United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on plaintiff Janice Jones's
(“Jones”) Motion (Filing No. 21) to reverse the
Commissioner of Social Security's decision and defendant
Nancy A. Berryhill's (“Commissioner”) Motion to
Affirm Commissioner's Decision (Filing No. 22). For the
reasons stated below, the Commissioner's Motion is
granted and Jones's Motion is denied.
first filed an application for social security benefits in
April of 2012 before an administrative law judge dismissed it
in January of 2013 for late filing. On April 22, 2013, Jones
applied for Supplemental Security Income (“SSI”)
and Retirement, Survivors and Disability Insurance. The
Commissioner denied both of the claims after determining
Jones was not disabled. Jones requested reconsideration, and,
after reconsideration, the Commissioner again denied the
claims. On November 7, 2013, Jones requested a hearing in
front of an Administrative Law Judge (“ALJ”).
first hearing on October 20, 2014, was postponed after
Jones's attorney and the ALJ began to argue. After a
second hearing on January 29, 2015, a different ALJ issued a
fully favorable decision to Jones, determining she met the
criteria for disability under the Social Security Act.
See 42 U.S.C. § 1382c(a)(3)(A). The Appeals
Council reviewed the case and determined the ALJ's
decision was not supported by substantial evidence. The
Appeals Council remanded the case for a third hearing. The
third hearing occurred on November 16, 2016, in front of a
third ALJ. That ALJ determined Jones was not disabled, and
the Appeals Council denied Jones's request for review.
the denial of her appeal, Jones filed a complaint in this
Court. Jones, proceeding pro se, claims she is disabled with
an onset date of March 18, 2011. She specifically points to a
recommendation that she see a specialist for her back from
Todd Sekundiak M.D. (“Dr. Sekundiak”), and the
fact that she has been unsuccessful in finding employment as
a parking-lot attendant. Jones also claims the hearing was
deficient because (1) its time changed, (2) Jones was not
sworn in until halfway through the hearing, and (3) the
vocational expert (“VE”) was not present for the
first part of the hearing and gave testimony over the phone.
is currently fifty-seven years old. She has an eleventh-grade
education and has been employed as a housekeeping custodian,
parking-lot attendant, casino porter, and grocery-store
stocker. She has not worked in any substantial capacity since
leaving employment as a housekeeping custodian at the
Nebraska Medical Center in February of 2011.
Summary of the Medical Records
31, 2012, Jonathan R. Thompson, M.D. (“Dr.
Thompson”) evaluated Jones after she alleged possible
tuberculosis, diffuse joint pain, and depression. Dr.
Thompson determined it was unlikely Jones had tuberculosis
and Jones's depressive symptoms did not seem to have
significantly affected her life. He found Jones had minimal
decreased range of motion in her wrists, excellent grip
strength, and excellent upper extremity strength. While she
had some decreased internal rotation of her hip and walked
with a slight limp, Jones had preserved knee flexion,
well-preserved ankle flexion, and no difficulty with lower
extremity muscle strength. Dr. Thompson concluded Jones had
diffuse body pain, noting tenderness in the lumbar and lower
thoracic spine with an otherwise well-preserved range of
motion. He concluded Jones “actually is quite well and
based on my exam today I feel she would be able to perform
most duties.” After seeing Dr. Thompson, Jones spoke
with Jennifer L. Lindner, Ph.D. (“Dr. Lindner”)
who performed a psychological interview and report on Jones.
Dr. Lindner determined that Jones (1) had some issues with
depression that could be addressed by outpatient therapy and
medication and (2) was capable of interacting appropriately
with coworkers and supervisors.
underwent a physical exam at Immanuel Medical Center on
September 20, 2012, by Robert Devin, MD (“Dr.
Devin”). According to Dr. Devin, Jones appeared in mild
pain distress. He concluded, “Back exam normal, Back
exam included findings of normal inspection, range of motion
normal.” The findings for upper extremity and lower
extremity were also normal. Dr. Devin noted the pain was
muscular and did not appear radicular.
to medical-progress notes from the Douglas County Health
Center Network Clinic (“Douglas County”), Jones
had continued back pain and multilevel degenerative lumbar
spondylosis on January 14, 2013. Douglas County recommended
Jones attend twice-weekly physical therapy on January 25,
2013. After a mental-status exam, Douglas County prescribed
Lexapro for depression, anxiety, and irritability. According
to a physical-therapy discharge summary, on February 8, 2013,
Jones exhibited decreased hip flexion in her right and left
hips, which were both rated at a three out of five in
flexibility. Jones's self-reported pain intensity in her
lumbar spine varied between nine and ten out of ten.
August 22, 2013, Travis Hanson, M.D. (“Dr.
Hanson”) examined Jones. Dr. Hanson reported five out
of five strength throughout her musculoskeletal system. He
noted some decreased range of motion of her lumbar spine and