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Smith v. Berryhill

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

February 26, 2018

NANCY A. BERRYHILL, Commissioner, Social Security Administration DEFENDANT


         Plaintiff Miler Smith (“Smith”) appeals the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny his claim for Supplemental Security Income (“SSI”). Smith contends the Administrative Law Judge (“ALJ”) erred in: (1) failing to find him disabled pursuant to Rule 201.14 of Table I, Subpart P, App. 2Regulation #4 (“Rule 201.14"); (2) assessing his credibility; (3) relying upon an inadequate hypothetical question posed to the vocational expert; (4) failing to apply the “treating physician's” rule; (5) failing to fully develop the record; and (6) failing to consider his impairments in combination. The parties ably summarized the medical records and the testimony given at the administrative hearing, which was conducted on July 16, 2015. The Court has carefully reviewed the record to determine whether there is substantial evidence to support Berryhill's decision. 42 U.S.C. § 405(g). The relevant period to be considered is from September 12, 2013, when Smith filed his application, through October 1, 2015, the date the Commissioner issued his decision.

         The Administrative Hearing: Smith was 49 years old at the time of the administrative hearing. He testified he was a high school graduate, with additional schooling which certified him as a welder, and does not have a driver's license. He served in the military from 1985 to 1987 and receives medical care at the Veteran's Administration Hospital (“VA”). He stated he last worked in 2008 due to chronic pain. His pain, according to Smith, was most severe in his back, but also present in his neck and shoulder. He stated he had “pain all the time, right around my neck, shoulders, back, down to the bottom of my feet, ” and has occasional spasms in his lower back. (Tr. 430). Smith rated the pain as 8 on a 1-10 scale. Smith noted he had a motor vehicle accident in 2008, [1] broke his left ankle in 2012, and broke his right ankle in 2015. At the time of the hearing, Smith said a back fusion surgery was imminent. Smith indicated he dealt with the pain via steroid shots, having received between 300 and 400 of such shots. He also stated he used a cane when he left his house, and has done physical therapy for his right ankle and back. Smith testified he also suffered from PTSD, bipolar disorder, stomach problems, high blood pressure, shortness of breath, and sleep problems.

         Smith acknowledged past problems with drugs and alcohol, and stated he was “clean” from drugs for the past six years. (Tr. 407). Smith, although currently in substance abuse treatment for alcohol, conceded he “occasionally takes a drink.” (Tr. 408). He estimated he drank alcohol maybe twice a week, and drank the night before the administrative hearing. The alcohol treatment classes were weekly meetings, and Smith also testified to attending parenting classes to aid in dealing with his daughter, who was thirteen.

         Some confusion surrounded Smith's testimony about attending Pulaski Technical College in 2014. Smith twice indicated he attended the school for a month in January of 2014, then conceded that the records might show he attended “around about” a full semester. (Tr. 423).

         A vocational expert, Charles Dwight Turner (“Turner”), testified Smith could not perform his past relevant work. Smith's counsel asked Turner to assume a hypothetical worker of Smith's age and background, with the ability to do sedentary work, use a cane, and experiencing pain and discomfort which would impact his ability to be reliable and dependable for at least one third of the working time. Turner identified no available jobs for such a worker. The ALJ then posed a hypothetical question, asking Turner to assume a hypothetical worker of Smith's age and background, with the ability to do light work with the following restrictions: occasional postural limitations on stooping, crouching, bending, kneeling, crawling, and balancing; no working from ropes, ladders, and scaffolding; limited to work which is simple, routine, and repetitive; and limited to work where supervision is simple, direct, and concrete. Turner indicated such a worker could perform the jobs of shotgun shell inspector and sales attendant. A second hypothetical question was posed by the ALJ, assuming the same parameters except that the hypothetical worker could maintain frequent contact with coworkers and supervisors, and occasional contact with the public. Turner indicated that the shotgun shell inspector job would still be available to the worker as described in the second hypothetical scenario. In addition, the jobs of machine tending and bench press operator would be available. The ALJ altered the hypothetical terms again, asking the ALJ to consider a worker with the same restrictions but able to perform sedentary, rather than light, work. According to Turner, such a worker could perform the jobs of fishing reel assembler and table worker. (Tr. 448-456).

