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Smith v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

September 13, 2018

KAY F. SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          OPINION AND ORDER

          MICHAEL G. GOTSCH, SR. UNITED STATES MAGISTRATE JUDGE

         On 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. § 405(g).

         I. Procedure

         On 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.[1]

         The 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.

         II. Relevant Background

         Smith 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 station.

         A. Plaintiff's Testimony

         At the 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.

         B. Medical Evidence

         The 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.

         In May 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 results.

         In July 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.

         As part 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.

         That 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.

         In 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 ...


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