United States District Court, N.D. Indiana, Fort Wayne Division
TINA L. SMULLEN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
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. For the following
reasons, the decision of the Commissioner is AFFIRMED.
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).
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).
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).
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).
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
(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.
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).
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).
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).
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).
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).
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).
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