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Smith v. Berryhill

United States District Court, W.D. Virginia, Abingdon Division

July 18, 2018

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



         I. Background and Standard of Review

         Plaintiff, Lorie Ann Smith, (“Smith”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that she was not eligible for disability insurance benefits, (“DIB”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011 & Supp. 2018). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned magistrate judge upon transfer pursuant to the consent of the parties under 28 U.S.C. § 636(c)(1).

         The court's review in this case is limited to determining if the factual findings of the Commissioner are supported by substantial evidence and were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.'”” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

         The record shows that Smith filed an application for DIB on June 24, 2013, alleging disability as of May 22, 2013, based on back problems; anxiety; chronic obstructive pulmonary disease, (“COPD”); and osteoporosis in both knees. (Record, (“R.”), at 189-90, 207.) The claim was denied initially and upon reconsideration. (R. at 98-100, 104-06, 110-12, 114-16.) Smith then requested a hearing before an administrative law judge, (“ALJ”). (R. at 117.) Hearings were held on October 30, 2015, and April 11, 2016, at which Smith was represented by counsel. (R. at 42-70.)

         By decision dated April 27, 2016, the ALJ denied Smith's claim. (R. at 23-35.) The ALJ found that Smith meets the nondisability insured status requirements of the Act for DIB purposes through December 31, 2018. (R. at 25.) The ALJ also found that Smith had not engaged in substantial gainful activity since May 22, 2013, the alleged onset date. (R. at 25.) The ALJ found that the medical evidence established that Smith suffered from severe impairments, namely COPD; osteoarthritis of the knees; degeneration of the lumbar spine; and obesity, but he found that Smith did not have an impairment or combination of impairments listed at or medically equal to one listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 25, 31.) The ALJ found that Smith had the residual functional capacity to perform light work[1] except that she was able to stand and/or walk for only four hours; sit for six hours; occasionally climb ramps and stairs; never climb ropes, ladders or scaffolds; and never work around moderate exposure to hazards, vibration, fumes, other respiratory irritants or extreme cold. (R. at 31.) The ALJ found that Smith was unable to perform her past relevant work. (R. at 34.) Based on Smith's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ also found that jobs existed in significant numbers in the national economy that Smith could perform, including jobs as an entry-level office helper, a cashier in a small shop and a mail sorter. (R. at 34-35.) Thus, the ALJ found that Smith was not under a disability as defined under the Act, and was not eligible for benefits. (R. at 35.) See 20 C.F.R. § 404.1520(g) (2017).

         After the ALJ issued his decision, Smith pursued her administrative appeals, (R. at 17-19), but the Appeals Council denied her request for review. (R. at 1-6.) Smith then filed this action seeking review of the ALJ's unfavorable decision, which now stands as the Commissioner's final decision. See 20 C.F.R. § 404.981 (2017). The case is before this court on the Commissioner's motion for summary judgment filed January 16, 2018.[2]

         II. Facts

         Smith was born in 1963, (R. at 189), which, at the time of the ALJ's decision, classified her as a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d). She has an eleventh-grade education and past relevant work experience as a school bus driver, a cashier and a sales clerk. (R. at 52, 55, 208-09.) Smith testified at her hearing that she was prescribed oxygen, which she used day and night.[3] (R. at 46.) She stated that, in addition to using oxygen, she used a breathing treatment machine and two inhalers. (R. at 47.) Smith stated that she used a rescue inhaler two to three times a day. (R. at 47.) She stated that she had never been a smoker, but had smoked only a couple of cigarettes.[4] (R. at 48.) Smith stated that the last time she smoked a cigarette was in 2014. (R. at 49.) She stated that she got along well with people, including supervisors. (R. at 52.)

