United States District Court, D. Nebraska
PATRICK T. SMITH, Plaintiff,
ANDREW SAUL,  Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
an action for judicial review of a final decision of the
Commissioner of the Social Security Administration
(“Commissioner”). Patrick Smith appeals a final
determination of the Commissioner which denied his
application for Social Security benefits. This Court has
jurisdiction under 42 U.S.C. § 405(g).
Procedural History and Introductory Information
26, 2015, plaintiff Patrick T. Smith filed an application for
disability benefits. He alleged that he suffered from a
disability that began on October 31, 2013. Filing No. 8-2,
Social Security Transcript (“Tr. 1”) at 13.
Smith's application was denied initially and upon
reconsideration. Filing No. 8-3 at 77, 89. Following a July
21, 2017, hearing, an administrative law judge
(“ALJ”) denied benefits. Filing No. 8-2 at 22,
28-67. On August 15, 2018, the Appeals Council denied review,
and the ALJ's decision stands as the final decision of
the Commissioner. Id. at 1-6. Smith seeks review of
the ALJ's order denying benefits. Filing No. 1, Complaint
Smith is now fifty-three years old. Filing No. 8-6 at 184. He
has previous relevant work experience as a fraud agent,
expense clerk, and document preparer. Filing No. 8-2 at
Smith has at least a high school education and can
communicate in English. Id. at 21. His most recent
full-time employment position was as a merchant fraud agent
at PayPal Inc. (“PayPal”), which culminated in
October of 2013. Filing Nos. 8-3 and 8-5 at 88, 187,
At the time of Smith's application for benefits, he
contended that he was unable to work because of scoliosis,
back problems, neurofibromatosis, deteriorated vertebrae,
headaches, weakness in both knees, and status post ten back
surgeries. Filing No. 8-3 at 68-69.
Claimant's Relevant Testimony at the ALJ Hearing
testified that he was born on March 28, 1966 and was
fifty-one years old at the time of the hearing. Filing No.
8-2 at 34. He provided his residential address and stated
that it was a house with a main floor, an upstairs, and a
basement. Id. at 34-35. The ALJ inquired as to
whether Smith's back condition caused difficulty
navigating between the floors of his home, and Smith
responded that he just moved into his home and that he walked
a great deal the day prior as he directed movers where to put
items, which “[gave him] some difficulty
yesterday.” Id. at 35. The ALJ asked Smith if
he considered, preceding the move, the difficulties that
accompanied life in a three-level home. Id. Smith
answered that his old home had three floors as well, and that
he spent the majority of his time on the main level.
Id. As such, Smith stated that he did not consider
the difficulties his new residence presented, and that he
planned to maintain his presence, for the most part, on one
of the three floors of the new home. Id.
affirmed that he lived with his wife and the couple's two
young daughters, aged ten and twelve. Id. He
confirmed that he drove himself to the hearing, and that he
possessed a valid driver's license with no restrictions.
Id. at 35-36. Smith testified that he drove his
daughters to and from school during the academic year and
that he drove to church services on occasion. Id. at
36. The ALJ asked Smith if he shopped, or went to the grocery
store, or ran errands, and Smith responded that his daughters
helped him when he went to the grocery store (they placed
items in the cart and transported things from the car into
the house). Id.
asked Smith whether he used alcohol or street drugs, and
Smith estimated that he had not consumed any alcohol for
three or four months because of medication. Id. He
stated that he had “maybe one beer four months ago,
three and a half months ago, ” and testified that, even
when he was not on medication, he seldom consumed alcohol.
stated that he was right-handed and affirmed that he
underwent a trigger release surgery in April [of 2017] on his
right middle finger. Id. at 36-37. Smith declared
that he “still [had] problems with [his right middle
finger], to [that] date.” Id. at 37. The ALJ
asked Smith about his prognosis after the surgery, and Smith
replied that he recently saw Dr. Thompson, the physician who
performed the trigger release surgery, and that Dr. Thompson
provided an injection. Id. Smith further testified
that his hand remained sore at the time of the hearing, and
that he tried to remedy the pain via ligament stretches, as
he did not want to have another injection. Id. He
affirmed that the ligament stretches he performed were not
part of physical therapy and that they were hand motions and
exercises that Dr. Thompson showed him how to do.
