Ferro v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 3, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DENISE L. FERRO
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). In this judicial
review, the court must determine whether there is substantial evidence in the administrative
record to support the Commissioner’s decision. See 42 U.S.C. § 405(g).
The plaintiff filed her applications for DIB and SSI on June 12, 2007 (T. 112), alleging an
onset date of May 30, 2007 (T. 140), due to plaintiff’s . Plaintiff’s applications were denied
initially and on reconsideration. Plaintiff then requested an administrative hearing, which was
held on Kienbocks disease and proximal row carpendectomy (Id.). Plaintiff was present and
represented by counsel.
At the time of the administrative hearing, plaintiff was 44 years of age and possessed a
11th grade education. The Plaintiff had past relevant work (“PRW”) experience as a manicurist
On April 22, 2009, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s Keinbock's disease did not meet or equal any Appendix 1 listing. T. 64. The
ALJ found that plaintiff maintained the residual functional capacity (“RFC”) to perform light
work. T. 65. With the assistance of a vocational expert, the ALJ then determined Plaintiff could
not return to her past work but could perform the duties of Surveillance System Monitor and
Crossing Guard. T. 68.
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A).
The Act defines “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)(c). A plaintiff
must show that his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003).
Only if the final stage is reached does the fact finder consider the plaintiff’s age, education, and
work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
The ALJ determined that the Plaintiff had the residual functional capacity to perform light
work as defined in 20 C.F.R. 404.1567(b) except the claimant can lift and carry 20 pounds
occasionally and 10 pounds frequently, sit for about 6 hours during an 8 hour workday, and stand
and walk for about 6 hours in an 8 hour workday. The claimant can frequently balance, stoop,
kneel, crouch, and crawl; can occasionally climb, and can occasionally handle and finger with her
dominant right hand and use right (dominant) hand controls." T. 65.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed using all
relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the
assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the Eighth
Circuit has held that a “claimant’s residual functional capacity is a medical question.” Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a
claimant’s RFC must be supported by medical evidence that addresses the claimant’s ability to
function in the workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
1. Subjective Complaints:
There is no Function or Pain Report in the record (T. 220) but the Plaintiff basically
testified that she could not do anything as a result of her injury to her right hand. (T. 15, 36, 3839).
The ALJ stated that "After careful consideration of the evidence, the undersigned finds
that the claimant's medically determinable impairments could reasonably be expected to cause
the alleged pain, stiffness, numbness, weak grip, and lack of flexibility in her dominant right
hand. However, the claimant's statements concerning the intensity, persistence and limiting
affects of these symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment." T. 65. "The claimant's statements and testimony were
heard and considered consistent with SSR 96-7p and are concluded to be inconsistent with the
evidence of record and not entirely credible." T. 66.
“If an ALJ explicitly discredits the claimant's testimony and gives good reason for doing
so, we will normally defer to the ALJ's credibility determination.” Gregg v. Barnhart, 354 F.3d
at 714 (Iowa, 2003); Human v. Barnhart, 2006 WL 2422182, 3 (D.Kan.) (D.Kan.,2006)
The ALJ must consider several factors when evaluating a claimant's subjective
complaints of pain, including claimant's prior work record, observations by third parties, and
observations of treating and examining physicians relating to 1) the claimant's daily activities; 2)
the duration, frequency, and intensity of pain; 3) precipitating and aggravating factors; 4) dosage,
effectiveness and side effects of medication; and 5) functional restrictions. Casey, 503 F.3d at
695 (8th Cir.2007) (citing Polaski v. Heckler, 729 F.2d 1320, 1322 (8th Cir.1984). The ALJ may
discount subjective complaints when they are inconsistent with the evidence as a whole. Id.
(citing Polaski, 739 F.2d at 1322). “The ALJ is not required to discuss each Polaski factor as long
as the analytical framework is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781,
783 (8th Cir.2004).
It appears the Plaintiff fell and broke her right wrist in November 2005. T. 207. The wrist
did not heal properly and she developed Keinbock disease 1 with avascular necrosis. T. 185, 202.
