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Smith v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

March 30, 2015

MICHAEL G. SMITH, Plaintiff,



This is an action for judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") finding Plaintiff Michael Smith ("Smith") not entitled to Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act. See 42 U.S.C. ยงยง 416(i), 423(d), & 1382c(a)(3). This cause is before the Court on Plaintiff's objections to the Magistrate Judge's Report and Recommendation. For the reasons set forth below, we OVERRULE Plaintiff's objections and ADOPT the Magistrate Judge's Report and Recommendation, affirming the decision of the Commissioner.

Factual and Procedural Background


Plaintiff Michael Smith was fifty-eight years old when he applied for disability and Social Security benefits in February 2011. [R. at 53.] Smith alleged disability primarily due to a head injury he suffered in 2009. [R. at 13, 19.] He also reported limitations due to back pain and headaches. [R. at 35, 44.] Smith's treating physician from 2005 through 2012 was Dr. Abdul Sankari. [R. at 374, 399, 733.]

In March 2007, Plaintiff fell out of his semi-truck and lost consciousness. [R. at 259.] He was hospitalized and diagnosed with "mild traumatic brain injury/concussion." [ Id. ] CT scans showed a small hematoma, but Plaintiff "remained alert" and had "no complaints." [ Id. ] A CT scan of Plaintiff's spine showed "mild" to "moderate" degenerative changes. [R. at 248-50.] The hospital discharged him in stable condition, [ id. ], and several weeks later, Dr. Sankari reported Plaintiff was "doing well." [R. at 389.] Plaintiff returned to work as a truck driver in 2007 and continued working in 2008. [R. at 19.]

On March 19, 2009, Plaintiff was again hospitalized, this time after striking his head on his truck trailer. [R. at 270.] A CT scan of his spine showed degenerative disc disease. [R. at 277-78.] A CT scan of his head showed a "small left frontal subdural hematoma" and "mild" left frontal cerebral softening. [ Id. ] He complained of nausea, vomiting, and headache, and the hospital physician expressed concern because the symptoms appeared more severe than suggested by the "unremarkable" CT scan. [R. at 272-73.] The physician recommended additional evaluation. A CT scan and ultrasound of Smith's neck showed a thyroid nodule, but the nodule was benign. [R. at 275, 279, 622.] By March 21, 2009, Plaintiff's symptoms subsided, and the hospital discharged him [R. 270.]

Later that month, Plaintiff twice saw Dr. Sankari. He complained of a "dull, " sometimes "throbbing" head pain, [R. at 382], and "mild" left-side headaches. [R. at 379.] Overall, however, Plaintiff was "doing well, " and Dr. Sankari approved his "return to work with no restraints" in April 2009. [R. at 378.] Plaintiff returned to work that month. [R. at 376.] In August 2009, at his next appointment with Dr. Sankari, Plaintiff reported "poor short-term memory" as his only residual symptom. [R. at 376.] He did not mention headaches or back pain. [ Id. ] In January 2010, Plaintiff again complained of "poor memory, " but Dr. Sankari wrote that Plaintiff's condition was "stable" and secondary to his history of head injuries. [R. at 374.] Again, Plaintiff did not complain of headaches or back pain. [ Id. ]

The next year, Plaintiff worked for White Construction as a carpenter from November 16 to December 3. [R. at 186.] The White Construction site manager reported "no problems" with Plaintiff's ability to complete tasks, follow instructions, work with others, or maintain attendance. [R. at 186-87.] Plaintiff worked 40 to 60 hours each week and could "concentrate on assigned" tasks for the normal work periods. [R. at 186.]

In 2011, Plaintiff began the disability benefits process. Employees at a field office visit stated Plaintiff "seemed confused and had trouble answering questions regarding medical information." [R. at 177.] Plaintiff then saw Dr. Luella Bangura for a medical consultative examination. [R. at 435.] She noted a "shuffling gait" and opined that Plaintiff could not stand or walk for at least two hours; bend over; squat; lift less than ten pounds frequently; or lift more than ten pounds occasionally. [R. at 438-39.] She indicated no limitations on Plaintiff's range of motion [R. at 440], but stated Plaintiff had limitations related to memory, sustained concentration, and social functioning. [R. at 439.]

Next, Plaintiff saw consultative examiner Dr. Patrick Brophy for a psychological consultation. [R. at 442.] Dr. Brophy reviewed medical records from Dr. Sankari and from Plaintiff's 2009 hospital stay. [ Id. ] He acknowledged that the CT scans showed tissue loss in Smith's left frontal lobe. [R. at 445.] He noted Plaintiff's prior complaints of memory loss, and Plaintiff complained that "he was forgetting what to do at work." [ Id. ] Dr. Brophy then administered a Wechsler Memory Scale test and wrote that Smith's results showed "cognitive change." [R. at 444-45.] His overall "diagnostic impression" was "cognitive disorder" due to a "closed head injury." [R. at 445.] Nonetheless, Smith "acted as his own primary informant, " [R. at 443], and Dr. Brophy observed that Smith was "very precise about dates and details." [ Id. ] Smith also stated he had never sought psychiatric treatment. [ Id. ]