Id. The ALJ questioned Smith regarding the frequency
of the hand stretches, and Smith stated that he conducted the
exercises as needed when his hand bothered him, which as of
late was once per day, in the morning. Id.
acknowledged that his alleged onset date was October 31,
2013, the date of his surgery, and that he had not worked
since that date. Id. at 37-38. He testified that he
worked as a fraud agent at PayPal from December 7, 2007,
until two days preceding the October 31, 2013, surgery (i.e.,
October 29, 2013), and that he never returned to work
subsequent the surgery. Id. at 38. Smith further
testified that PayPal held his position open for six months,
after which timeframe the Human Resources department said
that his job was in the process of termination, but that he
was eligible for rehire. Id. Smith stated that he
was on short-term disability with PayPal because he thought
that he would return to work within three months of the
surgery, but he was unable. Id. Smith stated that he
worked as an account clerk with Woodman Life Insurance from
May of 1991 until January of 2004, and that he quit because
he did not receive the raises he felt he deserved.
Id. at 39. After Woodman Life Insurance, Smith
testified that he worked for Celebrity Staffing, a temp
agency. Id. Celebrity Staffing placed him at Aria
Staffing, where he recorded and copied documents for eight
hours per day for approximately two months. Id.
Smith was then placed at Galva, where he worked in the
mailroom for an unspecified duration, after which he was a
stay-at-home dad. Id.
testified that he neither worked nor applied for work since
2013. Id. at 39-40. He insisted that this was due to
his inability to sit for long periods of time. Id.
at 40. Smith stated that his only source of income was from
the sale of items on eBay, but that such sales “[did
not] pay the bills [and were] just more of a hobby.”
Id. At the time of the hearing, Smith's wife was
his sole financial support. Id.
noted that, since the October 31, 2013 surgery, Smith had
MRIs and x-rays, and that such procedures indicated that the
progression of Smith's healing “seemed to be going
well, ” yet the record indicated continual pain.
Id. As such, the ALJ asked Smith to describe his
experiences of pain. Id. Smith testified that he had
nerve pain in two different spots within his back.
Id. He had three injections at the Nebraska Spine
Center in the lower right corner of his back, above his
waist, and those provided minimal relief for approximately
one month. Id. Smith further testified that he took
three medications for pain relief, and that he was on those
medications for the preceding three and a half years.
Id. at 41. He stated that he was on numerous
medications following the October 31, 2013, surgery, and that
he still experienced back pain as of the hearing date.
Id. Smith testified that the pain never migrated or
progressed, and that it had always remained in the same
location since the surgery. Id.
stated that he sought physical therapy and aqua therapy
treatments in 2015, 2016, and 2017, but those treatments
provided “no end to the discomfort and the pain”
that he continued to experience in the lower right corner of
his back. Id. The ALJ asked Smith to confirm that
the treatments did not provide “any . . . benefit at
all, ” and Smith responded: “None.”
then described the condition of his lower left back.
Id. at 41-43. He testified that he had surgery on
July 1, 2017, as a result of a neurofibroma physical therapy
exercise in his lower left back. Id. at 41-42. Smith
stated that he performed a physical therapy exercise in which
he rolled over and stretched his right arm to his back.
Id. at 42. He testified that this exercise ruptured
a blood vessel, which consequently created a large hematoma,
which resulted in emergency surgery. Id. at 42. He
stated that the July 1, 2017, surgery closed the vessel that
caused internal bleeding and removed “all the
fluid” referenced in the attorney's opening
statement. Id. Smith maintained that he had a drain
tube removed on July 19, 2017, which was the Wednesday prior
the hearing. Id. at 42. The ALJ questioned Smith
regarding the prognosis of the hematoma surgery, and Smith
said that he remained sore and that he needed “to take
it easy and not do a whole lot, for the fear of maybe
rupturing that vessel again.” Id. at 43.
testified that the hematoma surgery and resulting pain were
“a side issue from the nerve pain.” Id.