On July 24, 2006 a open proximal row carpectomy 2 was performed by Dr. Weiss T. 186-187
which “went very nicely” (T. 176).
On August 21, 2006 pain levels were substantially
decreased (T. 183) and Therapeutic Exercises were prescribed (T. 184). In November 2006 Dr.
Weiss did prescribe Vicodin #30 for pain but informed her that he would not prescribe any
further pain medication. (T. 171).
In March 2007 the Plaintiff stated to Dr. Ross that she had developed “severe
osteoporosis” (T. 190). A bone density test was done March 26, 2007 which tested above the
osteopenia threshold level. (T. 192). The Plaintiff was seen by Dr. Bindra, her treating physician,
on June 4, 2007 and his physical examination noted that her range of motion “shows normal
flexion of 30 degrees, dorsiflexion of 50 degrees, radial elevation of 20 degrees and ulnar
deviation of 35 degrees”. He also noted that her fingers were “neurovascularly intact” (T. 207).
He recommended an MRI arthrogram (T. 208) which was performed on June 22, 2007. That test
showed no apparent tendinopathy or tendinosis, no bone edema and no soft tissue fluid
Kienbock’s disease involves the progressive collapse of one of the small bones in the wrist. Kienbock's
disease occurs when the blood supply to this bone is compromised. See www.mayoclinic.com.
Proximal row carpectomy. If the lunate is severely collapsed or broken into pieces, it can be removed. In
this procedure, the two bones on either side of the lunate are also removed. This procedure, called a proximal row
carpectomy, will relieve pain while maintaining partial wrist motion.
collections (T. 193). Dr. Bindra saw the Plaintiff again on July 17, 2007 and noted that the MRI
showed the Plaintiff had good cartilage on the proximal pole of the capitate and, overall, her
carpal ailment appears to be satisfactory. The physical exam showed no sign of tendinitis with a
wrist range of motion of 45 degrees dorsal flexion but no palmar flexion.
The standard of evaluation is not whether plaintiff experiences pain, but if the pain
alleged is intense enough to cause functional limitations. Gowell v. Apfel, 242 F.3d 793, 796 (8th
Cir. 2001) (holding that the real issue is not whether the plaintiff is experiencing pain, but how
severe and whether it prevents him from performing any kind of work). The court finds that the
Plaintiff’s allegations that she could not function at all was not credible and the ALJ correctly
discounted her testimony.
2. RFC Assessment
The RFC is determined at step four, where the burden of proof rests with the claimant.
See 20 C.F.R. §§ 404.1520(a),(e),(f); 404.1545–46; 404.1560–61; Bowen, 482 U.S. at 146 n. 5,
107 S.Ct. 2287; Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995).
A Physical RFC assessment was performed by Dr. Jim Takach on July 25, 2007. Dr.
Takach found that the Plaintiff could lift 20 pounds occasionally, 10 pounds frequently, stand
and/or walk and sit for 6 hours in an 8 hour work day. He also determined that she was limited
in her upper extremities. (T. 223). Dr. Takach also found Postural Limitations in that the
Plaintiff could only occasionally climb, but had no limitations on balancing, stooping, kneeling,
crouching, or crawling. (T. 224). Dr. Takach also found Manipulative Limitations in that the
Plaintiff was limited in her handling and fingering abilities. (T. 225). These findings were
reviewed and affirmed by Dr. David Hicks on October 16, 2007. (T. 240).
“The opinion of a consulting physician who examines a claimant once ... does not
generally constitute substantial evidence.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998).
