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Smullen v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

August 29, 2016

TINA L. SMULLEN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on the petition for judicial review of the decision of the Commissioner filed by the plaintiff, Tina L. Smullen, on July 23, 2015.[1] For the following reasons, the decision of the Commissioner is AFFIRMED.


         The plaintiff, Tina L. Smullen, filed an application for Supplemental Security Income on January 25, 2013, alleging a disability onset date of November 25, 2012. (Tr. 23). The Disability Determination Bureau denied Smullen's application on April 8, 2013, and again upon reconsideration on June 19, 2013. (Tr. 23). Smullen subsequently filed a timely request for a hearing on August 15, 2013. (Tr. 23). A hearing was held on June 26, 2014, before Administrative Law Judge (ALJ) William D. Pierson, and the ALJ issued an unfavorable decision on September 20, 2014. (Tr. 23-37). Vocational Expert (VE) Marie N. Kieffer and Smullen testified at the hearing. (Tr. 23). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 9-12).

         At step one of the five step sequential analysis for determining whether an individual is disabled, the ALJ found that Smullen had not engaged in substantial gainful activity since November 25, 2012, the alleged onset date. (Tr. 26). At step two, the ALJ determined that Smullen had the following severe impairments: obesity; minimal to mild left heel spurs; mild degenerative knee changes; mild degenerative disc disease of the cervical and lumbar spines; diabetes mellitus with neuropathy; asthma; bilateral hearing loss; and borderline intellectual functioning. (Tr. 26). At step three, the ALJ concluded that Smullen did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 26). Specifically, he found that Smullen did not meet any of the following: Listing 1.02, major joint dysfunction; Listing 1.04, spine disorders; Listing 2.10, hearing loss without cochlear implantation; Listing 3.02, chronic pulmonary insufficiency; Listing 3.03, asthma; Listing 11.14, peripheral neuropathies; and Listing 12.02, organic mental disorders. (Tr. 27-28).

         When determining whether Smullen met Listing 12.02, the ALJ considered the Paragraph B criteria. (Tr. 28-29). He indicated that Smullen's mental impairment would satisfy the Paragraph B criteria if it resulted in at least two marked restrictions or one marked restriction and repeated, extended episodes of decompensation. (Tr. 28). The ALJ found that Smullen had no limitations in daily living activities because she reported only physical difficulties with hygiene, cooking, cleaning, shopping, and handling money. (Tr. 28). He also found that Smullen had not established any social functioning limitations that would last at least twelve months. (Tr. 28). In March 2013, Smullen reported that she had no problems relating to family, friends, or neighbors, that she talked to her family daily, that she visited her children and grandchildren frequently, that she got along with authority figures, and that she had not lost any jobs due to an inability to get along with others. (Tr. 28). However, Smullen did testify that she took medication for mood swings, which had caused problems for years. (Tr. 28-29). She also testified that her medication helped her mood swings and that her treating physician did not recommend mental health counseling. (Tr. 29). The ALJ noted that Smullen did not allege mood swings in her Function Report, and that Dr. Tallon did not find that Smullen's mood swings would affect her ability to work. (Tr. 29).

         The ALJ found that Smullen had moderate difficulties in concentration, persistence, or pace. (Tr. 29). He noted that Smullen had borderline intellectual functioning, which could affect her concentration, persistence, or pace. (Tr. 29). However, Smullen testified that she had no difficulty with basic reading or writing and that she could follow written and verbal instructions. (Tr. 29). Additionally, the consultative psychologist indicated that Smullen could handle her own finances and complete her daily living activities. (Tr. 29). The ALJ concluded that Smullen had not experienced any extended episodes of decompensation. (Tr. 29). The ALJ determined that Smullen did not satisfy the Paragraph B criteria because she did not have two marked limitations or one marked limitation and repeated episodes of decompensation. (Tr. 29). The ALJ also found that Smullen did not satisfy the Paragraph C criteria. (Tr. 29).

         The ALJ then assessed Smullen's residual functional capacity (RFC) as follows:

the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can sit 6 hours out of an 8-hour workday; can stand and/or walk 2 hours out of an 8-hour workday; can lift, carry, push, and pull 10 pounds frequently and occasionally; can occasionally kneel, crouch, crawl, balance and squat; can do no overhead work activity or overhead reaching; cannot perform work in an environment involving more than a moderate level of noise; is not limited in fine and gross manipulation; cannot climb ladders, ropes, and scaffolds; can occasionally use stairs and ramps, but no more than 1 to 2 flights with handrails; can occasionally bend and stoop; cannot work within close proximity to hazards of open heights or hazardous machinery or wet surfaces; cannot perform work requiring frequent exposure to airborne particulates such as dusts, gases and fumes; must avoid extreme humidity, heat, and cold; is limited to simple, routine and repetitive tasks, and is able to remember simple work-like procedures and maintain the concentration required to perform simple tasks; and is limited to basic reading skills such as those required to read lists and address labels.

