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Denise M. Smith v. Michael Astrue

December 3, 2012

DENISE M. SMITH, PLAINTIFF
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: (Judge Caputo)

(Complaint Filed 6/29/11)

MEMORANDUM

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Denise M. Smith's claim for social security disability insurance benefits and supplemental security income benefits.

On August 11, 2008, Smith filed protectively*fn1 an application for disability insurance benefits and on August 16, 2008, an application for supplemental security income benefits. Tr. 31, 79, 81 and 109-117.*fn2 The applications were initially denied by the Bureau of Disability Determination*fn3 on April 16, 2009. Tr. 82-90. On May 29, 2009, Smith requested a hearing before an administrative law judge. Tr. 17 and 93-94. After about 12 months had passed, a hearing was held on May 19, 2010. Tr. 31-60. On June 22, 2010, the administrative law judge issued a decision denying Smith's applications. Tr. 17-27. On August 9, 2010, Smith filed a request for review with the Appeals Council and on May 13, 2011, the Appeals Council concluded that there was no basis upon which to grant Smith's request. Tr. 1-6 and 11-13. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Smith then filed a complaint in this court on June 29, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on January 2, 2012, when Smith elected not to file a reply brief.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Smith met the insured status requirements of the Social Security Act through September 30, 2011. Tr. 17, 19 and 151.

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income.

Smith, who was born in the United States on March 12, 1964,*fn5 graduated from high school in 1982 and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 109, 151, 156 and 161. During her elementary and secondary schooling, Smith attended regular education classes. Tr. 156. Smith also completed training to become a nurse's aid. Id.

Smith has past relevant work experience*fn6 as a cashier, described by a vocational expert as unskilled to semiskilled, light work; a machinist, described as light, semiskilled work; and as a waitress, described as unskilled, light work.*fn7 Tr. 26 and 55-56.

Smith has a limited earnings. Records of the Social Security Administration reveal that Smith had reported earnings in 1981 through 1989, 1994 and 1996 through 2008. Tr. 133. Smith's total earnings during those years were $88,296.54. Id. From 1996 through 2008, Smith's earnings were as follows: 1996 $1232.41 1997 785.00 1998 476.84 1999 513.90 2000 1700.92 2001 7118.72 2002 6976.31 2003 4520.25 2004 2695.67 2005 8135.95 2006 2219.36 2007 3342.14 2008 3382.54

Id. Although Smith claims that she became disabled as the result of depression and anxiety on December 1, 2004,*fn8 she testified that her last employment was at a Burger King in November, 2008. Tr. 51 and 152. Smith claims that she has difficulty taking constructive criticism and dealing with people. Tr. 37 and 152. Smith does not claim that she is disabled as the result of a physical impairment only "psychological and emotional" impairments. Tr.

56. Smith testified that she smokes three pack of cigarettes per day to relieve stress and "as a crutch to help try to relax." Tr. 53. The record reveals that Smith has a history of using illegal drugs, including marijuana and cocaine. Tr. 214-215 and 224. In fact one of her emergency room visits (on September 5, 2006) at which she complained of depression was the day after she consumed cocaine. Tr. 215.

A document completed by Smith on March 11, 2009, entitled "Function Report - Adult" and her testimony at the administrative hearing reveals that Smith exercises on a daily basis and enjoys reading and watching TV; she is able to perform household chores and take care of a learning disabled son (including preparing him meals, getting him off to school and helping him with his studies); she attends church services on a weekly basis and regularly goes to Bible study and support group meetings; she has no problem with personal care, such as dressing and bathing; she prepares meals on a daily basis; she does not drive because she does ...


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