United States District Court, N.D. Indiana, South Bend Division
KAY F. SMITH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
OPINION AND ORDER
MICHAEL G. GOTSCH, SR. UNITED STATES MAGISTRATE JUDGE
April 3, 2017, Plaintiff Kay F. Smith (“Smith”)
filed a complaint in this Court seeking reversal of the
Social Security Commissioner's final decision to deny her
application for disability benefits. Smith filed her opening
brief on this matter on August 22, 2017. On October 31, 2017,
the Commissioner of Social Security
(“Commissioner”) filed a response asking the
Court to affirm the decision denying benefits. This matter
became ripe on November 14, 2017, when Smith filed her reply
brief. This Court may enter a ruling in this matter based on
the parties consent, 28 U.S.C. § 636(c), and 42 U.S.C.
October 14, 2013, Smith filed both an application for Title
II disability insurance benefits (“DIB”) and
Title XVI supplemental security income (“SSI”).
In both applications, Smith alleged disability beginning
January 1, 2012. The Social Security Administration
(“SSA”) initially denied these claims on January
13, 2014, and upon reconsideration on March 24, 2014.
Thereafter, Smith filed a written request for hearing on
April 15, 2015. Smith appeared and testified at a hearing
before an administrative law judge (“ALJ”) held
on December 10, 2015. An impartial vocational expert
(“VE”), and Smith's roommate, Theresa Guinn,
testified at the hearing. After the hearing, the ALJ issued a
written decision on January 6, 2016, denying Smith's
application reasoning that she could perform past relevant
work and therefore was not disabled.
Appeals Council denied Smith's request for review on
February 2, 2017, making the ALJ's decision the final
decision of the Commissioner. See Schomas v. Colvin,
732 F.3d 702, 707 (7th Cir. 2013). Smith then sought judicial
review of the Commissioner's final decision pursuant to
42 U.S.C. § 405(g) by filing her complaint in this Court
on April 3, 2017.
was born on November 26, 1963, and was 48 years old on the
alleged disability onset date. She has a 12th grade education
and has engaged in past relevant work as a cashier at a gas
ALJ hearing, Smith confirmed her symptoms, past work history,
and activities of daily living. She testified that she had a
pacemaker implanted in 2012 and that she has seizures and
problems with her back. She reported that her seizures happen
a few times every day during which she blacks out and then
cannot remember what happened. Smith explained that she still
has seizures even though she has been on medication, and that
she cannot work because of her seizures. Smith also testified
that she contributes to household chores and socially engages
with neighbors and her roommate. Smith further indicated that
she could walk unassisted throughout the grocery store and
carry her groceries home by herself.
record before this Court documents Smith's visits to
various medical specialists from May 2012 to November 2015.
The Court only references here the medical evidence related
to Smith's mental impairments that are relevant to the
issues raised in this case.
2012, an EEG of Smith's brain revealed a seizure focus in
the right anterior and mid temporal region and documented a
seizure. A follow-up EEG in August 2012, revealed similar
results. In October 2012, during a follow-up with her primary
care provider, Susan Grace, N.P., (“N.P. Grace”),
Smith had an essentially normal physical examination and was
reportedly taking Dilantin to control her seizures. Smith
returned to N.P. Grace in May 2013 and reported that she was
having seizure activity during which she would do things that
she did not remember later. N.P. Grace tested Smith's
Dilantin levels and found that her levels were below the
range at which the medication would be therapeutic. A
subsequent Dilantin level test in June 2013 revealed the same
2013, a friend took Smith to the emergency room after Smith
displayed sudden unresponsiveness, staring, and moving her
arms around aimlessly. Smith was diagnosed with a mood
disorder due to her seizures, with her outbursts most likely
corresponding to her seizure episodes.
of the application process for disability benefits, Smith
underwent a psychological consultative examination conducted
by Joyce Scully, Psy.D. in September 2013. Discussing her
health with Scully, Smith denied ever being admitted to a
psychiatric hospital and ever receiving outpatient mental
health treatment. She also denied having hallucinations,
delusions, or suicidal or homicidal thoughts. During the
mental status examination, Smith remembered two of three
recent Presidents, recited six digits forward and three
digits backwards, correctly recited the alphabet, and
effectively counted backwards from 20 in 15 seconds. Dr.
Scully diagnosed Smith with intermittent explosive disorder
based upon weekly outbursts, one of which had occurred in
Smith's doctor's office. Dr. Scully also assigned
Smith a global assessment of functioning (“GAF”)
score of 60, which is reflective of someone with moderate
difficulty in social, occupational, or school functioning.
same month, N.P. Grace diagnosed Smith with a seizure
disorder and advised her to continue taking her medications,
eat healthy, and stay active. At the visit, N.P. Grace tested
Smith's Dilantin level and found that it was still below
the range at which the medication would be effective.
October 2013, Smith visited her primary care physician, Dr.
Nabil Abdo, M.D. (“Dr. Abdo”), who works in the
same office as N.P. Grace. Dr. Abdo completed a residual
functional capacity (“RFC”) determination of
Smith and similarly diagnosed her with a seizure disorder. He
opined that if Smith was not taking her medications, the
symptoms could frequently interfere with attention and
concentration required for simple work-related tasks. Dr.
Abdo also opined that Smith could not work an eight-hour day,
five days a week on a sustained basis. The ALJ ...