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Smith v. Astrue

July 4, 2010


The opinion of the court was delivered by: Reagan, District Judge


A. Introduction

Pursuant to 42 U.S.C. § 405(g), Kenneth Smith petitions this Court to review the final decision of the Social Security Administration denying him Supplemental Security Income ("SSI") under 42 U.S.C. § 1382, Disability Insurance Benefits ("DIB") under 42 U.S.C. § 423, and a Period of Disability ("POD") under 42 U.S.C. § 416(I). In addition to submitting the administrative record (Doc. 10, "R."), the parties have fully briefed their positions (Docs. 14, 19).

The decision which Smith challenges can be summarized as follows. By written opinion dated January 6, 2009, Administrative Law Judge ("ALJ") Joseph W. Warzycki concluded that Smith was not disabled and, despite "severe" chronic pain syndrome and affective mood disorder, had the residual functional capacity to perform sedentary work, albeit with a few restrictions (R. 12-23). The Appeals Council of the Social Security Administration denied Smith's request for review, making ALJ Warzycki's opinion the final decision of the Commissioner of Social Security (R. 4-6). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

As is discussed further below, in conducting judicial review under § 405(g), a district court is limited to determining whether the final decision of the Commissioner is "supported by substantial evidence and based on the proper legal criteria." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005), citing Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). The court should consider both the evidence that supports and the evidence that detracts from the Commissioner's decision, and "the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues." Briscoe, 425 F.3d at 351, citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

B. Issues Presented

Kenneth Smith's physical ailments are not in dispute, per se. Rather, this appeal centers around the sufficiency of the evidence and ALJ Warzycki's analysis. More specifically, Smith argues (Docs. 3, 14) that:

1. The ALJ's decision is not supported by substantial evidence;

2. The ALJ was swayed by the lack of a clear medical diagnosis, while ignoring medical opinions indicating that there was no definable solution to Smith's unquestioned severe pain; and

3. The ALJ erred in assessing Smith's credibility.

Defendant Astrue ("the Commissioner") counters that sufficient evidence in the record supports the ALJ's decision and that, despite his pain, Smith was properly assessed as being capable of performing sedentary work (Doc. 19).

C. Summary of Evidence and Relevant Procedural History

On May 25, 2006, Kenneth Smith applied for DIB and SSI, alleging the onset of disability as of September 17, 2005, due to chronic abdominal and hip pain (R. 70-73 and 414-417).

Medical records reflect that Smith sought emergency treatment on September 19, 2005 for severe pain on his right side (R. 290). As it was believed that Smith had a "back pull" or muscle spasm, he was prescribed Voltaren and Soma for pain relief and muscle relaxation (R. 290). Smith, a warehouse worker for Schnuck's Markets, was seen by physicians at the St. Louis Labor Heath Institute and was deemed unable to work (R. 291, 61).

He stayed off work and continued testing and treatment for pain which, by early October 2005, doctors speculated could be caused by chronic prostatitis (R. 292). The only remarkable finding was that Smith had a "mild" focal protrusion at the C4-5 level in his spine, with "very slight" impingement on the anterior margin of the cervical spinal cord, as well as disc spurring at C5-6, resulting in some narrowing (R. 344-345). By the end of 2005, doctors surmised there could be a neurological basis for Smith's pain, so Smith was referred to a neurologist (R. 296-297). Doctors also continued Smith's work slip through January 31, 2006(R. 297).

After testing and examination, Dr. Paisith Piriyawat of the St. Louis University Department of Neurology opined that there was no neurological reason for Smith's pain (R. 328). However, Smith was directed to take Neurontin for pain relief (R. 328). According to neurosurgeon Dr. Daniel Scodary, Smith had a completely normal exam, and the doctor found Smith's complaints "atypical" (R. 327). Dr. Scodary referred Smith to a pain management clinic (R. 327).

On January 30, 2006, Dr. Stephen G. Smith, a pain management specialist, increased Smith's dose of Neurontin and also prescribed Lidoderm patches for pain relief (R. 325-326).

Another neurologist, Dr. Daniel T. Mattson, examined and tested Smith in early 2006. An MRI revealed minor narrowing of the T7-8 disc space (without herniation). Otherwise, tests, including a spinal tap to test for myelitis (spinal cord inflamation), were all normal, and Smith was found to have full motor strength (R. 172-198).

On May 3, 2006, Dr. Mattson noted that taking Neurontin had reduced Smith's pain by about 50% (considered typical improvement), so Smith was directed to continue taking the drug (R. 176-177). Dr. Mattson did not think there was a "true neurologic cause" for Smith's symptoms and advised Smith to pursue pain management. Cymbalta was prescribed for Smith's related depression (R. 176-177).