         The ALJ's Decision:

         In his October 1, 2015, decision, the ALJ found Smith had severe impairments of depression disorder, personality disorder, substance abuse disorder, obesity, and degenerative joint disease of his shoulder and hip. The ALJ held that Smith did not meet a listed impairment. In conjunction with the analysis regarding a listing, the ALJ considered the “paragraph B” criteria and found the following: Smith had mild limitations in activities of daily living, moderate limitations in social functioning, moderate difficulties with regard to concentration, persistence or pace, and no episodes of decompensation. The ALJ determined Smith had the residual functional capacity (“RFC”) to perform sedentary work with the following restrictions; no more than occasional stooping, crouching, bending, kneeling, crawling, and balancing; never climbing ladders, ropes, or scaffolds; no more than simple, routine and repetitive tasks with supervision that is simple, direct, and concrete; no more than frequent contact with supervisors and coworkers; and no more than occasional contact with the general public.

         The ALJ found Smith “not entirely credible, ” citing many of the relevant factors he assessed in coming to this conclusion. (Tr. 376). For example, the ALJ noted Smith's work history was not strong, his attendance at Pulaski Technical College was at odds with his “profound subjective allegations, ” his statements regarding alcohol usage were inconsistent, his own doctors found him to be deceptive and malingering, his estimation of the number of steroid injections was “significantly overstated, ” and his mental health professionals also noted malingering and exaggerating.

         The ALJ also thoroughly reviewed the medical findings by both treating and consulting examiners, as well as the findings of the state agency physicians. The ALJ specifically addressed the opinion of Dr. Oboma Asemota (“Asemota”), who found Smith had a “moderate disability.” (Tr. 380). The ALJ accorded “little weight” to Asemota, finding the opinion mirrored Smith's subjective allegations, was based upon mixed clinical findings, and did not contain a clear function by function assessment of Smith's abilities. (Tr. 380). The ALJ also assigned only “partial weight” to the opinions of the state agency physicians, who opined Smith could perform the full range of light work. (Tr. 379). Relying upon the testimony of Turner, the ALJ concluded Smith was not disabled. (Tr. 369-384).

         We now address Smith's arguments.

         ALJ Error in Failing to Find Him Disabled Pursuant to Rule 201.14:

         Born on June 17, 1966, Smith was eleven months shy of turning 50 when his administrative hearing was held on July 16, 2015. Smith contends that if he were 50, with a high school education and no transferable work skills, and had an RFC of sedentary, then Rule 201.14 would direct a finding of disability. Smith further argues, citing 20 C.F.R. § 404.963(b), that age categories are not to be applied mechanically in borderline situations. Therefore, he urges that Rule 201.14 directs a finding of disability for him.

         While Smith is correct in stating that age categories should not be mechanically applied in borderline situations, he is incorrect in claiming that he fits within the borderline category. First, the relevant regulation, found at 20 C.F.R. § 404.1563(b), provides that mechanical application of the age category will not apply if a claimant is “within a few days to a few months of reaching an older age category.” Smith does not fit within this exception - he is not a borderline case. This conclusion is reinforced by the Eighth Circuit Court of Appeals:

Second, Byes's age was not borderline. When the ALJ issued the decision, Byes was almost eight months away from his 45th birthday. Because the borderline rule takes into account several factors besides age, there is no bright line for how many months constitute a borderline case. Phillips v. Astrue,671 F.3d 699, 703-04 (8th Cir.2012). However, eight months is too distant to be borderline. See Bowie, 539 F.3d at 397 (claimant less than two months from birthday is not borderline); Lockwood, 616 F.3d at 1072-74 (claimant only one month and three days from birthday is not borderline); Van Der Maas v. Commissioner of Social Sec., 198 Fed.Appx. 521, 528 (6th Cir.2006) (taking into account all factors surrounding claimant's application, 55 days is not borderline); Roberts v. Barnhart, 139 Fed.Appx. 418, 420 (3d Cir.2005) (persons within five to six months of their birthday are not borderline); Lambert v. Chater,9 ...

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