United States District Court, D. Nebraska
ERICA M. SMITH, Plaintiff,
ANDREW M. SAUL,  Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
Smith appeals from the denials, initially and upon
reconsideration, of her applications for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401 et seq., and supplemental social
security income benefits under Title XVI of the Act, 42
U.S.C. § 1381 et seq. The Court has considered
the parties' filings and the administrative record and
reverses the Commissioner's decision.
February 2015, Smith applied for disability insurance
benefits under Title II and supplemental security income
benefits under Title XVI. T201-02. Both claims were denied
initially and on reconsideration. T1-6. Following a hearing,
the administrative law judge (ALJ) found that Smith was not
disabled as defined under 42 U.S.C. §§ 223(d) or
1614(a)(3)(A), and therefore, not entitled to benefits under
the Social Security Act. T19-21. The Appeals Council of the
Social Security Administration denied Smith's request for
review of the ALJ's decision. T11. Accordingly,
Smith's complaint seeks review of the ALJ's decision
as the final decision of the Commissioner under 42 U.S.C.
§ 405(g). Filing 1.
MEDICAL AND WORK HISTORY
2000 until February 2015, Smith held various administrative
positions with the Federal Reserve and First National Bank.
T52-56; T220. In early 2014, however, Smith began having
issues with her back. So, on March 18, 2014, Smith underwent
lumbar fusion surgery. T40-50; T56-60; T304; T316. Although
this procedure went well, Smith had problems with her
surgical incision healing. In particular, Smith developed a
tissue ulceration and experienced a severe infection around
her incision area. T349; 424. These healing issues required
additional surgeries to sterilize, irrigate, and close
Smith's lumbar incision. T356-57; 360.
early September 2014, Smith appeared to be on the mend: her
surgical incision had finally healed and she was able to
return to work with "minimal
restrictions." See TR 461-62. At this time,
Smith's surgeon, Dr. Ric Jensen, noted that Smith was
"progressing well" and "her pre-operative back
pain has improved significantly . . . ." See
T461. Dr. Jensen also found that Smith had "no focal
radicular leg symptoms" and "[h]er lower extremity
neurological examination is normal at this juncture."
Smith's relief was temporary. A few weeks later, Smith
began experiencing severe pain, numbness, and tingling in her
hand and wrist. T463, 468-70, 585. Smith had previously been
diagnosed with bilateral carpal tunnel, ulnar neuritis, and
De Quervain's syndrome, which each contributed to these
problems. T424-27; 439-40. Then, in late September 2014,
Smith also began complaining of post-surgery back pain. A
follow-up CT scan showed "peripherally calcified soft
tissue protrusion into the central canal at ¶ 5-S1
producing mild central canal narrowing” and [m]ild left
foraminal narrowing" at the L4-L5 and L5-S1 levels, and
an EMG study showed likely "acute on chronic S1
radiculopathy on the left." T405-06; T386.
these problems made it difficult for Smith to sit or stand
for long periods of time. And Smith also noted that it was
not easy for her to type and write for customers, and she
needed more time each day to "lie down because of the
pain." T248; see also T57. Given these health
issues, on February 6, 2015, Smith stopped working and
applied for Social Security benefits. T228.
February 9, 2015, Smith was also diagnosed with fibromyalgia.
See T513-15. At this point, her primary care
physician, Dr. Joseph Shehan, M.D., suspected that Smith
might also have some sort of connective tissue disease,
although that diagnosis was not proven. See T513.
And on April 13, 2015, Smith was evaluated by Dr. Shehan
after she complained of continued "weakness and
numbness" in her lower extremities. T542. At this time,
Dr. Shehan also noted that Smith had experienced
"neuropathy in the past." T542.
the next several months, Smith's leg pain continued.
Specifically, Smith's medical records indicate that she
was experiencing "severe pain involving her right lower
leg to the point where she can barely walk" and her left
knee was buckling frequently. T563. Given her persistent pain
issues, Dr. Shehan, recommended that Smith receive a second
May 2, 2016, Smith was seen by Dr. Harry Klein, M.D., a board
certified rheumatologist. T670. During this visit, Dr. Klein
noted tenderness, swelling, and tender points as a result of
Smith's fibromyalgia in her extremities. T670. Dr. Klein
concluded that he "cannot definitively give a diagnosis
of an autoimmune condition" but opined that Smith
"may have an undifferentiated [connective tissue
disease] that has not differentiated." T672. As a
result, Dr. Klein noted that Smith may require further
Smith's symptoms did not improve. And by March 2017,
Smith had experienced "2-3 weeks of severe numbness in
the lower extremities to the point where she can barely
stand." T701. Because of this numbness, Smith reported
using a walker for ambulation. T701. Smith also noted that
she had "severe pain involving the back shooting
down." T701. So, Smith underwent an EMG, nerve condition
velocity, and an MRI scan. That MRI revealed "mild
dehydration of the T11-12 disc with a small posterior central
disc protrusion" but also revealed "no central
canal or neural foraminal stenosis." T699.
time of the administrative hearing in April 21, 2017, Smith
generally testified consistent with her medical records. T64.
More specifically, Smith said that in the years after her
back surgery, she was forced to recline for four to six hours
a day to "relieve some of the pain from [her] lower
half." T62. Smith also testified that she was only able
to sit or stand for 10 or 15 minutes at a time because her
pain is a "constant eight at all times." T62-64.
Relatedly, Smith said that when she walked her legs would
often go numb causing her to trip and fall or, at the very
least, requiring the use of a walker to ambulate. T61-63. And
not only did Smith have problems with her lower extremities,
she also had difficulties performing tasks with her hands as
a result of the pain and numbness she experienced in her
fingers and wrists. T57, 68.
addition to testimony from Smith, the ALJ heard testimony
from a vocational expert (VE). Specifically, the ALJ
presented the VE, Ms. Dedderman, with a hypothetical
regarding whether an individual who was limited to sedentary
exertion but could perform no more than occasional balancing,
stooping, kneeling, crouching, crawling, or climbing of ramps
and stairs, and could perform more than occasional fingering,
feeling or handling with the right dominant extremity, among
other limitations, could perform any jobs in significant
numbers in the national economy. 81-83. The VE opined that
such a person could get work as a call out operator and
surveillance system monitor. T83.
then asked the VE a second hypothetical: whether in addition
to the limitations in hypothetical one, if an individual
could not stand or sit for more than ten minutes
uninterrupted, could that person still work as a call out
operator or surveillance system monitor? T84. In response to
that additional condition, the VE opined that in her
knowledge, experience, and training in the field of
vocational rehabilitation, such an individual would not be
able to perform any jobs in significant numbers in the
national economy. T83-84.
then posed a third hypothetical: whether an individual with
the same limitations as hypothetical one, but who would also
be absent three or more times a month to manage the
conditions, would be able to gain meaningful employment.
Similar to her response to hypothetical two, the VE opined
that an individual with that additional condition would not
be able to perform any jobs in significant numbers in the
national economy. T83-84.
SEQUENTIAL ANALYSIS AND ALJFINDINGS
alleged that she has been disabled since February 1,
2015--the date she was forced to quit working because of her
pain issues. But the ALJ found that Smith could gain
meaningful employment. To determine whether a claimant is
entitled to disability benefits, the ...