United States District Court, D. Nebraska
GREGORY D. VANG, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
brings this action under Title II of the Social Security Act
(“Act”), which provides for judicial review of
“final decisions” of the Commissioner of the
Social Security Administration. 42 U.S.C. § 405(g)
NATURE OF ACTION & PRIOR PROCEEDINGS
filed an application for disability benefits on October 9,
2015. (Filing No. 12-5 at CM/ECF pp. 188-189.) The
claim was denied initially (Filing No. 12-4 at CM/ECF pp.
113-116) and on reconsideration (Filing No. 12-4 at
CM/ECF pp. 118-121). On October 19, 2016, following a
hearing, an administrative law judge (“ALJ”)
found that Plaintiff was not under a “disability”
as defined in the Act. (Filing No. 12-2 at CM/ECF pp.
9-27.) On January 19, 2017, the Appeals Council of the
Social Security Administration denied Plaintiff's request
for review. (Filing No. 12-2 at CM/ECF pp. 1-4).
Thus, the decision of the ALJ stands as the final decision of
the Commissioner. Sims v. Apfel, 530 U.S. 103, 107
(2000) (“if . . . the Council denies the request for
review, the ALJ's opinion becomes the final
Defendant agrees with Plaintiff's statement of facts,
which are set forth verbatim below:
In his application for disability benefits, plaintiff stated
that he was born on May 4, 1965,  and that he became unable to
work on July 8, 2014. (Filing No. 12-5, at CM/ECF p.
188). The plaintiff testified that he last worked in
maintenance at a Wal-Mart distribution center. (Filing No.
12-2, at CM/ECF p. 36-37). He has performed no
substantial and gainful work activity since the date of his
alleged onset of disability, July 8, 2014. (Filing No.
12-2, at CM/ECF p. 12).
At his hearing the plaintiff stated that he completed high
school for his level of education. (Filing No. 12-2, at
CM/ECF p. 36).
Plaintiff's has past relevant work consisted of working
in loss prevention and store maintenance. (Filing No.
12-2, at CM/ECF p. 36-37).
The plaintiff alleged disability due to degenerative disc
disease of the thoracic and lumbar spine with residuals of
surgery; carpal tunnel syndrome (“CTS”); and
obesity. (Filing No. 12-2, at CM/ECF p. 14).
The plaintiff has a history of lumbar disc surgery prior to
his alleged onset date of disability. (Filing No. 12-2,
at CM/ECF p. 40). Then, in May of 2012, the plaintiff
injured his thoracic spine while doing heavy lifting on the
job. (Filing No. 12-5, at CM/ECF p. 195). An MRI
performed in June of 2012 revealed right mid thoracic disc
herniation impinging on the spinal cord. However, no abnormal
signal within the spinal cord was observed. (Filing No.
13-1, at CM/ECF p. 440). Further, despite this, the
plaintiff continued to work into the month of July. At that
time, the plaintiff reported that he stopped working due to
radiating pain, numbness, and weakness in his legs. (Filing
No. 13-1, at CM/ECF p. 432). An MRI study of the
lumbar spine was also performed at that time, which revealed
degenerative changes at ¶ 4-5, with post-operative
changes causing some narrowing of the left lateral recess and
left neural foramen. (Filing No. 13-1, at CM/ECF p.
439). The plaintiff was examined in March of 2015.
There, he was noted to have undergone a previous fusions
[sic] and discectomy of the thoracic spine in March of 2013.
During this examination, in March of 2015, an updated MRI of
the thoracic spine was obtained. The study revealed no
significant canal or foraminal changes through T4. At ¶
4-5, canal stenosis was found to be mild and no significant
canal or foraminal changes could be seen through the
remainder of the thoracic spine. At the time of this
examination, the plaintiff was noted to have a BMI of over
42, which is consistent and supportive of his diagnosis of
obesity. Further upon exam, despite his obesity, he was noted
to have a normal cardiovascular examination; he was fully
alert and oriented; and his coordination was normal. (Filing
No. 13-5, at CM/ECF p. 775-778).
The plaintiff was also referred to Lincoln Orthopedic
Physical Therapy for a functional capacity evaluation by
licensed occupational therapist Mr. Bruce Bednar, OTR/L, CHT,
CWCE, in July of 2014. There, Mr. Bednar determined that the
plaintiff was best suited for light work, and that his
strength and endurance would continue to improve “at
some point in the future.” The plaintiff was noted to
have restrictions in squatting, bending, and kneeling to an
occasional basis. He was also limited to crouching and
stooping on an “infrequent basis;” and he was
limited to occasional overhead reaching with frequent forward
reaching. Mr. Bednar also opined that the plaintiff would be
able to sit or stand for 1-2 hours at a time and may require
short rest breaks to relieve pain. (Filing No. 13-4, at
CM/ECF p. 558-559).
