Smith v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The Court REMANDS the Commissioner's decision pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is instructed to term the case and enter judgment in favor of Smith. Signed by Magistrate Judge Michael G Gotsch, Sr on 9/13/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAY F. SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Defendant.

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CASE NO. 3:17-CV-00261-MGG

OPINION AND ORDER
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

On February 10, 2009, Smith filed her first applications for DIB and SSI alleging a disability onset date of
January 23, 2009. Smith’s first applications were denied by the ALJ on March 15, 2011, and by the Appeals
Council on March 14, 2012. Smith raises no issues with the resolution of her 2009 disability benefits
application. Therefore, the Court need not discuss it further here.

1

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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.

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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
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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 eighthour day, five days a week on a sustained basis. The ALJ granted little evidentiary
weight to this opinion and stated that the opinion was not supported by Dr. Abdo’s
longitudinal treatment history of Smith.
In August 2014, Smith returned to N.P. Grace, who also completed an RFC
analysis and determined that Smith could sit for one hour of an eight-hour workday,
and stand/walk for one hour of an eight-hour workday. N.P. Grace concluded that
Smith was not physically capable of working an eight-hour workday five days a week
on a sustained basis. The ALJ granted little evidentiary weight to this opinion, stating
that the past treatment records of N.P. Grace do not support this opinion.
In September 2014, Smith visited her neurologist Dr. Nasar Katariwala, M.D.
(“Dr. Katariwala”) and reported that she was still having seizures. Dr. Katariwala
recommended that Smith see a gastrointestinal specialist to determine if she had a
malabsorption problem, which might explain her sub-therapeutic levels of Dilantin. In
October 2014, after visiting the gastrointestinal specialist, Smith returned to Dr.
Katariwala who noted that the gastrointestinal evaluation had not revealed any
malabsorption problem despite Smith’s ongoing sub-therapeutic levels of Dilantin.
In October 2014, Smith’s roommate brought her to the emergency room because
she was having a seizure. Smith’s Dilantin levels were measured in the emergency
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room and were still sub-therapeutic. After the emergency room visit, Smith followed-up
with Dr. Katariwala who took Smith off Dilantin and prescribed Keppra. In November
2015, when Smith presented for a follow-up visit, Dr. Katariwala noted that Smith had
not followed through with increasing her Keppra dose “for unclear reason.” [DE 10 at
1464]. Nevertheless, Dr. Katariwala noted that Smith was very firm that she was taking
her medications faithfully, even if unexplainably below the full prescribed dosage. [Id.].
At that time, Smith complained that she was having two to five seizures a day, with
symptoms that included being confused and being unsure where she was.
C.

The ALJ’s Determination

After the hearing, the ALJ issued a written decision reflecting the following
findings based on the five-step disability evaluation prescribed by the SSA regulations.
See 20 C.F.R. §§ 404.1520; 416.920. 2 At Step One, the ALJ found Smith has not engaged
in substantial gainful activity since her alleged onset date of January 1, 2012. At Step
Two, the ALJ found that Smith’s seizure disorder, history of an acute right pulmonary
embolism, and obesity constituted severe impairments. At Step Three, the ALJ found
that none of Smith’s impairments or combination of impairments meets or medically
equals the severity of one of the listed impairments in 20 C.F.R Part 404, Subpart P,
Appendix 1. At Step Four, the ALJ determined that Smith has the residual functioning
capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) and that
she can lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk
Regulations governing applications for DIB and SSI are almost identical and are found at 20 C.F.R. Parts
404 and 416 respectively. For the sake of economy, this order will only refer to 20 C.F.R. Part 404 even
though both parts apply.