Regarding management of the persistent nerve pain in his
lower right back, Smith stated that, as of the hearing date,
he had not received “any answers as to the best
recommended approach.” Id. Smith also
acknowledged pain in the middle of his left back but stated
that such pain was “not as consistent as the pain on
the lower right.” Id.
asked whether the nerve pain came and went or was constant.
Id. In response, Smith testified:
Depending upon how long I sit in chairs or my movements - you
know, if I - I tried to do some yardwork this spring, and I
couldn't even - was not able to move - or, excuse me, not
able to mow our front yard because of the nerve pain. So,
I'm not even able to mow due to that, and I can't sit
Id. at 43-44. Smith further testified that, after
the 2013 surgery, he did not attempt yard work until 2016.
Id. at 44. The pain in 2017, however, was
“much more intense.” Id. Smith described
a recent incident wherein he started to mow but intense pain
caused him to stop; his wife had to take over and complete
the task. Id. Smith stated that he had not attempted
to mow since early spring of 2017. Id.
explained that the nerve pain in his back, not the
neurofibromatosis, prevented him from sitting or standing for
long periods of time. Id. The neurofibromatosis,
Smith testified, caused “a different type of
discomfort” in addition to the back pain he
experienced. Id. He stated that neurofibromatosis
resulted in a recent facial surgery on the left side of his
nose and in between his eyes. Id. Smith specified
that if neurofibromatosis “hit in a certain way,
” then blood vessels would rupture, so he needed
surgery because he was at risk for a potential blood vessel
rupture, which could result in loss of sight in his left eye.
Id. at 45. The ALJ asked if the neurofibromatosis
surgery was successful, and Smith replied:
[The doctors were only able to] resect so much at a time. My
understanding is there is a major blood vessel near that left
eye, and if they go in there and try to remove too much, it -
it's in additional danger of excess bleeding . . . it
could possibly return. On my left side, here, I have a bulge,
and this is the denervation injury . . . with
neurofibromatosis, there's excess nerves with these
growths, and at one point where I had a back surgery, some of
those nerves were severed.
Id. at 45. Smith further testified that he visited
Dr. McNamara regarding the possibility that this condition
could be fixed or repaired, or maybe have the muscle removed,
but that there was “nothing that [could] possibly be
done to repair those nerves or repair that damage that was
asked if neurofibromatosis caused Smith any limitations; he
inquired whether, besides the bulge on Smith's side,
neurofibromatosis impacted him at all. Id. at 46.
Smith stated that his only choices were limited to sitting at
a desk. Id. He testified that he was unable to
perform any sort of construction work or anything that could
possibly further damage the afflicted area of his body.
Id. Smith affirmed that he could not do anything
active or that included heavy lifting-anything that could
cause a rupture or contribute to his
“all-encompassing” back problems. Id. He
testified that he could not lift more than fifteen to twenty
pounds and that he could not perform a job that required him
to sit at a desk for eight hours per day. Id. at 47.
asked Smith to explain why he would be precluded from such a
workday, and Smith replied that he could not sit at a desk
for eight hours because of the nerve pain that he experienced
since the October 31, 2013, back surgery. Id. The
ALJ reiterated his question; he asked Smith to describe some
of the impact of the nerve pain and why it would prevent him
from work at an eight-hour job. Id. Smith stated
that the longer he sat, the more intense the nerve pain
became. Id. He further testified that pain
medication was largely ineffective and did little to
alleviate the intense pain. Id. In response to the
ALJ's contention that perhaps Smith had prescriptions for
pain medications that he did not take, Smith declared that
past prescriptions for hydrocodone did little to remedy pain,
and while he was on Lyrica, it too had only minimal effect.
Id. The ALJ asked Smith to elaborate upon the term
“minimal effect, ” so Smith stated that Lyrica
provided approximately four to five hours of relief.
Id. Lyrica was one of the medications Smith took to
help him sleep, but the pain at night still kept him from
attaining a restful night of sleep. Id.
testified that he experienced symptoms of fatigue throughout
the day. Id. at 48. He estimated that he napped four
to five times per week, for anywhere from forty-five minutes
to a couple of hours. Id. The ALJ asked Smith to
discuss how prolonged sitting made the pain more intense.
