Chambers v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 18, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SUMMER D. CHAMBERS
Civil No. 10-2192
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration
Factual and Procedural Background
Plaintiff, Summer D. Chambers, brings this action seeking judicial review, pursuant to 42
U.S.C. § 405(g), of a decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her application for supplemental security income (“SSI”) under Title XVI
of the Social Security Act (“the Act”).
Plaintiff protectively filed her SSI application on August 16, 2007, alleging a disability onset
date of August 1, 2007, due to neurofibromatoses,1 borderline intellectual functioning, and anxiety
disorder. Tr. 42, 44, 88-90, 112. On the application date, Plaintiff was twenty three years old with
a seventh grade special education. Tr. 14-15, 117, 189, 249, 258. She has past relevant work in
housekeeping and fast food service. Tr. 113-114, 155, 189, 258.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 56-60. At
Plaintiff’s request, an administrative hearing was held on March 12, 2009. Tr. 7-36. Plaintiff was
Neurofibromatosis is “an autosomal dominant disorder that causes tumors to develop along the course of
peripheral nerves and that occasionally results in marked soft-tissue or bone deformities.” T H E M ERCK M AN U AL OF
D IA GN OSIS AN D T H ERAPY 2903-04 (19th ed. 2011). There is no specific treatment, but tumors can be removed
present at this hearing and represented by counsel. The ALJ rendered an unfavorable decision on
November 23, 2009, finding Plaintiff was not disabled within the meaning of the Act. Tr. 39-50.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review on November 19, 2010,
thus making the ALJ’s decision the final decision of the Commissioner. Tr. 1-3. Plaintiff now seeks
judicial review of that decision.
On September 18, 2007, Plaintiff saw C.R. Magness, M.D., for a consultative physical
examination. Tr. 171-177. On examination, Dr. Magness noted wheezing and increased anteriorposterior (“AP”) diameter in Plaintiff’s chest. Tr. 174. Plaintiff had bilateral wrist weakness. Tr.
173. Flexion of both wrists was limited to 40 degrees (normal range of motion is 60 degrees). Tr.
174. Limb function was “ok,” except Plaintiff had 70% grip strength on the right and 75% grip
strength on the left. Tr. 175. However, she was able to hold a pen and write, touch her fingertips
to her palm, oppose her thumbs to her fingers, and pick up a coin. Tr. 175. She had a poor ability
to squat and rise from a squatting position. Tr. 175. Dr. Magness diagnosed Plaintiff with chronic
obstructive pulmonary disease (“COPD”), asthma, and carpel tunnel syndrome, worse on the right.
Tr. 177. He found moderate to severe limitation in Plaintiff’s ability to handle and finger. Tr. 177.
He also noted anxiety and personality symptoms, as well as previous drug addiction. Tr. 177.
In a Physical Residual Functional Capacity (“RFC”) Assessment dated September 23, 2007,
Robert Redd, M.D., found Plaintiff could occasionally lift/carry ten pounds, frequently lift/carry less
than ten pounds, stand/walk at least two hours in an eight-hour workday, sit for about six hours in
an eight-hour workday, and push/pull with those limitations. Tr. 178-185. He determined Plaintiff
had no manipulative, visual, communicative, or environmental limitations, but could only
occasionally climb, balance, stoop, kneel, crouch, or crawl. Tr. 180-182.
On October 1, 2007, Plaintiff saw Robert L. Spray, Jr., Ph.D., for a consultative mental
evaluation. Tr. 188-194. Plaintiff reported receiving treatment at Western Arkansas Counseling and
Guidance Center (“WACGC”) in 1999 for drug usage and depression. Tr. 188. She also received
inpatient treatment at Willow Crest Hospital in Oklahoma as well as substance abuse rehabilitation.
Tr. 189, 226-246. However, Plaintiff had not received treatment or taken medication since 2000 or
2001 due to cost. Tr. 189. When asked about substance abuse, Plaintiff reported prior use of
methamphetamine, crystal meth, and marijuana. Tr. 189. She reportedly used marijuana about once
per month and drank “at least a pint and a 12-pack” of alcohol almost every day. Tr. 189.
On examination, Plaintiff was cooperative and alert, but had a “wrung-out,” stressed look
about her. Tr. 189. She appeared sad and tearful. Tr. 190. Thought processes were logical, goaldirected, and relevant. Tr. 190. Although Plaintiff admitted a history of suicidal ideation, she denied
any current suicidal thoughts. Tr. 190. She reported nightmares associated with childhood sexual
abuse. Tr. 190. She also reported hearing voices and having other personalities. Tr. 190.
On the Wechsler Adult Intelligence Scale-III (“WAIS-III”), Plaintiff received a verbal IQ of
71, a performance IQ of 87, and a full-scale IQ of 77, placing her within the borderline range of
intelligence. Tr. 190. Weaknesses were identified as verbal reasoning and arithmetic. Tr. 191. Dr.
