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Smith v. Saul

United States District Court, D. Nebraska

July 5, 2019

ERICA M. SMITH, Plaintiff,
ANDREW M. SAUL, [1] Commissioner of the Social Security Administration, Defendant.


          John M. Gerrard Chief United States District Judge.

         Erica 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.


         In 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.



         From 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.

         But by 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."[2] 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." T461.

         Unfortunately, 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.

         Together, 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.

         On 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.

         Over 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 opinion. T579.

         So, on 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 monitoring. T672.

         But 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.


         At the 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.

         In 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.

         The ALJ 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.

         The ALJ 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.


         Smith 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 ...

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