Id. Smith said that sometimes after only an hour of
sitting he had “to go lay down or go to bed and just
try and rest in bed.” Id. He further testified
that his pain level depended upon how active he was, and that
his pain was aggravated when he ran errands with his
daughters or took them to school. Id. at 49. Smith
estimated that he could drive or sit in a car for
two-and-a-half hours, and that during that period he would
stop and get out of the car to move around, stretch his legs.
stated that he received no assistance with his personal
care-he groomed, bathed, and shaved himself independently.
Id. In terms of household chores, Smith testified
that he did dishes, but that his wife and daughters vacuumed.
Id. at 49-50. He stated that majority of his days
were spent watching television, and that he spent about ten
minutes per day on the computer. Id. at 48, 50.
Smith testified that he read books on occasion. Id.
attorney then questioned him. Id. at 48-55. Smith
testified that he took two-and-a-half-hour car trips roughly
twice per year, and that he got out of the car to move around
at least once during a trip of such a duration. Id.
at 50. Typically, when he arrived at his destination, Smith
stated that he sat down and relaxed because sitting in the
car for that long bothered his back. Id. at 51.
acknowledged that his daily prolonged sitting was on a
comfortable couch, and that he could continuously sit in an
office chair for no more than an hour. Id. He
testified that he did not believe he could “alternate
positions all day long” because prolonged sitting or
standing irritated his nerves. Id. Smith stated that
when he got up and stood at his house, he moved around - for
example, he got a drink or went to the bathroom. Id.
He got up and moved around for no more than five to ten
minutes, at which point he needed to either sit back down or
take a nap. Id. at 51-52. Smith testified that he
took naps because his persistent nerve pain felt better when
he laid down, but also because he did not sleep restfully at
night and was consequently tired most days. Id. at
testified that sitting for too long negatively impacted his
concentration and attention, but that he felt better after he
took a nap. Id. at 52-53. Smith affirmed that Dr.
Woodward, his surgeon for the 2013 back surgery, recommended
that he contact Social Security. Id. at 53. The
attorney asked Smith if he had a bone stimulator, and Smith
responded that he had a bone neurostimulator. Id.
Smith described the neurostimulator:
It's a device - it kind of has a ring in the front, and
one - a ring in the back, and it Velcros, and it runs on an
electric charge. There's an internal battery, and it -
well - and what I believe it - with - from what I remember,
what I was told, it sends electrical impulses from back to
front to help promote bone growth.
Id. The attorney asked if Smith used the bone growth
stimulator beginning in May of 2015, and Smith replied that
he could not recall the specific dates when he used the
device. Id. Smith testified that he used the bone
stimulator twice per day, for sixty minutes each time, for
about five months. Id. at 54.
further testified that the severity of his pain depended on
the type of chair, and that he was limited to sitting for
fifteen to twenty minutes if it was a hard surface chair.
Id. Smith remarked that such chairs caused
discomfort, and that standing (for example, earlier during
the hearing) alleviated some of the discomfort that resulted
from sitting continuously. Id. He stated that he
thought standing relieved the discomfort because it took away
some of the pressure from his back. Id. Smith
reaffirmed that he could sit in a chair such as the one he
sat in at the hearing for no more than twenty to twenty-five
minutes because sitting irritated the nerves in his back.
Id. He confirmed that he could sit on a couch at
home for an hour, but that he could sit in the chair at the
hearing for no more than twenty minutes. Id. at 55.
Smith declared that when he worked at PayPal, he had an
“office chair on wheels, with the approximate thickness
of padding.” Id.
Claimant's Relevant Medical History
21, 2013, Smith presented at Nebraska Spine Center, LLP,
where Dr. H.R. Woodward, MD, evaluated him for lower back
pain and pain between his shoulder blades. Filing No. 8-9 at
307. The medical record reflects Smith was a 47-year-old
male, post Harrington rod procedure (T8-L4) and post multiple
surgeries for neurofibromas. The structural diagnosis
additionally included degenerative disc disease L4-S1,
advanced dural ectasia T8-L4, history of L5-S1 disc
protrusion, status post recent fibroma excision left flank
and saggital coronal imbalance. Id. at 310. Dr.
