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Smith v. Berryhill

United States District Court, E.D. Kentucky, Southern Division

March 29, 2019

LEEANN NICOLE SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD, SENIOR U.S. DISTRICT JUDGE

         Plaintiff Leeann Nicole Smith brings this matter under 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Acting Commissioner of Social Security. The Court, having reviewed the record and the cross motions for summary judgment filed by the parties, will AFFIRM the Commissioner's decision because the claimant has failed to properly raise any arguments demonstrating remand is warranted and the ALJ's decision is supported by substantial evidence.

         I. Standard for Determining Disability

         Under the Social Security Act, a disability is defined as “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 12 months.” 42 U.S.C. § 423(d)(1)(A). In determining disability, an Administrative Law Judge (“ALJ”) uses a five-step analysis. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). Step One considers whether the claimant is still performing substantial gainful activity; Step Two, whether any of the claimant's impairments are “severe”; Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform past relevant work; and, if necessary, Step Five, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. Id.; see also Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

         II. Procedural and Factual History

         Smith filed an application for supplemental security income (“SSI”) on August 9, 2013, alleging disability as of July 31, 2010. [TR 237]. Smith alleged disability due to mental impairments, including depression, dipolar disorder, a learning disability, and paranoia. [TR 268]. Smith's application for benefits was denied initially and upon reconsideration.

         A. Medical Evidence at Issue

         In May 2014, Dr. Naushad Haziq performed a consultative internal medicine exam. [TR 544-50]. Dr. Haziq's exam noted that Smith complained of “depression, bipolar disorder, a learning disability, and paranoia” but Smith presented with no physical complaints. [TR 544]. Dr. Haziq noted a “longstanding history of anxiety, bipolar disorder, learning, and depression, since age 10” but noted that Smith was not taking medications for these disorders at the time of the exam. [Id.]. Dr. Haziq also reviewed records from the Manchester Memorial Hospital and from he Willowbrook Women's Center. [TR 545].

         In his examination notes, Dr. Haziq stated that Smith “appear[ed] very anxious, ” was “trembling, ” and “could not sit still.” [TR 546]. Dr. Haziq noted that Smith was somewhat tearful and cried at times during the exam. [Id.]. Additionally, Dr. Haziq made a general observation that Smith could speak understandably and follow instructions without difficulty. [Id.]. Finally, Dr. Haziq listed his impression as “moderate to severe anxiety.” [TR 547].

         Additionally, records from physician's assistant Crystal Smith, PA-C, reflect diagnoses of an unspecified anxiety disorder, major depressive disorder, and fatigue, among other physical symptoms and complaints. [TR 551]. Medical records indicate that Smith had been treated with prescription medication Sertraline.[1][TR 552]. Otherwise, Smith's primary care medical records demonstrate no significant medical treatment for mental health impairments or issues. [TR 551-53].

         In November 2013, Dr. Timothy L. Baggs, Psy.D., performed a consultative examination on Smith. [TR 533-42]. Smith reported that she was applying for benefits due to bipolar disorder, depression, and anxiety. [TR 533]. Smith stated that she had been impacted by these mental health issues her entire life. [Id.].

         Dr. Baggs inquired about Smith's symptoms related to her mental health impairments. Smith reported that she did not feel like herself, was very paranoid, and was experiencing insomnia. [TR 535]. Smith stated that she had difficulty getting along with other people and wanted to stay in bed constantly. [Id.]. Still, Smith noted no required psychiatric hospitalization but reported that she had participated in a program through Comprehensive Care in 2009. [TR 535].

         Furthermore, Smith reported that she had a troubled childhood, had difficulty in school, struggled with drug dependency issues, and had past legal issues. [TR 533-537]. Smith reported that she was on a Suboxone program related to substance abuse issues. [TR 536].

         Based on result of the examination, Dr. Baggs stated that Smith presented as a woman who was experiencing drug addiction. [TR 539]. Dr. Baggs also noted that Smith reported experiencing bipolar disorder but said that “questioning of the claimant this date would not tend to suggest symptoms of sufficient amount to warrant diagnosis.” [Id.]. Furthermore, Dr. Baggs stated that Smith had difficulty articulating symptoms of depression other than reporting that she was socially withdrawn and was experiencing insomnia. [Id.]. As a result, Dr. Baggs's primary diagnosis was drug addiction, not any mental health impairment or disorder. [Id.].

         Finally, Dr. Baggs opined that Smith had the ability to understand and remember simple instructions, seemed capable of maintaining sustained concentration and persistence in the completion of a task in a normal amount of time, and could respond and adapt effectively to pressures found in normal work settings. [TR 40].

         Additionally, state agency medical consultants Drs. Jack Reed and Laura Cutler reviewed Smith's medical records. Dr. Reed found that Smith has no medically determinable physical impairment. [TR 104-05]. Dr. Cutler opined that Smith had mild restriction in activities of daily living, and had moderate difficulties in maintaining social functioning, concentration, persistence, and pace. [TR 106].

         B. Administrative Hearing

         On February 25, 2016, Smith appeared at an administrative hearing before ALJ Donald A. Rising.[2] [TR 45-84]. Smith was represented by attorney Kenneth Stepp at the administrative hearing.

         At the hearing, Smith reported that she lived in a mobile home with her husband and father-in-law. [TR 51]. She stated that she has a ninth-grade education and that while she had thought about getting a GED, she had not taken any steps to acquire a GED. [Id.]. Smith reported that she could read but had difficulty understanding what words mean. [Id.]. Smith reported that she had worked intermittently in food service jobs but that she quit because she was unable to deal with the customers and other employees. [TR 53-54].

         Smith was also asked about the medical problems that prevent her from working. Smith stated that she was disabled due to her anxiety. [TR 55]. When asked whether she got treatment for anxiety or took medication Smith responded, “Yeah, I do, and that's what I'm trying to tell you, is I don't know. You have to look at these papers. I don't have . . . no idea what you're talking about or nothing. You just have to look at these papers.” [TR 55-56]. When the ALJ asked what Smith was referring to by “these papers” and whether she was referring to school records, Smith curtly replied, “All of it.” [TR 56]. Smith also reported that she had taken Zoloft off and on for a few years, which helps with her anxiety. [TR 57-58]. Smith reported that she was a “nervous wreck” at the hearing and stated that she did not get along with people. [TR 58-59].

         The ALJ also discussed physical problems with Smith. Smith reported that she had hepatitis C and suffered from restless leg syndrome. [TR 59-60]. Smith reported that hepatitis C caused symptoms including “being sick to your stomach, headache, no appetite, [and] loss of weight.” [TR 60-61]. Smith stated that she suffered from these symptoms of a daily basis and that, while she took no medicine for hepatitis C, she was supposed to have a biopsy of her liver. [TR 61].

         Next, the ALJ asked Smith about her restless leg syndrome and her ability to stand and sit. [TR 62]. Smith reported that she could only stand for around ten minutes and that if she stood for a longer period, she would feel like she was going to pass out. [Id.]. Smith also noted ...


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