         Cathy Sanders, a vocational expert, also was present and testified at Smith's hearing. (R. at 55-58, 284-85.) She was asked to consider a hypothetical individual of Smith's age, education and work history, who had the residual functional capacity to perform light work; who could stand and/or walk up to four hours in an eight-hour workday and sit up to six hours in an eight-hour workday; who could occasionally climb ramps and stairs; who could not climb ropes, ladders or scaffolds or work around moderate exposure to hazards, vibrations, fumes and other respiratory irritants; and who could not work around concentrated exposure to extreme heat and cold. (R. at 56.) Sanders stated that such an individual could perform jobs that existed in significant numbers in the national economy, including jobs as an entry-level office helper, a cashier in a small shop and a mail sorter. (R. at 56.) Sanders further testified that the same hypothetical individual, but who was limited to sedentary[5] work, could perform jobs that existed in significant numbers in the national economy, including jobs as an entry-level office helper, a charge account clerk and a surveillance monitor. (R. at 57.) Sanders stated that the jobs previously identified would be eliminated should the individual require a sit/stand option every 15 minutes. (R. at 58.) She stated that a person's need to have an oxygen tank with them at all time during the workday would be a medical accommodation that would have to be agreed upon according to the Americans with Disabilities Act. (R. at 58.) Sanders stated that an individual would be unable to retain a job should she be off task 11 percent or more of the workday. (R. at 58.)

         In rendering his decision, the ALJ reviewed medical records from David Deaver, Ph.D., a state agency psychologist; Dr. Lewis Singer, M.D., a state agency physician; Holston Medical Group; HMG Gastroenterology - Kingsport; Sapling Grove Family Physicians; Dr. Marianne E. Filka, M.D.; Dr. William McCormick, M.D.; and Dr. Adel M. El Abbassi, M.D.

         Smith received treatment from her primary care physician, Dr. William McCormick, M.D., from May 2010 through January 2016 for asthma; COPD; hypertension; knee osteoarthritis; back degeneration; panic disorder with agoraphobia; nicotine dependence; generalized anxiety disorder; GERD; and depression (R. at 297-355, 370-76, 380-97, 401-22, 425-78, 518-24.) During this time period, Smith's pulmonary examinations revealed mild shallow respirations, diffuse wheezing, decreased breath sounds and no respiratory distress. (R. at 299, 304, 309, 320, 330, 334, 339, 350, 372, 389, 404, 428, 439, 444, 451, 461, 467, 476.) Smith's oxygen saturation ranged between 93 and 99 percent. (R. at 299, 304, 308, 320, 334, 338, 342, 349, 353, 372, 404, 428, 442, 439, 444, 450, 460, 466, 476, 521.) She was prescribed inhalers and nebulizers. (R. at 405, 428, 442, 445-46, 452, 467.) Smith routinely reported that her hypertension, COPD, asthma, depression and anxiety were stable. (R. at 297, 318, 327, 336, 370, 401, 425, 436, 448, 458, 464, 473.) Dr. McCormick noted that Smith's symptoms of COPD, hypertension, GERD and anxiety were stable with medications. (R. at 467, 476.) He reported that Smith's memory, attention, language, fund of knowledge and mood and affect were normal. (R. at 299, 304, 309, 320, 330, 339, 372, 389, 428, 439, 451, 461.)

         In August 2013, Smith complained to Dr. McCormick of bilateral knee pain. (R. at 370-74.) She had decreased range of motion in both knees. (R. at 372.) On September 12, 2013, Smith complained of diarrhea. (R. at 388.) Dr. McCormick reported that Smith had a normal gait, full muscle strength in both the upper and lower extremities and normal muscle tone. (R. at 389.) He diagnosed lower abdominal pain, diarrhea and esophageal reflux. (R. at 389.) In December 2013, Smith reported to Dr. McCormick that her anxiety and panic attacks had improved. (R. at 401.)

         Also, on September 12, 2013, Smith presented to Dr. Adel M. El Abbassi, M.D., to establish treatment. (R. at 361-64.) Smith reported that she smoked cigarettes. (R. at 362.) She denied anxiety and depression. (R. at 362.) Pulmonary examination showed quiet, even and easy respiratory effort with no wheezes or crackles. (R. at 363.) Smith's oxygen saturation level was 98 percent.[6] (R. at 363.) Dr. Abbassi reported that Smith had a normal attention span and ability to concentrate; she had a normal posture and gait; she had normal sensation and coordination; and she had intact deep tendon reflexes in the upper and lower extremities. (R. at 363.) A spirometry test showed significant reversibility with active asthma. (R. at 364, 366.) A pulmonary function test showed Smith's forced expiration volume one second, (“FEV1”), was 2.65 percent, 82 percent of the predicted FEV1. (R. at 366.) The FEV1 and forced vital capacity, (“FVC”), was 0.73 percent, 97 percent of the ...

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