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Smith v. Colvin

United States District Court, N.D. Indiana, South Bend Division

September 21, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          JON E. DEGUILIO, United States District Court Judge.

         This is 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.


         Ms. 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.

         1. Ms. Smith's Testimony[1]

         At the 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. Tr. 47.

         Ms. 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.

         2. Ms. Smith's Husband's Testimony

         Ms. 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.” Tr. 62.

         3. Ms. Smith's Mother's Testimony

         Ms. 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. 65.

         4. Dr. Toth-Russell's Testimony

         Ms. 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.

         5. The Vocational Expert's Testimony

         Vocational 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.

         The ALJ 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.

         Tr. 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.

         Ms. 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.

         6. The ...

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