Woodward noted that Smith's pain was a burning, dull,
aching, sharp, pins and needles sensation was relieved by
lying down, and worsened with sitting, walking, or prolonged
positions. Id. at 307. Dr. Woodward stated that
Smith could not stand or walk for more than fifteen minutes
before he had to stop, and that he could not participate in
activities (e.g., mowing the lawn) for more than fifteen
minutes before pain forced him to stop and rest. Id.
Dr. Woodward further declared that Smith had mild pain along
his left lateral thigh, and he noted that Smith expressed
concern that he leaned forward more than normal. Id.
Additionally, Dr. Woodward stated that Smith visited the
Nebraska Spine Center approximately two years prior to the
May 21, 2013, appointment, and received prescriptions for
Medrol Dosepak and Indomethacin, but these medications caused
gastrointestinal problems. Id.
Woodward stated that Smith “continue[d] to have the
same basic problems he has had previously with advanced
neurofibromatosis and dural ectasia along the fused levels
with a flat spine along the fusion area, along with
symptomatic degeneration of the lumbosacral spine resulting
in coronal and sagittal imbalance.” Filing No. 8-9 at
310. Dr. Woodward thought that treatment “would be
relatively straight-forward with an anterior and posterior
extension of the fusion to the sacrum with rebalancing the
spine, ” but that such a procedure would be
“significantly complicated” for Smith because he
had extensive dural ectasia and neurofibromatosis.
Id. at 311. Dr. Woodward noted that “bleeding
would be significantly increased with this procedure and
fixation in the spine above L4 would be very tenuous, ”
and that since the fusion was limited, “any change in
this may cause severe complications if the fusion [was]
11, 2013, Smith returned to Dr. Woodward to follow-up
regarding an MRI of his lumbar spine. Id. at 312.
Smith described lower back pain and pain in his “left
lower extremity, distally to the knee.” Id.
Smith characterized both his back and leg pain severity as a
three out of ten, and described the pain as dull, aching, and
burning with a sharp shooting sensation. Id. Smith
stated that nothing improved the pain, that it worsened when
he laid on a hard surface, and he complained of slight
dizziness. Id. Dr. Woodward noted that the MRI
revealed “degenerative changes present at ¶ 5-SI
with moderate bilateral foraminal stenosis noted and right
sided disc protrusion.” Id. at 315. Dr.
Woodward prescribed Flexeril, a muscle relaxant, to be taken
at nighttime. Id.
together with his wife, saw Dr. Woodward again on September
3, 2013, to discuss surgical options. Id. at 316.
Smith complained of pain in his lower back “with
numbness into the left lower extremity distally to the foot
and toes.” Id. Dr. Woodward noted that Smith
had a “jumper's stance” and accompanying
discomfort in his upper thoracic spine. Id. Smith
described his pain as dull, aching, tingling, and rated the
pain severity at a four out of ten. Id. Dr. Woodward
further noted that Smith's pain worsened with prolonged
walking or standing and resting brought only mild relief.
Id. As of this visit, Smith was prescribed
Cyclobenzaprine HCl, up to 15 mg daily, and Indomethacin ER
75 mg daily. Id. Dr. Woodard ordered radiographs of
Smith's entire spine, and thereafter provided the
There is a Harrington distraction rod from T8 through L4 with
good bone graft noted in the concavity of the thoracolumbar
curve. There is a residual right thoracic scoliosis 24
degrees and left thoracolumbar scoliosis 32 degrees with a
small fractional lumbosacral curve. The left lower extremity
is 6 mm short and the left shoulder is elevated 2 cm.
Radiographic plumb line falls 8 cm to the right. The lateral
view shows the area along the Harrington rod is flat with an
increased thoracic kyphosis just above the fusion level and
overall there is a long thoracolumbar kyphosis 33 degrees and
a short lumbar lordosis 29 degrees. There is severe loss of
disc space height at ¶ 5-S1 and he is 8 cm out of
Id. at 318. Dr. Woodward reviewed the x-rays with
the Smiths and proposed an anterior and posterior spinal
fusion surgery, a detailed procedure he discussed with the
couple, who ...