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Smith v. Saul

United States District Court, D. Nebraska

August 30, 2019

PATRICK T. SMITH, Plaintiff,
ANDREW SAUL, [1] Commissioner of Social Security; Defendant.



         This is 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).

         I. BACKGROUND

         A. Procedural History and Introductory Information

         On June 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 at 1.

         Patrick 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 20.[2] Smith has at least a high school education and can communicate in English. Id. at 21.[3] 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, 195.[4] 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.

         B. Claimant's Relevant Testimony at the ALJ Hearing

         Smith 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.

         Smith 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.

         The ALJ 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. Id.

         Smith 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.

         Smith 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.

         Smith 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.

         The ALJ 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.

         Smith 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.” Id.

         Smith 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.

         Smith 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.

         The ALJ 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.

         Smith 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 done.” Id.

         The ALJ 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.

         The ALJ 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.

         Smith 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. Id.

         Smith 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.

         Smith's 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.

         Smith 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 52.[5]

         Smith 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.

         Smith 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.

         C. Claimant's Relevant Medical History

         On May 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.

         Dr. 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.”[6] 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] disrupted.” Id.

         On June 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.

         Smith, 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 following observation:

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 balance anteriorly.

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 ...

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