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Smead v. Commissioner of Social Security

United States District Court, D. Vermont

June 6, 2014

Lorelei Ann Hodgdon Smead, Plaintiff,
Commissioner of Social Security, Defendant.


JOHN M. CONROY, Magistrate Judge.

Plaintiff Lorelei Ann Hodgdon Smead brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits. Pending before the Court are Smead's motion to reverse the Commissioner's decision (Doc. 8), and the Commissioner's motion to affirm the same (Doc. 11). For the reasons stated below, I recommend that Smead's motion be DENIED, and the Commissioner's motion be GRANTED.


Smead was 40 years old on her alleged disability onset date of January 1, 2001. She has a high school education and has taken courses in business management. She has worked as an office manager, a waitress, a receptionist, a store owner, and a business manager. She has been married to her second husband since approximately 2000, and has two grown children and one grandchild. She and her husband own a business called Smead Woodcraft which manufactures handcrafted wood cutting boards. Prior to marrying her husband, she helped start another business known as Brick House Tile.

Since approximately 2000, Smead has suffered from debilitating migraine headaches which vary in severity and are aggravated by stress. She also suffers from back pain, body aches, and pain in the right side of her face, among other ailments. Smead testified at the August 2010 administrative hearing that, on a typical day, she is "totally in pain" and can manage only to shower, take her medications, prepare and eat simple meals, go to doctor's appointments with the assistance of her mother or husband, and occasionally go shopping with the assistance of her mother. (AR 45-46; see also AR 1381-85.) She further testified that she lies down for over three hours each day, and is unable to do any household chores on her own. (AR 46; see also AR 1388.) She stated: "My days are just trying to make it through th[e] day [in] as [little] pain as I can and trying to remember my doctors' appointments." (AR 47.) At her more recent January 2013 hearing, Smead testified that she "can't walk anywhere, " given that she has pain everywhere in her body. (AR 1381.) She also testified that she has such significant memory problems that she could not recall someone with whom she had been "really good friends." (AR 1388.)

In August 2008, Smead protectively filed applications for supplemental security income and disability insurance benefits. Therein, she alleged that, starting on January 1, 2001, she was unable to work due to "[s]evere migraines and back problems." (AR 136.) She also alleged that she had problems with her memory, and that doing anything physical caused her extreme back pain. ( Id. ) In an updated report, Smead stated that her physical impairments were worsening, leaving her in bed more often. (AR 173.) She stated: "[my] migraines are more frequent and [my] back pain is worse[; I] can't do much of anything." ( Id. ) She further stated that she "might" have fibromyalgia but needed a second opinion to confirm the diagnosis. ( Id. ) In a more recent report, noting that her "pain is 100% worse than ever, " Smead stated: "now [I] have [fibromyalgia] and trigeminal neuralgia." (AR 238.)

Smead's disability application was denied initially and upon reconsideration, and she timely requested an administrative hearing. The hearing was conducted on August 30, 2010 by Administrative Law Judge ("ALJ") Thomas Merrill. (AR 23-55.) Smead appeared and testified, representing herself. Her husband, Donald Smead, also testified, along with a vocational expert ("VE"). On October 25, 2010, the ALJ issued a decision finding that Smead was not disabled under the Social Security Act from her alleged onset date of January 1, 2001 through the date of the decision. (AR 7-17.) Smead appealed the ALJ's decision to this Court, and on February 2, 2012, pursuant to the parties' agreement, the Court remanded the matter to the Commissioner for further proceedings. (AR 1419-23.) A second administrative hearing was conducted by ALJ Merrill on January 14, 2013. (AR 1348-96.) Smead again appeared and testified, this time represented by counsel. A medical expert, neurologist Dr. Gerald Winkler, also testified. On March 18, 2013, the ALJ issued a new decision, finding for a second time that Smead was not disabled from her alleged onset date of January 1, 2001 through the date of the decision. (AR 1309-21.) Smead did not file written exceptions to the ALJ's decision on remand, and thus the decision became final. See 20 C.F.R. §§ 404.984(a), 416.1484(a). Having exhausted her administrative remedies, Smead filed the Complaint in this action on June 25, 2013. (Doc. 1.)

ALJ Decision

The Commissioner uses a five-step sequential process to evaluate disability claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step requires the ALJ to determine whether the claimant is presently engaging in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe impairment, the third step requires the ALJ to make a determination as to whether that impairment "meets or equals" an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

If the claimant is not presumptively disabled, the ALJ is required to determine the claimant's residual functional capacity ("RFC"), which means the most the claimant can still do despite his or her mental and physical limitations based on all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do "any other work." 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do, " Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step five is limited, and the Commissioner "need not provide additional evidence of the claimant's [RFC]").

Employing this sequential analysis, ALJ Merrill first determined that Smead had not engaged in substantial gainful activity since her alleged disability onset date of January 1, 2001. (AR 1311.) At step two, the ALJ found that Smead had the severe impairments of migraine headaches, trigeminal neuralgia, and low back pain. (AR 1312.) Conversely, the ALJ found that Smead's depression and anxiety were non-severe. (AR 1312-13.) Regarding Smead's fibromyalgia, the ALJ stated that he was "constrained to find no medically determinable impairment [, but]... will consider [Smead's] reported chronic pain as falling under the severe impairments listed above." (AR 1313 (citation omitted).) At step three, the ALJ found that Smead's impairments did not meet or medically equal a listed impairment. ( Id. ) Next, the ALJ determined that Smead had the RFC to perform "the full range of work at all exertion levels, except she should avoid all exposure to unprotected heights due to pain." (AR 1314.) Given this RFC, and considering the VE's testimony at the first hearing, the ALJ found that Smead was able to perform her past relevant work as a store owner, a bookkeeper, a receptionist, and a waitress. (AR 1320.) The ALJ concluded that Smead had not been under a disability from her alleged disability onset date through the date of the decision. (AR 1321.)

Standard of Review

The Social Security Act defines the term "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A person will be found disabled only if it is determined that his "impairments are of such severity that he is not only unable to do his previous work[, ] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

In considering a Commissioner's disability decision, the court "review[s] the administrative record de novo to determine whether there is substantial evidence supporting the... decision and whether the Commissioner applied the correct legal standard." Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court's factual review of the Commissioner's decision is thus limited to determining whether "substantial evidence" exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."). "Substantial evidence" is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 ...

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