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Smothers v. Berryhill

United States District Court, W.D. Wisconsin

September 21, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Pursuant to 42 U.S.C. § 405(g), plaintiff Rocky Smothers seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, which found that he was not entitled to disability insurance benefits because he was not disabled before December 31, 2011, his date last insured. On January 13, 2017, the court heard oral argument to address principally plaintiff's contentions that the ALJ erred by: (1) failing to consider adequately plaintiff's obesity and resulting limitations in determining his residual functional capacity (“RFC”); and (2) giving great weight to the state agency physician's opinion regarding plaintiff's RFC without a sufficient explanation. Because the court is unable to determine from the ALJ's decision whether he or the state agency physician took into account sufficiently plaintiff's obesity and related limitations, remand is required.


         As discussed in more detail in the ALJ's written discussion and during the hearing, Smothers claims that he was disabled between his alleged onset date of August 17, 2011, and December 31, 2011, his date last insured, due to a number of impairments. Among these are obesity and ischemic heart disease, or reduced blood supply to the heart, both of which the ALJ found to be severe impairments in his written decision following a hearing at which Smothers and a vocational expert (“VE”) testified. (AR 26.)[1]Specifically, with respect to plaintiff's obesity, the ALJ cited a clinical note from December of 2012 measuring him with a height of 5'7” and weight of 230 pounds, resulting in a body mass index (BMI) of 36. (Id.) Along with other ailments including back and shoulder pain, plaintiff asserts that he is unable to work because his impairments cause him shortness of breath and limit his ability to walk, sit, stand, lift weight and do other activities required to maintain employment.

         As the ALJ noted in his decision, Smothers was hospitalized for an acute myocardial infarction on July 6, 2006, and underwent a successful emergency balloon coronary angioplasty and right coronary artery stenting. (AR 201.) At a follow-up appointment on July 25, 2006, Smothers reported feeling well, with no shortness of breath, and the ability to walk three miles in thirty minutes with no difficulty. (AR 287.) Smothers reported mild shortness of breath during exertion at work during a visit to the Veterans Administration (“VA”) in September 2007. (AR 255.)

         During a July 15, 2011, visit to the VA, Smothers complained of experiencing increased shortness of breath. (AR 275.) He stated during that visit that he typically walked three to four miles two or three times per week as exercise, but that he began feeling short of breath after walking one mile. (Id.) At a visit on August 17, 2011, Smothers underwent a “Bruce stress test, ” the results of which indicated reduced functional capacity. (AR 246-47.) Notes from that visit also include the following discussion:

Pt states that he had noticed the mild SOB [(shortness of breath)] ever since his PCI in 2006. Pt states that it got slightly worse in 2007 which re[s]ulted in cardiology office clinic visit. At that time cardiology did not feel his SOB was from his heart and he was D/C'd. Pt states that since then he has had some stability of his SOB with some med changes but it has gone worse in the last year where he can only walk approx 5-10 mins without getting SOB and markedly diaphoretic and needs to stop. Pt states this feeling is UNLIKE his prior episodes with angina. Pt states that he can do all of his ADL's to include climbing 1 flight of stairs without increase in cardiac symptoms.
Pt states as per above that his exercise tolerance has decreased over that last year, and that he can only walk approx. 5-10 minutes prior to getting SOB and diaphoretic. Pt states that a year ago he did have baseline SOB but that it did not bother him “near as much.” Pt denies other cardiac symptoms with this level of exertion.

(AR 248 (emphasis added).)

         Medical notes for a follow-up visit on September 29, 2011, reflect heart function “in the normal range” and continued complaints about shortness of breath, for which was recommended “continue to workup for other reasons.” (AR 243.) Notes dated October 20, 2011, indicate that Smothers was “encouraged . . . to lose weight back down to 180 as this might help with his SOB.” (AR 274.)

         The most recent medical notes that the ALJ mentioned in his decision were from a visit on December 8, 2011. Those notes indicate that Smothers reported having the ability to walk approximately ten minutes before getting shortness of breath that required him to rest. (AR 239.) As the ALJ pointed out, the notes also include Smothers's report that he could still do all of his daily activities, including climbing at least one flight of stairs, without “cardiac symptoms.” (Id.) Given his continued shortness of breath and the lack of cardiac causes for his symptoms, Smothers was recommended to undergo a sleep study to determine whether sleep apnea could be the cause. (AR 242.)

         In his written decision, the ALJ summarized Smothers's testimony at the hearing. Specifically, the ALJ noted that Smothers asserted that he struggled to breathe in hot or extremely cold weather, which began in late 2010 or early 2011. (AR 63.) The ALJ's written decision also made note of some of the household tasks about which Smothers testified, including doing laundry in his basement, as well as his ability to: (1) lift certain weight; (2) stand or sit for certain periods of time; and (3) walk a mile and a half, although the ALJ did not point out that Smothers suggested that he usually stopped three or four times while walking that distance. (AR 29, 71.)

         The ALJ found that Smothers had the RFC to perform light work, except that he “was precluded from any climbing of ladders, ropes or scaffolds, and can only occasionally climb ramps and stairs” and also “must avoid concentrated exposure to extreme cold, heat, wetness and humidity.” (AR 27.) In support of that RFC determination, the ALJ emphasized that medical testing had identified no cause of Smothers's shortness of breath and also that “no treating or examining source has attested to any specific work related limitations.” (AR 30-31.) The ALJ further explained that he gave “great weight to the opinion of state agency medical consultant Dr. Pat Chan in finding that the claimant is capable of light exertion, as there is no contrary opinion of any greater limitation.” (AR 30.) The ALJ stated without further explanation, however, that he found “additional environmental and postural limitations are warranted” after “[t]aking into consideration the claimant's subjective complaints, as well as the objective medical ...

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