2

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about six hours; and occasionally climb ramps and stairs. The ALJ’s RFC determination
also required that Smith avoid moving mechanical parts and unprotected heights.
In making this Step Four determination, the ALJ found that Smith’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the ALJ found that Smith’s statements concerning the intensity,
persistence and limiting effects of these symptoms were not entirely credible. The ALJ
reasoned that Smith’s Dilantin levels were repeatedly sub-therapeutic, and when Dr.
Katariwala changed the medication to Keppra, Smith did not take the full dosage as
prescribed. The ALJ also cites Smith’s own testimony that she was independent in her
personal care activities and that she could get along with her roommates and enjoyed
socializing with them. Lastly, the ALJ cited essentially normal neurological
examinations. Based on these findings, the ALJ determined that Smith has the RFC to
perform light work with the restrictions outlined above.
Having defined Smith’s RFC, the ALJ then concluded that she is capable of
performing past relevant work as a Cashier II, which is unskilled work that does not
require the performance of work-related activities precluded by the claimant’s RFC.
Finding that Smith is able to perform that job as actually and generally performed, the
ALJ determined that Smith had not been disabled from January 1, 2012.
III.

ANALYSIS
A.

Standard of Review

On judicial review under the Social Security Act, the Court must accept the
Commissioner’s factual findings as conclusive if supported by substantial evidence.
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42 U.S.C. § 405(g). When an ALJ’s decision is the final action of the SSA, the reviewing
court examines the ALJ’s decision to determine whether substantial evidence supports
it and whether the ALJ applied the proper legal standard. See Briscoe v. Barnhart, 425
F.3d 345, 351 (7th Cir. 2005). Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971). Substantial evidence is “more than a scintilla but may be less
than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Therefore, the
court must affirm an ALJ’s decision denying benefits if reasonable minds could differ as
to whether a claimant is disabled in light of the all the evidence. Schmidt v. Astrue, 496
F.3d 833, 842 (7th Cir. 2007).
In his decision, the ALJ must build a logical bridge from the evidence to the
conclusion. Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). While a reviewing court
must consider the entire administrative record, it must not In addition, a reviewing
court is not to substitute its own opinion for that of the ALJ or re-weigh the evidence.
Id.; see also Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); Powers v. Apfel,
207 F.3d 431, 434–35 (7th Cir. 2000). In the end, however, an ALJ must minimally
express his analysis of the evidence in order to allow the reviewing court to trace the
path of his reasoning and to be certain that the ALJ considered the necessary evidence.
See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).
B.

Issues for Review

Smith contends that the ALJ’s RFC determination is not supported by substantial
evidence because the ALJ (1) did not include any limitations accounting for the mental
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effects of her seizures or other evidence indicating mental limitations; (2) improperly
discounted the opinions of her treating physicians, Dr. Abdo and N.P. Grace; and (3)
improperly discounted her own subjective complaints. An individual’s RFC represents
her maximum ability to work despite physical or mental limitations. 20 C.F.R.
§ 404.1545(a)(1). In making a proper RFC determination, the ALJ must consider all of
the relevant evidence in the case record, including evidence related to both severe and
non-severe impairments as well as the testimony of friends and family. 20 C.F.R.
§ 416.945(a)(1); see also Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009); Craft v.
Astrue, 539 F.3d 668, 676 (7th Cir. 2008).
1.

Mental Limitations

In challenging the mental limitations included in the ALJ’s RFC, Smith argues
that the ALJ failed to incorporate limitations accounting for symptoms she experiences
in relation to her weekly seizures. For instance, Smith contends that the ALJ’s RFC does
not address how her explosive outbursts during her seizures, which occur monthly
even when somewhat controlled by medication, and her tiredness after her seizures
would affect her capacity to work. Similarly, Smith argues that the ALJ did not
incorporate limitations resulting from her depression, an admittedly non-severe
impairment.
In support, Smith cites to Dr. Scully’s reports from her psychological consultative
examinations in September 2013 and March 2014. Smith directs the Court’s attention to
Dr. Scully’s notes that Smith reported that her angry outbursts interfered with
friendships and occurred more often when she was working or was around people.
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Further, Smith references Dr. Scully’s own concern about Smith’s memory because at
the March 2014 consultative examination, Smith did not remember seeing Dr. Scully at
the September 2013 consultative examination. Indeed, Dr. Scully opined that if Smith
were awarded disability benefits, she need help managing them because of these
memory issues.
Smith also points to the testimony of her roommate, Ms. Guinn, who stated that
Smith experiences seizures a few times daily, engages in strange behavior during them,
and does not remember them afterward. Plaintiff’s own testimony was also consistent
with Ms. Guinn’s report.
As the Commissioner indicates, the ALJ’s decision does include considerable
discussion of the evidence related to Smith’s seizure disorder and related symptoms. In
the Step Two severity analysis, the ALJ mentions Smith’s seizure disorder diagnoses,
reports Smith’s own testimony regarding her seizure-related symptoms, and references
assorted medical evidence about her seizure including test results showing subtherapeutic levels of her seizure medication. In the RFC analysis section of the decision,
the ALJ recites even more evidence related to Smith’s seizures including the opinions of
her medical providers, Dr. Abdo and N.P. Grace. The ALJ also cited notations from
doctors’ visits that Smith’s neurological exams were essentially normal. Therefore, the
ALJ clearly knew about and considered Smith’s seizure disorder and its effects on her
activities of daily living, her social functioning, her concentration, persistence, and pace,
as well as her RFC.

