Ruffner v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on February 27, 2013. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DEBORAH RUFFNER
v.

PLAINTIFF
Civil No. 12-2044

CAROLYN W. COLVIN1, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Deborah Ruffner, 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 her claim
for supplemental security income (“SSI”) under Title XVI of the Social Security Act (hereinafter “the
Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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).
I.

Procedural Background:
Plaintiff filed her application for SSI on May 30, 2006, alleging an onset date of April 1, 2003,

due to carpal tunnel syndrome (“CTS”), osteoarthritis in the knees and ankles, post traumatic stress
disorder (“PTSD”), bipolar disorder, mental retardation, and poor vision in the left eye. Tr. 37, 54, 8487, 114, 122-123, 148, 156. After this Court remanded the Commissioner’s prior decision denying
benefits on April 16, 2010, the Administrative Law Judge (“ALJ”) held a supplemental hearing on July
19,. Tr. 292-328, 485-511.
At the time of the supplemental hearing, Plaintiff was 43 years old , possessed a high school
education. Tr. 118. Plaintiff had past relevant work (“PRW”) experience as a laborer and a home health
aide. Tr. 19, 115, 132-139, 163.

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Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule 25(d)(1)
of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael J. Astrue as the
defendant in this suit.

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On November 16, 2011, the ALJ found Plaintiff’s osteoarthritis, decreased vision in the left eye,
mild CTS, and depressive disorder to be severe, but concluded they did not meet or medically equal one
of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 276-279. After partially
discrediting Plaintiff’s subjective complaints, the ALJ determined that Plaintiff retained the residual
functional capacity (“RFC”) to perform light work except
the claimant cannot perform work requiring excellent vision, but can avoid normal
hazards in the workplace and can distinguish between shapes and colors of objects such
as screws, nuts, and bolts; can frequently do rapid, repetitive flexion and extension of
the wrists; and can frequently finger and handle. Further, the claimant is limited to
work where interpersonal contact is incidental to the work performed; where the
complexity of the tasks is learned and performed by rote, with few variables and little
judgment required; and where supervision required is simple, direct, and concrete.
Tr. 280. With the assistance of a vocational expert, the ALJ found Plaintiff could perform work as a
poultry production worker, production line assembler, and hotel/motel housekeeper. Tr. 290.
Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned by
consent of the parties. Both parties have filed appeal briefs, and the case is now ready for decision.
ECF Nos. 11, 14.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002).
Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it
adequate to support the Commissioner's decision. The ALJ's decision must be affirmed if the record
contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
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. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is possible

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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. 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 her disability by establishing a physical or mental disability that has lasted at least one year and
that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir.2001); see also 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 or her
disability, not simply their impairment, has lasted for at least twelve consecutive months.
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).
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the most a

person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability claimant has
the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004).

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“The ALJ determines a claimant’s RFC based on all relevant evidence in the record, including medical
records, observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009); see also Jones v. Astrue, 619 F.3d
963, 971 (8th Cir. 2010) (ALJ is responsible for determining RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and claimant’s own description
of his limitations). 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); see also Jones, 619 F.3d at 971 (RFC finding must be
supported by some medical evidence).
Records indicate that Plaintiff was treated for bilateral wrist pain during the relevant time period.
On June 20, 2006, Plaintiff complained of bilateral wrist pain. Tr. 263. She reported An examination
revealed bilateral wrist tenderness and nervousness. Plaintiff was diagnosed with bilateral wrist
pain/osteoarthritis and prescribed Prilosec. Tr. 263.
On August 15, 2006, Plaintiff underwent a general physical examination with Dr. William
Swindell. Tr. 218-226. Plaintiff complained of carpal tunnel syndrome, among other complaints. She
reported burning pain in her hands that radiated into her shoulders. Plaintiff stated she had never
actually been diagnosed with carpal tunnel syndrome or even undergone testing for it. She had merely
diagnosed herself. However, Dr. Swindell noted that she did have symptoms that might be suggestive
of carpal tunnel. However, the pain seemed to encompass her whole hand, not just the median nerve.
A physical examination revealed no range of motion limitations, muscle spasm, joint abnormalities or

