during the relevant timeframe and, therefore, not eligible to receive CIB. [Tr. 22.] The Appeals Council found no reason for review on May 15, 2013 [Tr. 1-6] and Smits now seeks judicial review in this Court.


This Court's review is limited to whether the Commissioner applied the correct legal standards and whether there is substantial evidence in the record to support the ALJ's decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997); Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990). "Substantial evidence" is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The substantial evidence standard "presupposes that there is a zone of choice within which [administrative] decisionmakers can go either way, without interference by the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ( en banc ) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

In determining the existence of substantial evidence, courts must examine the record as a whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citation omitted); see also Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

Smits raises two arguments on appeal to this Court. First, she argues that the ALJ erred by not applying Social Security Ruling 83-20, requiring her to provide contemporaneous medical records to prove her disabling condition, and by failing to order a consultative exam. [R. 15 at 4.] Second, Smits argues that the ALJ failed to give proper weight to the opinions of her treating physicians, Dr. James Ferrell, and Dr. Woodford VanMeter. [R. 15 at 6.]



To be entitled to CIB, amongst other things, an applicant must demonstrate that they had a disability that began before they were 22 years old. 20 C.F.R. § 404.350(a)(5). As explained earlier, there is no question that Smits has had a disabling visual impairment since September 19, 1985. [Tr. 105.] This does not mean, however, that Smits was necessarily disabled between 1966 and 1970. See Stringer v. Astrue, 465 F.Appx. 361, 365 (5th Cir. 2012) ("[A] finding that [the claimant] ...

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