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With that said, the ALJ’s recitation and summary offer no rationale for how the
outbursts, tiredness, and memory issues were accounted for in the RFC. The ALJ
appears to rely on reports of normal neurological exams and an inference of intentional
noncompliance to support his conclusions about Smith’s RFC, but does not explain how
that fact and inference negate the other evidence regarding the impact of the regularity
of her seizures, and her angry outbursts, tiredness, and memory problems on her ability
to work. Without more of an explanation, the ALJ has not created the necessary logical
bridge between the evidence he clearly considered and the RFC that lacks any obvious
accommodation of Smith’s mental limitations arising from her seizures. See Haynes, 416
F.3d at 626. Without reweighing the evidence or reaching any conclusion about whether
the ALJ’s RFC is correct, the Court finds remand appropriate to address the missing
logical bridge. See id.; see also Powers, 207 F.3d at 434–35.
2.

Weight of the Medical Opinions

On appeal, Smith also argues that the ALJ improperly discounted the medical
opinions of treating physician Dr. Abdo and N.P. Grace. Under the treating physician
rule, an ALJ should give controlling weight to a treating source as long as it is
supported by medical findings and consistent with substantial evidence in the record.
20 C.F.R. § 404.1527(c)(2); Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018). 3
Generally, greater weight is given to the opinions of a treating source because that

“The treating-physican rule has been modified to eliminate the ‘controlling weight’ instruction for”
claims filed on or after March 27, 2017. Kaminski v. Berryhill, 894 F.3d 870, 874 n.1 (7th Cir. 2018).
However, the old rule still applies to Smith’s claim because it was filed before March 27, 2017. Id. (citing
20 C.F.R. §§ 404.1527, 404.1420c).
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source is more familiar with the claimant’s conditions and circumstances. Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
If an ALJ does not give a treating source’s opinion controlling weight, the ALJ
must consider several factors while determining what weight to give it, and must give
good reasons to explain why he gave it that weight. 20 C.F.R. § 404.1527(c). Specifically,
an ALJ choosing to discount a treating source’s opinion “must consider the length,
nature, and extent of the treatment relationship; frequency of examination; the
physician’s specialty; the types of tests performed; and the consistency and support for
the physician’s opinion.” Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). Similarly,
ALJs must consider evidence from all sources, including “other sources” such as nurse
practitioners. 20 C.F.R. § 404.1513(d); SSR 06-03p. Moreover, the same factors to be
considered when discounting the opinions of treating sources under 20 C.F.R.
§ 404.1527 must be applied when assessing the opinions of “other sources.” SSR 06-03p.
Here, the ALJ granted little evidentiary weight to the opinions of both Dr. Abdo
and N.P. Grace, reasoning that their opinions were not supported by their treatment
histories of Smith. Specifically, the ALJ discounted Dr. Abdo’s RFC opinion from
October 2013 because “[it] was not supported by Dr. Abdo’s longitudinal treatment
history.” [DE 10 at 31]. Yet the ALJ did not apply the Section 1527(c) factors to
determine the weight to be given to Dr. Abdo’s opinion.
In so doing, the ALJ has once again failed to create the necessary logical bridge to
support discounting Dr. Abdo’s opinion. The ALJ tries to explain the weight given to
Dr. Abdo’s opinion by noting generally its inconsistency with Dr. Abdo’s own records
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on Smith. However, the ALJ does not identify specific inconsistencies leaving Smith and
this Court unclear as to how the opinion is inconsistent. Or put another way, the ALJ
has not cited to evidence that supports with sufficient clarity his decision to discount
Dr. Abdo’s opinion about Smith’s RFC.
The ALJ’s decision to discount the opinion of N.P. Grace is similarly flawed. In
explaining his assessment of N.P. Grace’s opinion on Smith’s RFC, the ALJ conclusorily
stated that her opinion was “not supported by the treatment records of Ms. Grace.” [DE
10 at 32]. Without the necessary articulation of a rationale for discounting the opinions
of these two medical providers who treated Smith and her seizure disorder over time,
the ALJ’s RFC determination is not supported by substantial evidence and must be
remanded.
iii.