Spray diagnosed Plaintiff with dysthymia, panic disorder, PTSD vs. dissociative identity disorder
(provisional), alcohol dependence, cannabis abuse, polysubstance abuse in remission, and borderline
intellectual functioning. Tr. 191. He estimated Plaintiff’s Global Assessment of Functioning
(“GAF”) score at 50-60. Dr. Spray noted some impairment in the ability to attend and sustain
concentration, comprehend verbal instructions, and complete tasks in acceptable time frame. Tr.
192. He also noted that, in a work setting, “interpersonal relationships may be strained due to
suspiciousness, high levels of anxiety, and saddened mood.” Tr. 192. However, Plaintiff gave good
effort and persisted well, and her pace was adequate. Tr. 192.
In a Psychiatric Review Technique Form (“PTRF”) dated October 11, 2007, Jay Rankin, an
agency specialist, determined Plaintiff did not meet the requirements of Listings 12.04 (affective
disorders), 12.05 (mental retardation), 12.06 (anxiety-related disorders), or 12.09 (substance
addiction disorders). Tr. 195-208. Rankin found mild restriction of activities of daily living,
moderate difficulties in maintaining social functioning, moderate difficulties in maintaining
concentration, persistence, or pace, and no episodes of decompensation, each of extended duration.
In a Mental RFC Assessment, Rankin found Plaintiff was moderately limited in her ability
to carry out detailed instructions, maintain attention and concentration for extended periods, sustain
an ordinary routine without special supervision and without being unduly distracted by others,
complete a normal workday and workweek without interruptions from psychologically based
symptoms, perform at a consistent pace without an unreasonable number and length of rest periods,
accept instructions and respond appropriately to criticism from supervisors, respond appropriately
to changes in the work setting, and set realistic goals or make plans independently of others. Tr. 211214. He found Plaintiff was not significantly limited in the twelve remaining categories. Tr. 213.
Based on his findings, Rankin determined Plaintiff was capable of performing unskilled work. Tr.
On May 28, 2009, Plaintiff saw David Oberlander, M.D., at Conway Neurology, for a
consultative physical examination. Tr. 253-255. She complained of depression, anxiety, headaches,
and memory loss. Tr. 253. Plaintiff denied wheezing, shortness of breath, asthma attacks, or
pneumonia. Tr. 253. On examination, Plaintiff’s recent and remote memory were intact. Tr. 254.
She had normal motor strength, coordination, sensation, and gait. Tr. 254. Overall, Plaintiff’s
neurological examination was normal. Tr. 254. Additionally, her language, speech, and memory
were within normal limits. Tr. 254-255. Dr. Oberlander believed Plaintiff suffered from tension
headaches. Tr. 254.
On June 25, 2009, Plaintiff saw Patricia J. Walz, Ph.D., for a consultative mental evaluation.
Tr. 257-265. Plaintiff complained of neurofibromatosis, which caused brown spots underneath her
skin, speech and comprehension problems, ADHD, and scoliosis. Tr. 257. She took no prescription
medication. Tr. 258. When asked about education, Plaintiff stated she quit school in the ninth grade.
Tr. 258. She reportedly repeated several grades and had special education classes. Tr. 258. Areas
of difficulty included reading and arithmetic. Tr. 258. Plaintiff had work experience in fast food
service and housekeeping, but stated she had trouble getting along with others. Tr. 258. She had
not received any recent treatment or taken medication because of cost. Tr. 259. She reported recent
suicidal ideation. Tr. 259.
On examination, Plaintiff cried when frustrated and appeared rushed at times. Tr. 260. Her
effort was suspect. Tr. 260. On the WAIS-III, Plaintiff received a verbal IQ of 80, a performance
IQ of 99, and a full scale IQ of 88. Tr. 261. On the Computer Assessment of Response Bias
(“CARB”), Plaintiff did not put forth good effort and her scores were considered invalid. Tr. 261.
On the Wechsler Memory Scale, Plaintiff earned scores in the average range with the exception of
auditory recognition memory, which was high average, and working memory (attention and
concentration), which was low average. Tr. 261. On the Wide Range Achievement Test III
(“WRAT-3"), Plaintiff’s scores were consistent with a third grade reading level, a second grade
spelling level, and a fourth grade arithmetic level. Tr. 262. Results of the Minnesota Multiphasic
Personality Inventory, Revised (“MMPI-2"), were considered invalid due to exaggeration of
symptoms. Tr. 262. Fine manual dexterity was slowed in the right hand and low average in the left
hand. Tr. 262. Plaintiff’s grip was weak bilaterally. Tr. 262.
Dr. Walz noted that although Plaintiff did not put forth adequate effort, her performance did
not suggest mental retardation. Tr. 262. However, she found consistent signs of left hemisphere
dysfunction including worse verbal than performance IQ, impairment on the Aphasia screen, and
right motor slowing, which most likely reflected a verbal learning disorder. Tr. 263. Dr. Walz
diagnosed Plaintiff with major depression, recurrent, moderate to severe, panic disorder without
agoraphobia, history of polysubstance dependence in partial remission, and personality disorder with
borderline and antisocial features. Tr. 263. She estimated Plaintiff’s GAF score at 40 based on
suicidal thinking and poor social functioning. Tr. 263.
The Court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
she is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits her physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform her past relevant work; and (5) if the
claimant cannot perform her past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given her
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at
any point since August 16, 2007, the application date. Tr. 44. At step two, the ALJ found Plaintiff
suffers from neurofibromatosis, borderline intellectual functioning, and anxiety disorder, all of which
were considered severe impairments under the Act. Tr. 44. At step three, he determined Plaintiff
did not have an impairment or combination of impairments that met or medically equaled a listed
impairment. Tr. 44-46. At step four, the ALJ found Plaintiff could perform unskilled work where
interpersonal contact is incidental to the work performed. Tr. 46-49. Physically, he determined
Plaintiff could lift/carry ten pounds occasionally and less than ten pounds frequently, sit for about
six hours in an eight-hour workday, stand and walk for at least two hours in an eight-hour workday,
occasionally climb, balance, stoop, kneel, crouch, and crawl, and frequently handle and finger. Tr.
46-49. Based on this RFC assessment, the ALJ determined Plaintiff could not perform her past
relevant work. Tr. 49. However, after receiving vocational expert testimony, the ALJ found jobs
existing in significant numbers in the national economy that Plaintiff could perform.2 Tr. 49-50.
Accordingly, the ALJ determined Plaintiff was not under a disability from August 16, 2007, the
application date, through November 23, 2009, the date of the decision. Tr. 50.
On appeal, Plaintiff contends that the ALJ erred by: (1) failing to find her carpal tunnel
syndrome severe; and (2) improperly determining her RFC. See Pl.’s Br. 8-17. The court agrees.
At the fourth step of the evaluation, a disability claimant has the burden of establishing his
RFC. Eichelberger, 390 F.3d at 591; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). A
claimant’s RFC is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ
determines a claimant’s RFC based on “all relevant evidence, including medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has stated that “a claimant’s residual
The ALJ determined Plaintiff could perform the requirements of representative occupations such as bench
assembler, of which there are 4200 jobs regionally and 84,000 jobs nationally, inspector/sorter, of which there are
1000 jobs regionally and 68,000 jobs nationally, and surveillance systems monitor, of which there are 300 jobs
regionally and 34,000 jobs nationally. Tr. 50.
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus,
although the ALJ bears the primary responsibility for determining a claimant’s RFC, there must be
“some medical evidence” to support the ALJ’s determination. Eichelberger, 390 F.3d at 591; Dykes
v. Apfel, 223 F.3d 865, 867 (8th Cir 2000
In this instance, the ALJ did not properly take into account the limitations arising from
Plaintiff’s wrist impairment. Dr. Magness found bilateral wrist weakness, limited flexion (40
degrees) in both wrists, 70% grip strength in Plaintiff’s right hand, and 75% grip strength in
Plaintiff’s left hand. Tr. 175. He diagnosed Plaintiff with carpal tunnel syndrome and noted
moderate to severe limitation in Plaintiff’s ability to handle and finger. Tr. 177. In May 2009, Dr.
Oberlander found normal motor strength and intact fine motor skills. Tr. 254. However, in June
2009, Dr. Walz found bilateral grip weakness, slowed fine manual dexterity in the right hand, and
low average dexterity in the left hand. Tr. 262
It is the ALJ’s function to resolve conflicts among various treating and examining physicians.
See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002). However, based on the objective findings
of two consultative physicians, Plaintiff’s ability to perform frequent,3 repetitive handling and
fingering is questionable. Moreover, the court cannot account for the ALJ’s finding that Plaintiff’s
carpal tunnel syndrome poses no more than a minimal effect on her ability to perform basic work
activities. Tr. 44. As such, the court remands this case for further consideration of Plaintiff’s carpal
tunnel syndrome and how it affects her ability to perform work existing in significant numbers in the
national economy. On remand, the ALJ should attempt to obtain medical source statements from
Frequent is defined as occurring between one-third and two-thirds of the time. See SSR 83-10. Most
unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions. Id.
Dr. Magness and Dr. Oberlander concerning Plaintiff’s hand limitations, so that an informed
decision can be made regarding Plaintiff’s ability to perform basic work activities on a sustained
Accordingly, the undersigned concludes that the ALJ’s decision is not supported by
substantial evidence and should be reversed and remanded to the Commissioner for further
consideration pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED this 18th day of November 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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