One week later, state agency doctor J. Gange reviewed Smith's records and concluded he did not have a "severe" mental impairment. [R. at 449.] Dr. Gange considered the results of Dr. Brophy's examination; a report from Smith's girlfriend; a report from White Construction; and Smith's own allegations. [R. at 461.] Relying largely on the White Construction report, he found that Smith "appears to function at a higher level than he alleges." [ Id. ] Dr. Gange completed a Psychiatric Review Technique Form and found Smith had no mental limitations on daily living; no mental limitations on social functioning; no episodes of decompensation; and "mild" difficulties in maintaining concentration, persistence, or pace. [R. at 459.]

Later that month, state agency medical expert Dr. J. Sands reviewed Plaintiff's records and determined Smith did not have a "severe" physical impairment. [R. at 463.] He found Smith's "neurological allegations" were "unsupported" by the record. [ Id. ] State agency reviewing consultant J.V. Corocan affirmed Dr. Sands' assessment. [R. at 465.] State agency psychological consultant Joelle Larsen likewise affirmed Dr. Gange's assessment. [R. at 464.]

Plaintiff returned to Dr. Sankari for an annual exam in October, 2011, almost two years after his last visit. [R. at 467.] He told Dr. Sankari he was applying for disability benefits and complained of "worsening low back pain." [ Id. ] Smith also described numbness in his lower left extremity, [ id. ], and Dr. Sankari observed a "[p]ossible mild left foot droop with walking." [R. at 468.] Dr. Sankari noted that Smith had a history of "poor memory" related to his head injury, but Smith did not complain of headaches or changes in his memory. [R. at 467.] At various times, Dr. Sankari also noted a history of hypertension and hyperlipidemia, [R. at 467, 751], but Plaintiff did not report related symptoms. [ Id. ]

In November, 2011, Plaintiff fell approximately 17 feet from a ladder while helping a friend install roof trusses. [R. at 45-46, 485.] He broke his right ankle and left knee and was hospitalized. [R. at 536.] Orthopedic surgeon Michael Highhouse repaired the fractures. [ Id. ] While hospitalized, Smith underwent a CT scan on his upper spine, lumbar spine, and head. The upper spine CT scan showed disc space narrowing; mild degenerative changes at the C5-C6 and C6-C7 interspace levels; and "mild to moderate degenerative change" in the C2-C3, C3-C4 and C4-C5 levels. [R. at 617, 809.] It showed no fractures or dislocations. [ Id. ] The lumbar spine CT showed degenerative cysts and degenerative disc disease, but no significant disc bulge, herniation, or stenosis. [R. at 620, 808.] The head CT scan showed that the previously observed tissue loss in Smith's left frontal lobe remained unchanged. [R. at 619, 810.]

After being discharged, Smith had follow-up appointments with Dr. Highhouse, who stated Smith was "coming along well" and had "no acute problems." [R. at 471.] In December 2011, Smith told Dr. Highhouse that he wanted to return to work as a supervisor, and Dr. Highhouse wrote that it would be "reasonable" to do so. [ Id. ] Highhouse opined that Smith should avoid uneven surfaces and heights, but could otherwise "stand as a supervisor." [ Id. ] Further, Dr. Hightower stated Smith would be able to return to activities as tolerated within three to four months. [ Id. ] Smith also underwent physical therapy with Dr. Mark Griffith, who reported that Smith made good progress, [R. at 503, 512], and had good range of motion. [R. at 783.]

By February of 2012, Smith's fractures were "well-healed" and X-rays showed no evidence of complications. [R. at 472.] Smith reported "intermittent pain, " but received medication to manage it. [ Id. ] Dr. Highhouse released Smith and referred him to his primary care physician for any lingering symptoms. [ Id. ]

Plaintiff continued to visit Dr. Sankari in late 2011 and in 2012. In November 2011 [R. at 790], January 2012 [R. at 772], and July 2012 [R. at 745], Smith denied suffering from any headaches. At each appointment, Dr. Sankari noted "short-term memory loss" in Smith's medical history, but did not include back pain or similar conditions. [R. at 744, 772, 789.] Dr. Sankari also found Smith had no acute focal motor or sensory deficits. [R. at 752, 773, 790.]

In May 2012, Dr. Sankari completed a form for the Indiana Carpenters Pension Fund, in which he stated Smith was totally and permanently disabled due to a history of "subdural hematoma and long term problems with short and long term memory." [R. at 814.] Dr. Sankari indicated Smith had been disabled since March 2007. [ Id. ] In July 2012, Dr. Sankari completed a Medical Source Statement ("MSS") describing Smith's ability to do work-related activities. [R. at 734.] He indicated Smith could sit or stand for two hours at a time; walk for an hour at a time; occasionally stoop or climb; and perform daily activities; but could not kneel or crouch; lift more than twenty pounds; or carry more than ten pounds. [R. ...

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