Subjective Complaints

Finally, Smith contends that the ALJ’s credibility determination is not supported
by substantial evidence. An ALJ must determine the extent to which a claimant’s
subjective symptoms are credible if he determines there is an underlying medically
determinable physical or mental impairment that could reasonably be expected to
produce the symptoms. SSR 96-7p; see also 20 C.F.R. § 404.1529(c)(3). 4 While a claimant
can establish the severity of his symptoms by his own testimony, an ALJ need not
accept the claimant’s subjective complaints to the extent they clash with other, objective
medical evidence in the record. Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007). A
SSR 96-7p was rescinded and superseded by SSR 16-3p in March 2016, about two months after the ALJ
issued the decision under review in this case. Therefore, the standards in SSR 96-7p will be applied in
considering Smith’s arguments about the ALJ’s credibility determination.
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court defers to the ALJ’s assessment of the claimant’s truthfulness and therefore will not
overturn an ALJ’s credibility determination unless it is patently wrong. Shideler v.
Astrue, 688 F.3d 306, 310–11 (7th Cir. 2012). An ALJ’s credibility determination will only
be considered patently wrong when it lacks any explanation or support. Elder v. Astrue,
529 F.3d 408, 413-14 (7th Cir. 2008).
Here, the ALJ’s credibility determination appears to be based on his inference
that Smith was noncompliant—presumably intentionally so—in taking her seizure
medication. Yet the ALJ only cites to evidence in the record that Smith’s Dilantin levels
were repeatedly sub-therapeutic, that on one occasion Smith inexplicably failed to
increase her dosage of the medication as prescribed, and Dr. Abdo’s and Dr.
Katariwala’s statements that her symptoms could return without medication. This
litany of evidence is not disputed, but does not on its own support a conclusion that
Smith’s symptoms would have been under control but for an unwillingness to take her
medications as directed. Moreover, the ALJ’s inference of noncompliance does not
account for the testimony of Smith’s roommate about helping with her medication
regimen and Smith’s own insistence that she was taking her medications faithfully.
Therefore, the support the ALJ provides for his credibility determination is
purely speculative and does not account for parts of the record he references in his own
decision. See Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (“an ALJ must adequately
explain his credibility finding by discussing specific reasons supported by the record”).
Accordingly, the ALJ’s credibility determination is patently wrong as written. See id.
The Court reaches no conclusion on whether the claimant’s subjective symptoms should
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have been discounted. Instead, the Court finds remand necessary to rectify the lack of
substantial evidence connecting the record to the ALJ’s credibility determination.
III.

CONCLUSION
Having failed to (1) account for evidence of mental limitations arising from

Smith’s seizures, (2) articulate reasons for discounting the opinions of Smith’s medical
providers, Dr. Abdo and N.P. Grace, and (3) explain why Smith’s credibility was
discounted, the ALJ’s opinion is not supported by substantial evidence. Therefore, this
Court REMANDS the Commissioner’s decision pursuant to sentence four of 42 U.S.C.
§ 405(g). The Clerk is instructed to term the case and enter judgment in favor of Smith.
SO ORDERED.
Dated this 13th day of September 2018.

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s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge