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Smith v. Saul

United States District Court, E.D. Wisconsin

September 26, 2019

MELODY LOVE SMITH, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          DECISION AND ORDER AFFIRMING COMMISSIONER'S DECISION

          WILLIAM C. GRIESBACH, CHIEF JUDGE.

         Plaintiff Melody Smith filed this action for judicial review of a decision by the Commissioner of Social Security denying her application for disability insurance benefits and a period of disability as well as supplemental security income (SSI) under Titles II and XVI of the Social Security Act. Smith contends that the administrative law judge's (ALJ) decision is flawed and requires remand for two reasons: (1) the ALJ erred by failing to give treating physician Dr. John Cotter's opinion controlling weight, and (2) the ALJ failed to adequately consider the impact of Smith's obesity on her ability to work. For the reasons that follow, the Commissioner's decision will be affirmed.

         BACKGROUND

         In July of 2014, Smith filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for SSI. R. 13. Smith listed epilepsy, migraines, osteoarthritis, torn cartilage, trigeminal neuralgia, depression, PTSD, and anxiety as the conditions that limited her ability to work. R. 337. After her application was denied initially and on reconsideration, Smith requested a hearing before an ALJ. On June 23, 2017, ALJ Deborah M. Giesen conducted a video hearing where Smith, who was represented by counsel, and a vocational expert (VE) testified. R. 37-87.

         Smith, who is 5'7", was 43 years old and weighed 275 pounds at the time of the hearing. R. 41, 49. She has two associate degrees from a technical college, one in business management and one in marketing, and lives with her boyfriend and 11-year-old son. R. 41, 49. Although Smith testified to working various jobs, the only job the ALJ found relevant from Smith's prior work history was her position stocking items at Walmart. R. 46. At the time, Smith's only source of income was from her participation in a work program. R. 48.

         Smith testified that she has bilateral carpal tunnel in both hands, and that she previously had surgery on her left hand and was slated to have surgery on her right. R. 53-54, 62. Smith stated she cannot fully make a fist with her left hand; feels shocks of pain in it; and has difficulty gripping items, opening jar lids, and tying her shoes because of the lack of sensation in her left hand. R. 62. Smith reported that she was in physical therapy to regain mobility in her left hand, but that she still experiences hand pain. R. 53-54. Smith also stated that she has similar limitations with her right hand in that she drops items and is not capable of fine fingering, but is capable of buttoning a shirt and can pinch items with some of her fingers. R. 63-64.

         Smith further testified that she had surgery in August of 2016 to remove a synovial cyst in the facet joint on her L5 vertebrae that was compressing her sciatic nerve but still experiences sciatic radiating pain from her hip down to her knee due to permanent nerve damage. R. 69. Smith stated that this pain limits her ability to walk, sit down, and lay down for extended periods of time. R. 70. In addition, Smith reported having difficulty sleeping due to the pain and her PTSD, and that she was generally waking up five to six times a night. Id.

         Smith testified that she has difficulties raising her arms above shoulder level and that attempts to do so result in neck, shoulder, and upper back pain. R. 66. Smith also testified about the effects of her obesity, stating that she has difficulties standing for more than ten minutes, that it causes pain in her lower spine, and that she is unable to bend or stoop. R. 65. She stated that her limited mobility makes it difficult for her to enter and exit the SUV that she drives. R. 75.

         Smith stated that she suffers from migraines and that, if they are not treated with medication, they can last 15 to 16 hours. R. 67. When she is suffering from a migraine, Smith said she turns off all of the lights, avoids noises, and remains as still as possible. Id. Smith also testified that she suffers from incontinence and constant constipation and that, as a result, she ends up soiling herself five to six times a day and wears bladder pads. R. 70. Smith further testified that she is seen by a counselor every two weeks and that she suffers from anxiety attacks on a daily basis that render her incapable of doing anything. R. 57, 72.

         In addition to the conditions listed in her application, Smith testified that she suffers from severe overactive bladder syndrome, sciatica and nerve damage in her right and left legs, bilateral trigeminal neuralgia, degenerative disc disease, arthritis in both hips, bilateral carpal tunnel, ulnar nerve neuropathy, ganglion cysts in left hand, leg pain due to nerve damage, generalized anxiety disorder, major depressive disorder, PTSD, sleeplessness, memory loss, hyper vigilance, adjustment disorder with anxious mood, adjustment disorder with mixed emotional features, chronic pain, and chronic pain syndrome. Her kneecap is misaligned, and her right leg is an inch and a half shorter than her left. R. 60. Smith also reported difficulties balancing. R. 71.

         Smith testified that she has a driver's license and reported that she avoids driving alone during the day and usually rides with a passenger because she often falls asleep at the wheel but does not have the same problem driving alone at night. R. 53. She has no restrictions on her driver's license due to epilepsy or narcolepsy. R. 52. Regarding self-care, Smith testified that she is able to brush her teeth, but has difficulties showering, bathing, and taking care of herself in the bathroom due to her limited mobility. R. 72, 75-76. Smith stated that she had difficulties caring for her youngest son because she could not pick him up and received assistance from the child's father and other family members to help care for him. R. 76-78. Smith also testified that she is unable to contribute much to housework because of the limitations with her hands. R. 73.

         Smith stated that she smokes half a pack to a pack of cigarettes daily and that her attempts to quit were unsuccessful due to adverse reactions to various treatments. R. 50-51. Smith testified that she very rarely drinks and only used illegal drugs during a one-month stay in Colorado in March of 2014 where she smoked marijuana to relieve nerve pain. R. 55. Smith stated she has been prescribed Tegretol for seizures and two medicines, Ketorolac and Toradol, for her migraines. R. 51, 55, 58. As a side effect of the various medications that she takes, Smith testified that she suffers from memory loss and has difficulties remembering what medications she has taken during the course of the day and has lapses when she is driving where she forgets where she is going. R. 68.

         In a sixteen-page decision dated July 12, 2017, the ALJ determined that Smith is not disabled. R. 13-28. The ALJ's decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 14-15. At step one, the ALJ concluded that Smith has not engaged in substantial gainful activity since her March 28, 2018 alleged onset date and that she met the insured status requirements through December 31, 2014. R. 16. At step two, the ALJ concluded that Smith has the following severe impairments: status post resection of lumbar synovial facet cyst, degenerative disc disease of cervical spine, degenerative joint disease of right hip with labral tear, obesity, migraine headaches, degenerative joint disease of knees, carpal tunnel syndrome, ulnar neuropathy, depression/adjustment disorder with anxiety, and chronic pain syndrome. Id.

         As for her claim that she suffered from epilepsy, the ALJ noted that while epilepsy appears in the past medical history of some of the records, Smith had not undergone any treatment for it during the period at issue and had not had any seizures since she was a child. Because there were no medical records that substantiated the condition, the ALJ found it was not a medically determinable impairment. R. 16. The ALJ also found her reported chronic history of episodic urinary incontinence could be accommodated with adult undergarments. R. 17. Plaintiff's claim of PTSD was found to be, like her epilepsy, not a medically determinable impairment, and neither her ...


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