Caldwell v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 6, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CYNTHIA ELA CALDWELL
vs.

PLAINTIFF
Civil No. 2:10-cv-02140

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Cynthia Ela Caldwell (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the
Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final
decision of the Commissioner of the Social Security Administration (“SSA”) denying her application
for Disability Insurance Benefits (“DIB”) and a period of disability under Title II the Act. The parties
have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 6.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
1.

Background:
Plaintiff protectively filed her DIB application on March 19, 2007. (Tr. 43, 79-86). In her

application, Plaintiff alleged she was disabled due to carpal tunnel syndrome, osteoarthritis, and
tendonitis. (Tr. 97). Plaintiff alleged an onset date of November 15, 2006. (Tr. 43, 97). This
application was denied initially and again on reconsideration. (Tr. 38-39). Thereafter, Plaintiff
requested an administrative hearing on her application, and this hearing request was granted. (Tr. 60-

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The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”

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61). An administrative hearing was held on August 19, 2008 in Clarksville, Arkansas. (Tr. 12-37).
Plaintiff was present and was represented by counsel, Iva Gibbons, at this hearing. Id. Plaintiff and
Vocational Expert (“VE”) John Massey testified at this hearing. Id.
On January 9, 2009, the ALJ entered an unfavorable decision on Plaintiff’s DIB application.
(Tr. 43-50). In this decision, the ALJ determined Plaintiff met the insured status requirements of the
Act through December 31, 2010. (Tr. 45, Finding 1). The ALJ determined Plaintiff had not engaged
in Substantial Gainful Activity (“SGA”) since November 15, 2006, her alleged onset date. (Tr. 45,
Finding 2). The ALJ determined Plaintiff had the following severe impairments: carpal tunnel
syndrome/tendonitis and osteoarthritis/degenerative joint disease of the knees. (Tr. 45, Finding 3).
The ALJ also determined none of Plaintiff’s impairments, singularly or in combination, met the
Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 46,
Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 46-48, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and determined they
were not credible to the extent she alleged disabling limitations. Id. Second, the ALJ determined
Plaintiff retained the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except the claimant can occasionally climb and frequently balance, stoop,
kneel, crouch and crawl, as well as handle and finger. The claimant can also perform
unskilled work.
Id. “Light work” includes the following:
[L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is
in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing or pulling of arm or leg controls.
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To be considered capable of performing a full or wide range of light work, you must
have the ability to do substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit of long
periods of time.
20 C.F.R. § 404.1567(b).
In this opinion, the ALJ evaluated Plaintiff’s age and education. (Tr. 48-49, Findings 7-8).
The ALJ determined Plaintiff was fifty-two (52) years old and was categorized as a “person closely
approaching advanced age” under 20 C.F.R. § 404.1563(d) on her alleged disability onset date. (Tr.
48, Finding 7). The ALJ also determined Plaintiff had “at least a high school education” and was able
to communicate in English. (Tr. 49, Finding 8).
The ALJ evaluated Plaintiff’s PRW and determined her PRW included work as a painting
contractor’s helper (medium, semi-skilled). (Tr. 48, Finding 6). Based upon her RFC, the ALJ
determined Plaintiff was unable to perform this PRW. Id. The ALJ did, however, find Plaintiff
retained the ability to perform other work existing in significant numbers in the national economy.
(Tr. 49-50, Finding 10). The ALJ based this finding upon the testimony of the VE. Id. Specifically,
the VE testified in response to a hypothetical question from the ALJ that an individual with Plaintiff’s
limitations retained the ability to perform other work such as a fast food worker (with 19,000 such
jobs in the regional economy and 2,600,000 in the national), production worker in assembly (with
7,000 such jobs in the regional economy and 505,000 in the national), and cleaner or maid (with 900
such jobs in the regional and 100,000 in the national). Based upon this testimony, the ALJ then
determined Plaintiff had not been under a disability, as defined by the Act, from November 15, 2006
through the date of his decision or through January 9, 2009. (Tr. 50, Finding 11).
Subsequent to the ALJ’s decision, on January 15, 2009, Plaintiff requested that the Appeals

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Council review the ALJ’s unfavorable decision. (Tr. 9). See 20 C.F.R. § 404.968. On July 27, 2010,
the Appeals Council declined to review this unfavorable decision. (Tr. 1-3). On September 16, 2010,
Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court
on November 9, 2010. ECF No. 6. Both Parties have filed appeal briefs. ECF Nos. 8-9. This case
is now ready for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
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“physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)©. A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3.

Discussion:
In her appeal brief, Plaintiff claims the ALJ’s unfavorable disability determination is not

supported by substantial evidence in the record. ECF No. 8. Specifically, Plaintiff claims the
following: (1) the ALJ failed to properly develop the evidence in the record; (2) the ALJ failed to
consider evidence which fairly detracted from his findings; (3) the ALJ failed to apply the proper legal
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standards when evaluating her subjective complaints, the weight of her physician’s opinions, and her
RFC; and (4) the ALJ failed to satisfy his burden of proof at Step Five of the sequential evaluation
process. ECF No. 8 at 1-20. Because this Court finds the ALJ improperly assessed Plaintiff’s RFC,
this Court will only address her third argument for reversal.
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should also consider “‘all the
evidence in the record’ in determining the RFC, including ‘the medical records, observations of
treating physicians and others, and an individual’s own description of his limitations.’” Stormo v.
Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir.
2002)). The plaintiff has the burden of producing documents to support his or her claimed RFC. See
Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring that there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports its RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001).

