United States District Court, N.D. Indiana, South Bend Division
DEMETRIA M. SMITH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
DEGUILIO, United States District Court Judge.
a social security appeal. The Claimant, Demetria Smith,
applied for social security disability benefits, but the
Social Security Administration denied her application. So,
she filed this action seeking review of the
Commissioner's decision. The parties have now briefed the
matter and it is ripe for review. [DE 13, 18, 21]. For the
foregoing reasons, the Court REMANDS this matter to the
Commissioner for further proceedings.
Smith filed for social security disability benefits on
October 16, 2012 alleging a disability onset date of December
1, 2009. Tr. 131, 139. Her claim was denied once initially
and again on reconsideration. Tr. 90, 91. At Ms. Smith's
request, Administrative Law Judge Henry Kramzyk (the ALJ)
then held a hearing on October 8, 2013, at which Ms. Smith
appeared pro se. Tr. 37.
Ms. Smith's Testimony
hearing, Ms. Smith testified that she is thirty-four years
old, married and lives with her husband. Tr. 44-45. She is
unemployed and has not worked since 2005. Tr. 48. She holds a
bachelor of science degree and began law school in 2005. Tr.
46-47. She did not finish her first semester of law school,
though, because she experienced a sudden and severe loss of
vision. Tr. 49. That prompted her to consult with several
doctors, resulting in her diagnosis with multiple sclerosis
(MS) in January 2006. Tr. 49. She obtained treatment for MS
through May 2006, though stopped at that time due to the side
effects of the medication she was taking and dissatisfaction
at her relationship with her neurologist. Tr. 57. In lieu of
traditional medical treatment, she turned to prayer,
meditation, diet and supplements as a means of controlling
MS. Tr. 57. During this time she was mostly homebound and did
not do things with family or friends. Tr. 60. She watched TV,
listened to audio books, read, prayed and meditated. Tr. 59.
She and her husband were married in 2008. Tr. 59. Her
condition steadily worsened until October 2012, at which
point she restarted treatment. Tr. 58. She has since regained
some muscle strength. Tr. 58. She is presently either in bed
or a wheelchair at all times. Tr. 59. She cannot write and
can only read a little bit at a time due to vision issues.
Smith also testified that she had held several jobs prior to
the onset of her condition. She worked as a proxy analyst for
four months, eight hours per day in 2005. Tr. 50-51. That
position primarily involved sedentary computer work. Tr. 51.
Prior to that she worked as a research analyst for more than
a year investigating health in adolescent women. Tr. 52. That
job was partially sedentary, but also involved performing
field visits, taking blood samples and carrying approximately
twenty pounds on occasion. Tr. 52, 54. Before that she worked
as an assistant to students with disabilities. In that role,
she worked from 8:00 a.m. to 3:30 p.m., walked from class to
class and sat for the majority of the day; she did not need
to lift anything. Tr. 54-55. Finally, she worked in another
research assistant position, in which she performed
psychological tests on subjects. That work was largely seated
and involved very little lifting or carrying. Tr. 56.
Ms. Smith's Husband's Testimony
Smith's husband, Brian Smith, also testified. He
indicated that from December 2009 to December 2010 he and Ms.
Smith did not do anything social or fun outside of the home,
such as going to the movies, visiting family or friends or
taking a vacation. Tr. 61. He stated that it took so long for
Ms. Smith to seek medical treatment because the couple is
“very private” and had hoped that she would get
better. Tr. 62. As evidence of Ms. Smith's condition, he
noted that the couple had submitted receipts from the
purchase of medical aides and equipment. Tr. 62. The couple
also submitted dental records which reflect an incident in
which Ms. Smith was trying to walk through their apartment
while holding on to furniture to balance and she slipped and
fell face first “shatter[ing] her entire teeth.”
Ms. Smith's Mother's Testimony
Smith's mother, Cynthia Mitchell, also testified. She
said that from December 2009 to December 2010 she did not do
anything social or fun with her daughter. Tr. 64. She did
attend the Smiths' wedding on June 14, 2008, at which
time she noted that Ms. Smith's gait was noticeably
impaired. Tr. 64. After the wedding, Ms. Mitchell asked to
visit the Smiths, but the couple declined her request. Tr.
