Smith v. Colvin

9 F. Supp. 3d 875, 2014 U.S. Dist. LEXIS 40007, 2014 WL 1271188
CourtDistrict Court, E.D. Wisconsin
DecidedMarch 26, 2014
DocketCase No. 13-C-306
StatusPublished
Cited by11 cases

This text of 9 F. Supp. 3d 875 (Smith v. Colvin) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Colvin, 9 F. Supp. 3d 875, 2014 U.S. Dist. LEXIS 40007, 2014 WL 1271188 (E.D. Wis. 2014).

Opinion

DECISION AND ORDER

WILLIAM C. GRIESBACH, Chief Judge.

This is an action for review of the final decision of the Commissioner of Social Security denying Plaintiff Nicholas Smith’s application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. § 1381 et seq. For the reasons given below, the decision of the Commissioner will be reversed and remanded pursuant to 42 U.S.C. § 405(g) (sentence four).

I. Background

Smith, currently age 35, resides at his parents’ home with his wife and three children. (Tr. 116.) He was previously employed as a farm worker, foundry worker, and combine driver, and he alleges disability due to a combination of mental and physical impairments. (Tr. 142-43.) On September 23, 2003, he underwent a mental status consultative examination with Steven Krawiec in connection with an earlier disability application. (Tr. 371-74.) At that time, Smith was 25 years old. Dr. Krawiec administered the WAIS-III IQ test and found that Smith’s verbal IQ was 66, his performance IQ was 80, and his full scale IQ was 70. (Id.) Based on his examination, Dr. Krawiec made an Axis I diagnosis of adjustment disorder with depressed mood and an Axis II diagnosis of mental retardation. (Tr. 374.)

Smith’s physical ailments began as early as April 1998, when he injured his left [879]*879shoulder using a sledgehammer. (Tr. 345.) Joseph DiRaimondo, M.D., performed shoulder surgery on September 21, 1998. (Tr. 346.) Smith subsequently fractured his right ankle in an all-terrain vehicle (ATV) accident on July 13, 2005. (Tr. 499.) He underwent surgery to repair the ankle, and then physicians removed pins and other hardware from the ankle in October 2005 and August 2007. (Tr. 436, 474.) Smith was also diagnosed with mild carpal tunnel syndrome on November 22, 2005. (Tr. 442.)

Smith filed the current application for SSI on January 26, 2010, alleging disability beginning January 26, 2010, due to “mental retardation, shoulder pain status post clavicle resection, right ankle pain status post ankle surgery, neck and back pain (possibly discogenic), joint pain, fatigue, migraines, and reduced sensation and numbness in both arms.” (Tr. 26.) His application was denied initially and on reconsideration, and he requested a hearing. (Tr. 167, 179.) On October 13, 2011, a video hearing was held before ALJ Patricia E. Hartman (“the ALJ”) at which Smith, represented by counsel, and a vocational expert (VE) testified. (Tr. 110 — 47.)

At the hearing, Smith testified that he was in special education classes in school and did not graduate high school. (Tr. 117.) He reported that his reading ability is limited to a fifth or sixth grade level, which allows him to read children’s books but not newspapers. (Tr. 118.) He claimed he did not understand multiplication and division but could add and subtract on paper, and he would have to use paper to calculate the change on a purchase made with a $5 bill. (Id.) He testified he was no longer able to help his 12-year old daughter with homework because it was “getting too hard” for him. (Tr. 139.) He also reported that he drove a car two to three times per week, but not far from home. (Tr. 117.) When asked whether he had problems remembering things, he described the experience of forgetting that he stopped at a stop sign. (Tr. 126.) He reported problems with concentration and some difficulty understanding instructions, depending on complexity. (Tr. 126-27.) In addition to learning problems, Smith stated that “once in a great while” he does not feel like getting out of bed or leaving the house. (Tr. 124.) He indicated that he did not take any medication for depression. (Id.)

As for Smith’s physical impairments, Smith testified that he was unable to work due to back, neck, and ankle pain. (Tr. 121.) This pain bothered him “most of the time” and caused him to wake up every two hours. (Id.) He stated that about two to three times a month, his back would “flare up” and he would go to the doctor to get an IV and painkillers. (Id.) As an example, he reported that two days prior to the hearing he had visited the emergency room because his back and neck froze up on him. (Tr. 122.) Smith explained that his pain was located in his upper back and extended up into the left side of his neck. (Tr. 135-36.) He described his back pain as “constant” and indicated that cortisone shots provided relief. (Tr. 123.) He occasionally took prescription hydroco-done but otherwise used ibuprofen to manage his pain while at home. (Tr. 121-22.) He testified that he also had pain in both shoulders, although the left shoulder caused him the most pain. (Tr. 134.) He indicated that physical therapy had previously helped his shoulder and carpal tunnel syndrome, but his carpal tunnel was starting to come back. (Id.) He wore braces on his wrists two or three times per week. (Tr. 136.) Smith also reported that if he slept wrong, he would get back spasms and wake up with migraines. (Id.) The back spasms prevented him from reaching overhead. (Id.) As for his ankle, [880]*880Smith testified that after three surgeries, he was having problems with the joint and experienced swelling about 70% of the time. (Tr. 137.) On bad days, the ankle would turn black and blue. (Id.) He stated that he was given a “bracelet” (a brace) for his ankle in physical therapy, but he could only wear the brace for two to three hours per day. (Tr. 137-38.)

Smith testified that he experienced more pain in his back if he sat for a long time and more pain in his ankle if he walked for a long time. (Tr. 124-25.) He estimated that he could sit for one to one and a half hours, stand on his “good leg” for “quite a while,” though he might require hourly breaks to relieve stiffness, walk a little over a half mile to a mile, and lift up to 50 pounds. (Tr. 125-26.) Smith stated that he “would usually suffer” after walking a half mile and would have to sit down and let his ankle rest. (Tr. 126.) When asked to give examples of things he could lift, Smith reported that he lifted up his kids and that once a year, he helped a'friend move 50-pound pigs. (Tr. 134-35.) Smith testified that around the house, he would do some cooking and dishwashing, and he occasionally did laundry. (Tr. 127.) He picked vegetables in his mother’s garden, did a little bit of grocery shopping, and occasionally mowed the lawn on his good days. (Tr. 128.) He could watch the kids by himself and went fishing every once in a while. (Tr. 128-29.)

Smith recounted that he previously worked in a factory, as a combine driver, on a farm milking cows, and at a tree nursery. (Tr. 118-21.) He also reported that within the past five years, he had engaged in some farm work on his family members and friends’ farms. (Tr. 132-33.) Within the past two years, he had occasionally worked on a friend’s farm in exchange for gas money. He stated that he had gone to his friend’s farm a few times in the past month to drive a tractor that chops corn. (Tr. 133.)- He claimed that he only worked for about 20 minutes and that he never earned more than $50.00 in a month. (Tr. 132-33.)

On November 2, 2011, the ALJ found that Smith was unable to perform his past relevant work but was not disabled because he could perform other jobs that existed in significant numbers in the national economy. (Tr.

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9 F. Supp. 3d 875, 2014 U.S. Dist. LEXIS 40007, 2014 WL 1271188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-colvin-wied-2014.