Furthermore, this Court is required to affirm the ALJ’s RFC determination if that

determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
In the present action, the ALJ found Plaintiff retained the capacity to perform light work with
only the following restrictions: “[Plaintiff can only] occasionally climb and frequently balance stoop,
kneel, crouch and crawl, as well as handle and finger.” (Tr. 46, Finding 5). Notably, the ALJ did not
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find Plaintiff had any restrictions due to her carpal tunnel syndrome. Id. The ALJ made this
determination despite the fact Plaintiff had previously undergone surgery in January of 2005 for her
carpal tunnel syndrome (Tr. 164), and her medical records demonstrated she continued to suffer from
limitations even after that surgery.
For instance, on February 16, 2007, Plaintiff reported pain due to her carpal tunnel syndrome
and reported having problems “dropping things.” (Tr. 158). Indeed, the ALJ even noted this finding
in his opinion: “the claimant’s carpal tunnel syndrome (found in February 2007 to be only related to
dropping of items, with no findings of numbness/tingling).” (Tr. 48) (emphasis added).
Further, on October 8, 2007, Plaintiff was evaluated by Dr. Ted Honghiran, M.D., F.A.C.S.
as a part of consultative examination. (Tr. 234-235). During this evaluation, Dr. Honghiran found
the following: “[s]he should be able to do some office work that she used to do, but she may have
some difficulty in typing and operating a computer because of her carpal tunnel syndrome.” (Tr. 235).
The ALJ also noted Dr. Honghiran’s findings in his opinion: “she would likely have difficulty
working on a computer as a result of some hand weakness.” (Tr. 48).
Defendant claims the ALJ included these limitations in the hypothetical he provided to the
VE. ECF No. 9 at 12-13. Defendant argues, “It is important to note that, although Dr. Honghiran
opined that Plaintiff would have some difficulty typing and operating a computer because of the CTS,
the jobs that the VE identified, fast food worker, assembly production, and housekeeper/maid, do not
involve the use of a computer.” Id. However, even though the ALJ noted Plaintiff’s limitations due
to her carpal tunnel syndrome in his opinion, the ALJ did not include in his RFC assessment that
Plaintiff would have difficulty working on a computer due to her hand weakness or may have related

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limitations.2 (Tr. 46-48, Finding 5).
Further, his hypothetical to the VE included no such limitation or any indication Plaintiff
would have problems with fine manipulation of objects:
Q:

Okay. Okay. Thank you. Let me give you my first hypothetical. Please
assume an individual who is closely approaching advanced age with a high
school education who can lift and carry 20 pounds occasionally and ten
pounds frequently. And individual can sit for a total of six hours during an
eight hour work day, stand and walk for a total of six hours during an eight
hour work day. Individual can occasionally climb and frequently balance,
stoop, kneel, crouch and crawl. Individual can frequently handle and finger,
individual can perform unskilled work. Do you understand the hypo as it’s
posed?

A:

Yes, sir, I do.

Q:

I’m assuming the hypothetical precludes the Claimant’s past relevant work
based upon the fact it’s unskilled as light.

A:

Well the other–I had her classified as medium.

Q:

Right.

A:

Okay.

Q:

So that would preclude her past relevant work?

A;

It would preclude her work, but the hypothetical you have given would be fore
[for] a light unskilled person.

Q:

Correct.

A:

Yes.

Q:

Okay. Are there jobs in the national economy that this individual could
perform?

A:

Based on the hypothetical you have presented for a light, unskilled worker,
there are a number of light, unskilled jobs in the national and state economy.

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Presumably, if Plaintiff were unable to use a computer, she would also have a certain level of limitation in
fine dexterity.

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And I will give you a sampling of some jobs that would be available . . . .
(Tr. 33-34).
Indeed, because the ALJ did not consider those limitations due to Plaintiff’s carpal tunnel
syndrome, it appears Defendant is merely surmising that the jobs identified–fast food worker,
assembly production, and housekeeper–do not involve the use of a computer or do not involve the
fine manipulation skills that would be required to use a computer. Accordingly, because the ALJ did
not include any limitations due to Plaintiff’s carpal tunnel syndrome in his RFC evaluation or in his
hypothetical to the VE, this Court is unable to determine whether the jobs identified would be
precluded if Plaintiff were unable to use a computer or unable to perform the same fine manipulation
required to use a computer. Accordingly, this Court finds the ALJ’s RFC assessment and disability
determination are not supported by substantial evidence in the record and must be reversed and
remanded.
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 6th day of October, 2011.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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