64. She believed this was because they wanted privacy. Tr.
Dr. Toth-Russell's Testimony
Smith's neurologist, Dr. Paula Toth-Russell, also
testified. She stated that she had reviewed the medical
evidence in the record and opined that Ms. Smith suffers from
MS with multiple symptoms including visual disturbance,
debilitating tremor, gait disturbance with quadriparesis
(muscle weakness affecting all four limbs), significant
spasticities and language impairment. Tr. 66. Upon inquiry
from the ALJ as to Ms. Smith's condition from December
2009 to December 2010, she testified that she could opine as
to Ms. Smith's condition at that time only through her
review of the record and the “known natural history of
the disease proper.” Tr. 67. Based upon that, she
indicated that Ms. Smith “was neurologically disabled
at that time . . . she would [not] have been able to ambulate
effectively [or independently]. Her communication would have
been impaired. She would have been unable to probably sit,
stand, or ambulate” for any amount of time. Tr. 68.
Since the ALJ did not ask Dr. Toth-Russell any other
questions, and the Smiths did not have any questions for her,
she did not testify further.
The Vocational Expert's Testimony
expert Carrie Anderson (the VE) also testified at the
hearing. She indicated that Ms. Smith's prior work
assisting students with disabilities would be classified as
an intervention specialist position under Dictionary of
Occupational Titles (DOT) # 054.107-010, which was a
sedentary position as defined by the DOT and as Ms. Smith
performed it. Tr. 70-71. She further testified that Ms.
Smith's three other prior jobs were research analyst
positions under DOT # 199.267-034. Tr. 72. Those positions
were also sedentary as defined by the DOT, though Ms. Smith
performed one of them (the job described above in which she
collected data on women's health) at a light level of
exertion. Tr. 72.
then provided the VE with a hypothetical. He asked her what
job opportunities would be available for:
[A] hypothetical claimant of the same age, education, and
work experience as the claimant who has the ability to lift,
carry, push, pull, up to 10 pounds occasionally and lesser
weights frequently. Sit for a total of up to six hours a day
and stand and/or walk for a total of two hours a day. This
individual could never climb ladders, ropes, or scaffolds,
could occasionally climb ramps and stairs. Could occasionally
balance, stoop, and crouch, but could never kneel or crawl.
This hypothetical individual would have to avoid moderate
exposure to wetness, including wet slippery, uneven surfaces
and would have to avoid even moderate exposure to hazards
such as dangerous machinery and unprotected heights.
73-74. The VE responded that such an individual could perform
the sedentary work Ms. Smith previously performed, though not
the work that she performed at a light level of exertion. Tr.
74. Further, the VE said that there are other sedentary jobs
such an individual could perform in the national economy
including surveillance monitor (DOT # 379.367-010), order
clerk (DOT # 209.567-014) and toll booth clerk (DOT #
211.462-036). Tr. 74-75. The VE also indicated that a
hypothetical individual with the above-described limitations
could not work in the national economy if she “could
not maintain regular attendance and be punctual within
customary tolerances” and “perform work
activities within a schedule.” Tr. 75. The VE indicated
that her testimony was consistent with the DOT, except for
the information regarding work available for an absent or off
task individual, which came solely from her twelve years of
experience in the field. Tr. 75.
Smith's husband also posed questions to the VE. He asked
whether a toll both clerk would be required to control her
arms in a reasonable manner and see well enough to identify
currency denominations. Tr. 76. The VE responded that those
were essential attributes of a toll booth clerk. Tr. 76. Mr.
Smith replied that Ms. Smith did not possess those
capabilities as of the alleged date of onset. Tr. 76. Mr.
Smith further indicated that Ms. Smith would be unable to
drive to work due to her vision impairment. Tr. 76-77.
Finally, he asked the VE whether all of the jobs the VE
discussed would require the employee to write and do some
degree of computer work. The VE replied that they did. Mr.
Smith then stated that Ms. Smith had been unable to do those
things since 2009 or earlier. Tr. 77.