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deformities, muscle weakness, or atrophy. She could hold a pen and write; touch fingertips to palms;
grip 50% with the right and 70% with the left; oppose thumb to fingers; and, pick up a coin although
difficulty gripping was noted. Dr. Swindell diagnosed her with pain in the right wrist that could be
carpal tunnel, but he was not convinced it was and osteoarthritis. He opined that the wrist pain and
osteoarthritis were mildly limiting. However, he did not define “mildly.”
Initially, the ALJ dismissed Dr. Swindell’s determination that Plaintiff had only a 50% grip
strength in her right hand and 70% grip strength in her left, stating that there was no documentation of
testing undertaken to establish these limitations. On remand, he was directed to recontact Dr. Swindell
for clarification of these findings. See Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (social
security hearing is non-adversarial proceeding, and ALJ has duty to develop record fully; duty may
include seeking clarification from treating physicians if crucial issue is undeveloped or underdeveloped);
Garza v. Barnhart, 397 F.3d 1087, 1089-90 (8th Cir. 2005) (per curiam) (ALJ’s duty to develop record
fully and fairly exists even when claimant is represented by counsel). On remand, it appears that an RFC
assessment was forwarded to Dr. Swindell, but the assessment was not completed. And, the record does
not make clear why the assessment was not completed, nor does it indicate that the ALJ followed-up with
Dr. Swindell to determine his reason for not completing the assessment. Tr. 472-482. Given that the
ALJ was directed to recontact Dr. Swindell, we find it concerning that the record documents no such
contact, aside from an RFC assessment being mailed to him. The ALJ did, however, order a second
general physical exam and a neurological consultative exam.
On May 3, 2011, Plaintiff underwent a general physical exam with Dr. Van Hoang. Tr. 486-490.
She complained of CTS with bilateral hand numbness and tingling sensations and polyarthralgia in the
ankles and wrists for 15 years. An examination revealed a normal range of motion in all joints, muscle
weakness with dorsiflexion in the ankles bilaterally, a bradykinetic uncoordinated gait, bilateral non-

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pitting edema in the legs bilaterally, and normal grip strength. Dr. Hoang opined that Plaintiff could hold
a pen and write, touch fingertips to palm, oppose thumb to palm, pick up a coin, stand/walk without
assistive devices, walk on heel and toes, and squat and arise from a squatting position. He diagnosed her
with polyarthralgia of the wrists and CTS, by history. Dr. Hoang then assessed her with “moderate
physical limitation for work,” but provided no explanation of his findings.
On September 7, 2011, Plaintiff underwent a neurological evaluation with Dr. David Oberlander.
Tr. 509-511. She complained of pain in both hands with numbing and tingling in the early morning,
occasional shaking in her hands, and dropping things. An examination revealed mild weakness in the
hands; reduced sensory appreciation to light touch in the right and left index fingers; and, positive Tinel
and Phalen Sign at the wrist bilaterally. Dr. Oberlander assessed Plaintiff with what appeared to be an
element of CTS producing weak grips in both hands and sensory deficits. Dr. Oberlander did not,
however, explain how these limitations would impact Plaintiff’s ability to finger and handle.
After reviewing the entire record in this case, we find that remand is again necessary to provide
clarification regarding the limitations imposed by Plaintiff’s probable CTS. As previously noted, Dr.
Oberlander failed to explain how Plaintiff’s weak grip and sensory deficits would impact her ability to
handle and finger on a regular basis. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (holding that
Commissioner is encouraged to give more weight to the opinion of a specialist about medical issues
related to his or her area of speciality than to the opinion of a source who is not a specialist). And,
although Dr. Hoang concluded that she would have “moderate” work limitations, he failed to complete
an RFC assessment. Additionally, we are still left with Dr. Swindell’s unexplained assessment of
significantly decreased grip strength. Because RFC is a medical question, the ALJ’s RFC must be based
on medical evidence that addresses the claimant’s ability to function in the workplace. See Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). Since the evidence does not specify how Plaintiff’s wrist

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and hand related limitations would impact her ability to work, remand is necessary for further
development of the record.
We note that repetitive tasks that require bending of the wrists or grasping with the hands,
including typing, cutting, sewing, playing a musical instrument, overuse of small hand tools, and use of
vibrating tools are factors that can contribute to the development of CTS. See PHYSICIAN’S DESK
REFERENCE, Carpal Tunnel Syndrome, http://www.pdrhealth.com/diseases/carpal-tunnel-syndrome (Last
accessed February 25, 2013). It seems reasonable that an individual who has suffers from CTS might
also need to avoid these activities, which do not just involve the rapid and repetitive use of their wrists,
in order to prevent further complications. Accordingly, on remand is advised to consider this
information.

Further, the ALJ appears to penalize the Plaintiff for not having undergone any objective

tests, such as x-rays or MRIs. However, the record also reveals that she was obtaining her treatment
through the Good Samaritan Clinic. As this is a Clinic offering low cost or no cost medical services to
the community, we believe that the ALJ should have considered the possibility of financial hardship
prior to dismissing Plaintiff’s complaints based on a lack of “objective” testing. Murphy v. Sullivan, 953
F.2d 383, 386 (8th Cir. 1992) (holding that economic justifications for lack of treatment can be relevant
to a disability determination). We also note that physical exams revealing limitations also constitute
“objective” evidence, upon which doctors will frequently base a diagnosis. The lack of x-rays, CT scans,
and MRIs does not negate the findings of a physical exam. Therefore, the ALJ is directed to consider
the results of said exams on remand.
V.

Conclusion:
Accordingly, we conclude 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).

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DATED this 27th day of February 2013.

/s/J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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