Upon examination by Mr. Bednar in July of 2014, the plaintiff
demonstrated full grip strength bilaterally. He was noted to
be able to walk for six minutes with a normal pace and gait
pattern. He was able to kneel for three full minutes. He was
able to complete 10 squats. He demonstrated a full range of
motion with reaching both forward and overhead, and he passed
all balancing tests with his left and right lower
extremities. Moreover, he was noted to be able to push and
pull with a sustained force of 30 pounds and a maximum force
of 40 pounds, he was observed carrying a tote weighing 20
pounds on an occasional basis, and he did not demonstrate any
neurological weakness in his bilateral lower extremities;
however, he did report some diminished sensation extending
along the right rib cage from his thoracic spine around the
right side to his front mid section. (Filing No. 13-4, at
CM/ECF p. 560-565).
It should be noted that Mr. Bednar was of the opinion that
the plaintiff could not engage in frequent lifting or
carrying. (Filing No. 13-4, at CM/ECF p. 566).
During an examination from December of 2015, the plaintiff
was found to be obese, but respiratory and cardiovascular
exams were normal. Further, a sensory exam was normal; his
muscle bulk and tone were normal; he was found to have normal
muscle strength in all areas tested; and his coordination was
normal. (Filing No. 13-7, at CM/ECF p. 884-886).
During a separate exam from December of 2015, the plaintiff
was noted to have a normal gait and normal posture. Further,
at that time, an exam of the lumbar spine revealed normal
strength and tone, no laxity or crepitus, no spasms, and no
known fractures or deformities. Moreover, straight leg raise
testing was negative. (Filing No. 13-7, at CM/ECF p.
The plaintiff has been clinically diagnosed with bilateral
CTS, and these diagnoses have been confirmed thought [sic]
EMG and NCV studies. Said studies revealed mild right median
neuropathy at the wrist and moderately severe left median
neuropathy at the wrist. However, no evidence of right or
left ulnar neuropathy was noted, and as mentioned, the
plaintiff was able to demonstrate full grip strength during
testing in June of 2016. (Filing No. 13-7, at CM/ECF p.
The plaintiff presented for a follow-up examination in April
of 2016, where he continued to report significant back pain.
At that time, he demonstrated positive straight leg raise
testing on the left with evidence of L5 type radiculopathy,
and he was noted to have range of motion deficits in his
lumbar spine. However, an examination of his thoracic spine
was “relatively unremarkable.” (Filing No.
13-7, at CM/ECF p. 939-940).
The State agency examiners' opinions were that the
plaintiff would be able to lift 10 pounds frequently, and 20
pounds occasionally; that he could stand, walk and sit for 6
hours out of an 8 hour work day; that he could never climb
ladders, ropes or scaffolds, but could occasionally climb
ramps or stairs, stoop, crouch, kneel and crawl. (Filing No.
12-3, at CM/ECF p. 89-98 and 100-111).
The plaintiff testified that he cannot be on his feet for
enough time to perform his past work because of back spasms
in his lower back and upper back and with the cramping that
he has in his hands. (Filing No. 12-2, at CM/ECF p.
40). He testified that the pain level he experiences
based on a 0 to 10 scale with 10 being the worst is 5-6 even
though he avoids activity such as lifting, pulling, pushing
and bending which aggravates his pain, and that even with
these precautions, it will rise to a level of 8 or 9. He
further noted that recently he had climbed three flights of
stairs which caused the pain level to go to 8 or 9 and that
the pain level caused him to lie down for two hours before
the pain level started to subside. It was his testimony that
these rises in pain level to 8 or 9 were occurring about
twice a week. (Filing No. 12-2, at CM/ECF p. 41-42).
The plaintiff also testified that he has an upper back pain
of 3 or 4 on the 10 point scale in the rib cage area. He
noted that the pain in that area can be triggered to a level
of 8 or 9 by lifting or carrying something and his pain level
is increased. When these rises in pain occur, they can
require two to three hours to subside after lying down. He
reported these problems occurring every three to six weeks.
(Filing No. 12-2, at CM/ECF p. 46-48).
The plaintiff also described the problem caused by his carpal
tunnel syndrome (“CTS”). He explained that it
causes cramping and pain with use of his hands. As a recent
example he described that just spending about 3 minutes the
day before skinning a fish, he experienced severe cramping
and a pain level of between 7 and 8. He also had a similar
experience the day before the fish skinning when he was
picking up a bunch of nuts and bolts that he had dropped to
the ground. (Filing No. 12-2, at CM/ECF p. 49-51).
Similarly, the plaintiff testified as to the difficulty he
has standing in one place like the kitchen counter or kitchen
sink. After about 10 minutes he needs to go to his recliner
because of pain in his back. (Filing No. 12-2, at CM/ECF
p. 51). The back problem also limits his ability to sit
in a straight back chair like a kitchen chair or an office
chair. It was his testimony that such activity was limited by
the pain to an hour to an hour and 15 or 20 minutes when it
would become necessary to move around. He ...