(Tr. 30). The ALJ explained that in considering Smullen's symptoms he followed a two-step process. (Tr. 30). First, he determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that reasonably could be expected to produce Smullen's pain or other symptoms. (Tr. 30). Then, he evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Smullen's functioning. (Tr. 30). The ALJ found that Smullen's impairments could cause her alleged symptoms, but that she was not entirely credible regarding the intensity, persistence, and limiting effects of the symptoms. (Tr. 30-31).

         Smullen testified that she could go out alone and drive to Wal-Mart and her daughter's home, which were nearby, but that she avoided going to places with a large number of people. (Tr. 31). However, the ALJ indicated that no medical evidence showed an impairment that would cause any fear or difficulty in crowds. (Tr. 31). Smullen reported that she had no difficulty with basic reading and writing or following instructions, but she also stated that she took special education classes in school and that she had a bad memory. (Tr. 31). Considering her testimony, the ALJ concluded that any memory issues would not preclude simple, routine, and repetitive tasks. (Tr. 31).

         Smullen reported hearing loss that made it difficult for her to understand what people were saying. (Tr. 31). She admitted that hearing aids could improve this, but she stated that she could not afford them. (Tr. 31). However, the ALJ and the consultative examiner did not notice any hearing issues during their interactions with Smullen. (Tr. 31). During the hearing, the ALJ asked Smullen whether her insurance would cover the costs of hearing aids. (Tr. 31). Dr. Bacchus found hearing loss, but he concluded that she could recognize words 84% on her left and 96% on her right. (Tr. 31).

         Smullen claimed that she could not work because she had problems sitting, standing, and walking due to foot pain and numbness. (Tr. 31). She testified that walking caused back and neck pain, which occasionally radiated to her hips and buttocks or into her left shoulder respectively, that she could walk twenty to thirty minutes, and that she could sit for thirty to forty-five minutes in certain chairs. (Tr. 31). Smullen reported that she cared for her six grandchildren during the summer for three to four hours a day. (Tr. 32). Despite claiming that she had difficulty using her left arm above her head, the consultative physician did not find any neck or shoulder restrictions. (Tr. 32).

         The ALJ noted that Smullen claimed her walking difficulties started in March or May 2013, which was after her alleged onset date, that her diabetic medications helped her symptoms, that she did not follow her diet, that her blood sugar levels were normal, that she did not have significant feet ulcers, and that her podiatrist provided only inserts. (Tr. 32). Additionally, the ALJ indicated that Smullen alleged neck pain beginning in December 2013, which was after her alleged onset date, that she claimed to use a cane but did not have a prescription, that Smullen did not complain of left heel spurring at the hearing, and that she used only over the counter analgesics. (Tr. 32). The ALJ stated that the above findings did not bolster Smullen's allegations of disabling limitations or her credibility. (Tr. 32).

         The ALJ then reviewed Smullen's medical records from Matthew 25 Clinic during 2011 and 2012. (Tr. 32). He indicated that the records did not show ongoing retinopathy, significant neuropathy, significant atrophy from crepitus, hip dysfunction, knee issues, diabetes mellitus, hypertension, or heel spurring, or an unstable thyroid function. (Tr. 32). Considering the medical examination summary and the Matthew 25 Clinic records, the ALJ found that the records did not support allegations with greater limitations than those reflected in the RFC. (Tr. 32). Dr. Bacchus found some limitations, but he did not find any atrophy. (Tr. 32). He noted that Smullen had a normal, steady gait, that she did not use an assistive device, that she could hear conversational speech, and that she did not have joint swelling or instability. (Tr. 32-33). Dr. Bacchus concluded that Smullen could perform light to moderate duties while standing three to four hours non-continuously, which the ALJ found supported his RFC finding. (Tr. 32-33).

         Smullen testified that her primary care physician, Dr. Teresa Tallon, prescribed medication that improved her mood swings. (Tr. 33). Despite testifying that she had mood swings for years, Smullen only recently sought medication. (Tr. 33). Smullen stated that she got along with other people and that Dr. Tallon did not suggest mental health counseling. (Tr. 33). The ALJ did not give significant weight to Dr. Tallon's conclusion that Smullen was disabled due to neck and back pain, diabetes, and diabetic neuropathy. (Tr. 33). Additionally, Dr. Tallon found that Smullen had limitations regarding her abilities to stoop, balance, perform fine finger tasks, and reach in any direction. (Tr. 33).

         The ALJ stated that the Matthew 25 Clinic medical records and Dr. Bacchus's examination notes did not support Dr. Tallon's findings. (Tr. 33). Additionally, he found that Dr. Tallon's notes did not show objective medical findings that supported her restrictions, such as atrophy, loss of reflexes, or decreased sensation. (Tr. 33). The ALJ also noted that diagnostic test results revealed mild, unremarkable results that did not support significant limitations. (Tr. 33-34). He explained that Smullen did not testify that she needed a cane, despite Dr. Tallon finding that she required a cane to walk most of the time. (Tr. 34). Furthermore, the ALJ indicated that Dr. Tallon did not explain how many hours Smullen could stand or work during an eight-hour work day, that she did not explain why Smullen's back issues prevented her from working even with medication, and that she did not show what medical ...

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