Nonetheless, the ALJ's decision to credit a one-time consultant may be upheld where [the
one-time] medical assessments are supported by the medical evidence. Cantrell v. Apfel, 231
F.3d 1104, 1107 (8th Cir.2000); Anderson v. Barnhart 344 F.3d 809, 812 -813 (C.A.8
The Plaintiff contends that the ALJ erred in his RFC assessment because he found that
the Plaintiff could occasionally handle and finger with her dominant right hand and use right
(dominant) hand controls. (T. 65) (ECF No. 14, p. 16). The Plaintiff argues that her medical
records on August 23, 2006 showed wrist flexion was 0%, wrist extension was 30% versus 80%
on the left; ulnar deviation was 0-15% on the right versus 0-40% on the left; and radial deviation
was 0-15% versus 0-45% on the left. T. 184. The court notes however that this was immediately
following her surgery in August 2006 and Dr. Weiss also noted that the Plaintiff had “good rehad
potential with no apparent barriers noted” (T. 184) and that she was pain free (T. 183). In June
2007, when the Plaintiff saw Dr. Bindra he noted that her range of motion shows normal flexion
of 30 degrees, dorsiflexion of 50 degrees, radial elevation of 20 degrees and ulnar deviation of 35
degrees. He also noted that her fingers were neurovascularly intact. (T. 207). He also noted that
there was no evidence of radiocapitate arthritis. (T. 208). Dr. Bindra did note that the Plaintiff
had no palmar flexion. (T. 209).
The court finds no error in the ALJ’ determination of the Plaintiff’s RFC Assessment.
B. VE Testimony
At step five in the process, the ALJ must determine if the claimant can make an
adjustment to other work. See 20 C.F.R. § 404.1520(a)(4)(v). The ALJ sought the assistance of a
VE to determine whether the Plaintiff was capable of other work. The Commissioner may
produce evidence of suitable jobs by eliciting testimony by a vocational expert concerning
availability of jobs which a person with the claimant's particular residual functional capacity can
perform. Baker v. Apfel 159 F.3d 1140, 1144 (C.A.8 (Ark.),1998). “Testimony from a
vocational expert is substantial evidence only when the testimony is based on a correctly phrased
hypothetical question that captures the concrete consequences of a claimant's deficiencies.” Cox
v. Astrue, 495 F.3d 614, 620 (8th Cir.2007). The ALJ asked the VE the following hypothetical
Please let me rephrase the entire hypo. Please assume a younger individual with a
limited education who can lift and carry 20 pounds occasionally and 10 pounds
frequently. The individual can sit for about six hours in an eight hour workday and
can stand and walk for about six hours during an eight-hour workday. The
individual can occasionally use right hand controls. . . . Right hand dominant and .
. .occasional handling and fingering. (Tr. 47-48).
A hypothetical question to a vocational expert is properly formulated if it sets forth impairments
supported by substantial evidence in the record and accepted as true by the ALJ. Guilliams v.
Barnhart, 393 F.3d 798, 804 (8th Cir. 2005). The court finds that hypothetical question to be
The VE testified first that there the Plaintiff could not do her past work and then he said
“Well, I don’t think there’s going to be anything that she can only occasionally used in the light.
If I could find something in the sedentary”. (T. 48). The ALJ then suggested the DOT
classification of crossing guard (DOT 371.567-010). The ALJ evaluated that light job
description and testified that “Okay. Well, then could be, could be that, yes, sir. Sorry. And in
the United States there would be approximately 20,000 and in Arkansas there would be about
70". (Id.). The VE then testified that in the sedentary classification there would be the job of
surveillance system monitor (DOT 379.367-010) and that there were 27,000 of those jobs in the
United States and 600 in Arkansas. (T. 49).
To decide whether work exists in significant numbers, this Circuit has adopted the
standards set forth in Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.1988). See Jenkins v. Bowen,
861 F.2d 1083, 1087 (8th Cir.1988) (adopting Hall ). After discussing certain factors that a judge
might consider in making this determination, such as the reliability of the claimant's and the
vocational expert's testimony, the Hall court stated that “[t]he decision should ultimately be left
to the trial judge's common sense in weighing the statutory language as applied to a particular
claimant's factual situation.” Jenkins, 861 F.2d at 1087 (quoting Hall, 837 F.2d at 275).
The Eighth Circuit has held that the existence of 122 jobs in Arkansas was significant.
See Hall v. Chater, 109 F. 3d 1255 at 1259 (8th Cir. 1997). While the number of jobs available as
a crossing guard would be problematic the number of jobs available as a surveillance system
monitor would certainly meet the test.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.
Dated this August 3, 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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