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Smullin v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

June 11, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT


         Plaintiff Diannia Mechell Smullin (“Smullin”), in her appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny her claim for Supplemental Security Income benefits (SSI), contends the Administrative Law Judge's (ALJ) decision that she is not disabled is not supported by substantial evidence. Specifically, Smullin faults the ALJ for failing to consider the combined effects of her impairments, for mischaracterizing her medical care as “conservative, ” and for erroneously analyzing her mental impairments. The parties have ably summarized the medical records and the testimony given at the administrative hearings conducted on May 24, 2013 and December 16, 2015. (Tr. 26-47, 325-336). Two hearings were in order because this Court remanded the case for further proceedings. (Tr. 367-373). The instructions on remand were specific - the Court directed the ALJ to determine if Smullin's sleep apnea was disabling, and instructed that the ALJ should not discount the severity of the sleep apnea solely because Smullin does not treat the apnea with a C-Pap machine, which she could not afford. The Court has carefully reviewed the record to determine whether there is substantial evidence in the administrative record to support Berryhill's decision. 42 U.S.C. § 405(g). The relevant period for purposes of this action is from November 4, 2011, the application date, through March 9, 2016, the date of the ALJ's decision.

         Administrative Hearing

         At the second administrative hearing, Smullin stated she was 44 years old, had the equivalent of a high school grade education, lives with her husband, and has past relevant work as a housekeeping cleaner. When asked why she was unable to work, Smullin stated “I have a lot of pain in my joints and back; take a lot of medications and stay tired a lot. That's about it.” (Tr. 326). She estimated she could walk for 30 minutes and could lift 8-10 pounds. A normal day, according to Smullin, involved sitting, watching television, and reading. She stated she did the dishes and vacuumed the house. Smullin testified to seeing a therapist weekly, and to taking Ambien, Amitryptiline, Ranitidine, Pravastatin, Latuda, Trazadone, Flexeril, and Tramadol. She indicated she remained unable to afford a C-pap machine, consistent with her testimony in the earlier hearing. Smullin said she was often tired, and took two naps on some days. She also described being diagnosed with lupus, which contributed to her fatigue. (Tr. 326-333).

         Carla Brown “(Brown”), a vocational expert, testified. The ALJ asked Brown to assume a hypothetical worker of Smullin's age, education, and experience, who could perform light work with numerous restrictions.[1] Brown indicated such a worker could not perform Smullin's past work, but could perform jobs in the national economy, such as the jobs of routing clerk or mail clerk. If the hypothetical question was altered to include a worker who was off task and had to be redirected every 60 to 90 minutes, Brown testified no jobs would be available. (Tr. 333-335).

         ALJ's Decision

         In his March 2016 decision following the second administrative hearing, the ALJ determined Smullin had the severe impairments of lupus, COPD, asthma, obstructive sleep apnea, GERD, hypertension, lumbago, bipolar I disorder, panic disorder, and obesity. The ALJ considered the criteria of “paragraph B, ” finding Smullin to have mild limitations of daily living, moderate limitations in social functioning, mild limitations regarding concentration, persistence, and pace, and no episodes of decompensation. The ALJ assessed Smullin with the residual functional capacity (“RFC”) to perform light work with the limitations which mirrored those specified in the first hypothetical question posed to Brown, and which are listed in footnote one herein. In reaching his RFC conclusion, the ALJ found Smullin's testimony was “not entirely credible, ” citing the objective medical evidence, conservative treatment, improvement with treatment, failure to follow treatment (e.g., continuing to smoke), and Smullin's daily activities. The ALJ considered various GAF ratings assigned to Smullin during the course of her treatment. Relying upon the testimony of Brown, the ALJ found Smullin was not disabled since she could perform the jobs of routing clerk and mailroom clerk.

         ALJ's failure to consider the combined effects of Smullin's impairments.

         Smullin argues there is no indication the ALJ considered the combined effects of her impairments, and that the ALJ “seemed to have forgotten that both Congress and this circuit” require a consideration of the combined effect of a claimant's impairments rather than an assessment of the impairments in isolation. Docket entry no. 15, page 22. There is no merit in this argument. The ALJ wrote that the issue in the case was whether Smullin was disabled, which he defined as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments . . .” (Tr. 346) (emphasis added). Thus, the ALJ's finding that Smullin was not disabled was, by definition, a finding that the combined impairments did not render her unable to engage in substantial gainful activity.

         ALJ error in assessing the medical care as “conservative.”

         Smullin contends the “ALJ falsely stated that conservative treatment precludes disability and that affected the outcome of his decision.” Docket entry no. 15, page 23. The ALJ's comments on the nature of treatment received by Smullin were part of the RFC assessment. After detailing Smullin's treatment for GERD, hypertension, asthma, irritable bowel syndrome, chest pain, sleep apnea, COPD, chronic pain, and mental impairments, the ALJ wrote:

Overall, the claimant has only had conservative treatment. By conservative means, the claimant has been prescribed medication, followed up with routine appointments, and received injections to help manage her conditions. The record does not reflect that the claimant's conditions ha[ve] required her to have any hospitalization, surgeries or other aggressive treatment methods in order to manage her conditions, rendering all the treatment to be conservative. However, conservative treatment is inconsistent with allegations of disability.

(Tr. 353). In addition to citing the conservative nature of treatment, the ALJ also observed Smullin's back pain, asthma, and mental impairments improved with treatment, and that she failed to follow prescribed treatment with regard to her asthma and COPD. These factors, along with the objective medical evidence and her daily activities, contributed as a group to the credibility assessment and the RFC determination. In other words, the RFC determination did not hinge solely upon the ALJ's characterization of treatment as conservative.

         Citing cases from the Ninth Circuit Court of Appeals, Smullin urges that conservative treatment would involve over-the-counter medications or a physician's failure to prescribe serious treatment for excruciating pain. See Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007) and Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999). Smullin does not counter the ALJ's finding that she did not require hospitalization or surgery. Thus, the parties quarrel over what constitutes conservative treatment. We are inclined to agree with the ALJ's view on the nature of the treatment. However, mindful that the nature of the treatment was one of several pertinent factors, we find that even if we were to presume the treatment was aggressive rather than conservative, the ALJ's overall analysis which resulted in the RFC finding was supported by substantial evidence.

         ALJ erroneously analyzed her ...

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