In June 2006, Smith sought treatment from Pain Management Services and was seen by Dr. Sam Page (R. 271). Smith complained of severe abdominal pain -- pain that he described as being both constant and intermittent (R. 271). Smith was diagnosed as having neuritis and "emerging" depression, for which Neurontin and Cymbalta again were prescribed (R. 273-274). Dr. Page observed that the pain prevented repetitive lifting and therefore precluded warehouse work (R. 274).

Two weeks later, the doctor noted that Neurontin seemed to be alleviating Smith's pain (R. 276). On August 4, 2006, Dr. Page concluded that Smith was affected by severe depression, and Smith was ordered off work through September 15, 2006. This meant that Smith had not worked for a full year since he first became symptomatic (R. 278).

A complete neurological work-up was performed, including an EEG and nerve velocity tests, as well as a Holter heart monitor test, gastrointestinal and blood tests. All were normal, although small fiber neuropathy could not be ruled out (R. 131-148). On September 1, 2006, Dr. Page stated that he did not have an answer for Smith's left flank pain and he did not have a lot of ideas for this difficult problem, but that antidepressants were related to Smith's difficulties, and his depression should be treated, along with continuing a neurological work-up (R. 132, 282).

A year later, in September 2007 (which was two years after becoming symptomatic), Smith sought treatment from Dr. Alberto Butalid, M.D., who diagnosed Smith with a skin infection, osteoarthritis, and chronic pain syndrome (R. 351-353). In December 2007, Dr. Raymond Leung, M.D., performed a consultative physical examination in connection with Smith's application for benefits. Dr. Leung observed that Smith's memory was intact, that Smith had a "mild" limp but walked 50 feet unassisted, and that Smith was able to tandem-walk and hop, heel-walk, toe-walk, and squat (R. 149). A decreased range of motion in Smith's lumbar spine was noted, but no atrophy or spasms. And Smith's finger movement, hands, and grip were all found to be fine (R. 150-153).

Smith underwent a psychological evaluation in December 2007 by Dr. Stephen G. Vincent, Ph.D. At that time, Smith described his pain as six or seven on a ten-scale with medication, and as a nine without medication (R. 146). According to Smith, he was depressed, he was having difficulty sleeping, his memory and focus were poor, and he lacked energy and ambition; but he denied being psychotic (R. 145-146). Dr. Vincent further observed that Smith walked slowly and exhibited hand tremors (R. 145). When tested, Smith was able to remember six numbers forward and four backward. He could also perform serial seven calculations from 100 back to 44 without error, but he exhibited a short term memory lapse (R. 147).

Based on Dr. Page's reports and his own testing and observations, Dr. Vincent opined that Smith's polyneuralgia and depression impaired his ability to function, his focus, concentration and pace, but Smith was not psychotic (R .147). Smith was diagnosed as having "major" depression, pain disorder with psychological factors and general medical conditions (R. 147).

In January 2008, in connection with the agency review of Smith's application for benefits, psychologist Dr. Howard Tin, Ph.D., concluded that Smith had the affective disorder of "major depression" (see 20 C.F.R. Pt. 404, Subpt. P. App. 1 § 12.04 and somatoform disorder, meaning physical symptoms for which there are no demonstrable organic findings or known psychological mechanisms, i.e, pain disorder (see 20 C.F.R. Pt. 404, Subpt. P. App. 1 § 12.07) (R. 154). Nevertheless, Dr. Tin concluded that these ailments only had a "mild" impact on Smith's daily activities and his ability to maintain concentration, persistence, and pace (R. 164). No so-called "C criteria" were present, meaning that Smith did not experience decompensation or any adjustment disorder (see 20 C.F.R. Pt. 404, Subpt. P. App. 1 § 12.02(C)). Dr. Tin also noted that Smith was not receiving psychiatric treatment (R. 166).

In January 2008, agency physician Dr. B. Rock Oh, M.D., issued a residual functional capacity assessment premised upon a review of Smith's records. Smith was found capable of lifting and carrying 50 pounds occasionally and 25 pounds frequently, capable of standing and/or walking and/or sitting for six hours during an eight-hour work day, and with unimpaired ability to push and pull. Smith had neither manipulative limitations nor any environmental limitations (R. 169-172). Smith's "mild" limp, left side, hip and abdominal pain all were acknowledged, but Smith was deemed capable of walking 50 feet unassisted (R. 175). Smith's range of motion in the lumbar spine was noted, and his extension was limited to five degrees (id.). Dr. Oh concluded that Smith had the residual functional capacity for "medium" work activity ...

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