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Smith v. Colvin

United States District Court, N.D. Illinois, Eastern Division

June 23, 2014

JEROME SMITH, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., District Judge.

Jerome Smith seeks judicial review of the Commissioner of Social Security's determination that he is not disabled and is therefore ineligible to receive Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Now before the Court is Smith's motion for summary judgment. Dkt. 12. For the following reasons, the Court grants Smith's motion and remands for further proceedings consistent with this Opinion.

I. Background

A. Factual and Procedural Background

Smith was born on August 27, 1951. He is a high school graduate and studied accounting at college for approximately one year. R. 32.[2] He stopped working as a truck dispatcher in 2007 upon being laid off, after which he reports being unable to find other work. R. 32-33, 219. At the time of the administrative hearing in this case, Smith lived in a recovery home for alcoholics and other people. R. 34-35. He maintains that since December 2009, he has been disabled due to limitations related to his diabetes, diabetic neuropathy, high cholesterol, depression, anxiety, shortness of breath, pain, obesity, the side effects of his medications, and other ailments.

On March 17, 2010, Smith filed an application for SSI with the Social Security Administration. On April 23, 2010, he filed for DIB. In both applications, Smith alleged disability beginning December 1, 2009. His date last insured was March 12, 2013. His applications were denied initially and upon reconsideration. Smith requested and received a hearing before an administrative law judge ("ALJ"), at which Smith (who was represented by counsel) and a vocational expert testified. R. 29-67. After the administrative hearing, the ALJ denied Smith's claim on the ground that he is not disabled. R. 10-20. The Social Security Council subsequently denied Smith's request for review, leaving the ALJ's decision as the final decision of the Commissioner. R. 1-5; Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). Smith now seeks review of that decision pursuant to 42 U.S.C. ยง 405(g).

B. Medical Evidence

Smith has seen several doctors and takes multiple medications to treat his ailments. Smith is overweight or obese: He is five-foot-seven and has weighed between 185 and 203 pounds. R. 36, 218. He takes medications for high blood pressure, diabetes, high cholesterol, acid reflux, and depression. R. 222, 261. Between 2008 and 2010, Smith was treated at the Vista Health Center. R. 321-56. These records are mostly handwritten and difficult to decipher, but appear to be primarily related to physical impairments such as diabetic neuropathy, pain, and high blood pressure; they also include diagnoses of alcohol abuse and anxiety. R. 332, 334-35, 338-39.

Smith's most recent treatment has occurred primarily at the Oak Forest Hospital. R. 36. In April 2010, he was admitted to Oak Forest with abdominal pain and alcohol withdrawal syndrome; records from this stay also note depression. R. 370, 373-74. In May 2010, Smith was seen at Oak Forest on an outpatient basis; records note that he had hypertension, depression, diabetes, and alcoholism and that he followed up with outpatient eye and diabetic foot exam appointments. R. 612-17. On July 21, 2010, Smith was again admitted to Oak Forest Hospital after going to the emergency room for epigastric chest pain that worsened with movement, coughing, and respiratory efforts. R. 475. Medical records from his stay indicate that he had been experiencing shortness of breath when lying down at night associated with palpitations and occasionally jerky movements. R. 477. Records also show that Smith had also been experiencing progressively decreasing capacity for exercise to the point where he experienced shortness of breath after walking one hundred feet. Id. While admitted, he received respiratory therapy. R. 419-69. A pulmonary function test showed a mild reduction in vital capacity and moderately reduced unadjusted DLCO (diffusing capacity); the technician's notes state, "Although FEV1/FVC ratio does not exceed 95% confidence interval to formally call obstruction, it is nearly there." R. 643-47.[3] Social work case coordination notes indicate that he had a place to stay temporarily at a rented room with a friend, but that he had no income and wanted more permanent housing. R. 479. Smith was discharged on August 10, 2010. R. 477. On October 5, 2010, Smith returned to the Oak Forest emergency room, needing a medication refill. R. 629-30. The primary diagnosis listed on records from that visit is depression, with other diagnoses for diabetes and insomnia. R. 629. Smith returned to Oak Forest for follow-up appointments later that month, R. 638-39, for appointments related to his hypertension and diabetes in January 2011 and for psychiatric care and medication refills in December 2010 and February 2011, R. 622-25, 634-37, 640.

Dr. Herman Langner, a psychiatrist, met with and evaluated Smith for the Bureau of Disability Determination Services on June 16, 2010. R. 389-91. He diagnosed Smith as having generalized anxiety disorder and dysthymic disorder with a history of hypertension, high cholesterol, and diabetes, with a Global Assessment of Functioning ("GAF") score of 45. R. 391. Dr. Langner's records do not include a medical source statement, which is "a statement from a treating or examining physician that explains what a claimant can do despite [his] impairments." Thomas v. Colvin, No. 13-2602, 2014 WL 929150, at *4 (7th Cir. Mar. 11, 2014).[4]

Dr. Howard Tin, a medical consultant, completed a mental residual functional capacity assessment of Smith on July 13, 2010. R. 406-09. He concluded that Smith had moderate limitations in certain activities related to understanding and memory, sustained concentration and persistence, and social interaction, and that Smith was not significantly limited or showed no evidence of limitations in other activities. Dr. Tin noted that Smith is oriented, understands simple instructions, and claims to have a short attention span and various mental and physical problems. Dr. Tin opined that Smith "has difficulty carrying out detailed instructions and maintaining attention and concentration for extended periods of time, " but "is capable of performing simple tasks." R. 408. He explained that Smith "has difficulty in interacting appropriately with the general public and admits that he is withdrawn and isolates himself, so limit work tasks that do not require interaction with the general public." Id. Finally, Dr. Tin concluded that Smith "has the ability to respond appropriately to changes in work settings, being aware of normal hazards and travel in unfamiliar settings and set realistic goals." Id.

Dr. Calixto Aquino, a medical consultant, completed a physical residual functional capacity assessment of Smith on July 14, 2010. R. 410-17. The assessment notes a primary diagnosis of diabetes and a secondary diagnosis of hypertension. R. 410. Dr. Aquino concluded that Smith could occasionally lift fifty pounds and frequently lift twenty-five pounds; stand, walk, or sit with normal breaks for about six hours in an eight hour workday; and was not limited with regard to pushing or pulling, including operation of hand or foot controls. R. 411. Dr. Aquino noted no postural, manipulative, visual, communicative, or environmental limitations. R. 412-16. Dr. Aquino stated that Smith's "statements are partially credible in light of the overall evidence, " explaining that his "medically determinable impairment can be expected to produce some limitations in function, but the extent of the limitations described by the claimant exceeds that supported by the objective medical findings cited above." R. 417. Finally, Dr. Aquino commented, "No MSS, so no controlling [weight] given." Id.

On November 1, 2010, Dr. Ernst Bone and Phyllis Brister, Ph.D., reviewed Smith's file on reconsideration of his initial denial and determined that the July 14 and June 16 residual functional capacity assessments could be affirmed. R. 619. The explanation on reconsideration stated that while Smith may have some hypertension, high cholesterol, and diabetes, these conditions are adequately controlled with medical management without "extremely debilitating limitations nor any end organ damage, " therefore Smith's limitations are not sufficiently serious to be disabling. R. 620. Additionally, "while [Smith] alleges depression, compulsiveness, and nervousness, there is no indication of serious mental illness, but there is evidence of a history of heavy alcohol abuse." Id. The decision stated that "nothing has changed about this man's condition since the time of the last decision and as such, it is now determined that both of the previous eforms as well as the previous determination can be ...


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