Burris v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 28, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EVA M. BURRIE
v.

PLAINTIFF
CIVIL NO. 13-2229

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Eva M. Burrie, brings this action pursuant to 42 U.S.C. §405(g), seeking judicial
review of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her claim for a period of disability and disability insurance benefits (“DIB”) under the
provisions of Title II of the Social Security Act (“Act”). 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 protectively filed an application for DIB on July 28, 2010 (Tr. 17, 147) alleging an
inability to work since July 24, 2010, due to Takotsubo cardiomyopathy, stress cardiomyopathy,
metabolic syndrome, hypertension, depression, and gastric reflux (Tr. 147, 169). Plaintiff’s claim
was denied initially and on reconsideration. An administrative hearing was held on October 6, 2011,
at which Plaintiff appeared with counsel and testified. (Tr. 37-75).
At the time of the administrative hearing, Plaintiff was forty-five years of age and possessed
an associate’s degree. (Tr. 42-43). Plaintiff had past relevant work (“PRW”) experience as a nurse

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and as an assistant director of nursing. (Tr. 43,160, 170).
By a written decision dated March 22, 2012, the Administrative Law Judge (“ALJ”)
determined that Plaintiff had the following severe impairments: nonischemic cardiomyopathy,
degenerative disc disease of the cervical spine, fibromyalgia, bilateral carpal tunnel syndrome status
post surgery (“CTS”), hypertension, asthma, obesity, history of syncopal episode, depressive
disorder, anxiety disorder, somatoform disorder, and psychological factors affecting medical
conditions. (Tr. 19). After reviewing all of the evidence presented, however, the ALJ determined that
Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed in the
Listing of Impairments. (Tr. 19). The ALJ found Plaintiff retained the residual functional capacity
(“RFC”) to perform light work as defined in CFR 404.1567(a) except she could not perform any
rapid or repetitive flexion or extension of the wrists; must avoid concentrated exposure to
temperature extremes, humidity, fumes, odors, dusts, gases, and poor ventilation; must avoid
concentrated exposure to hazards, including no driving as part of work; could perform simple,
routine, and repetitive tasks; and could do work where interpersonal contact is incidental to the work
performed, complexity of tasks is learned and performed by rote with few variables and little
judgment involved, and supervision required is simple, direct, and concrete. (T. 22). With the help
of a vocational expert (“VE”), the ALJ determined Plaintiff could not perform any PRW. (Tr. 28).
The ALJ determined that Plaintiff could perform the requirements of representative occupations
such as a maid or housekeeper, laundry worker, or hand packer and that Plaintiff had not been under
a disability, as defined by the Act, during the relevant time period. (Tr. 29).
Plaintiff then requested a review of the hearing decision by the Appeals Council on May 25,
2012, (Tr. 12) which denied that request on August 19, 2013. (Tr. 1-6). Subsequently, Plaintiff filed
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this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc.
7). Both parties have filed appeals briefs, and the case is ready for decision. (Doc. 12, 13).
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. “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.” Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). 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 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 his or her disability by establishing a physical or mental disability that has lasted at lease one
year and that prevents her from engaging in 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,
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physiological, or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A Plaintiff must
show that her disability, not simply her 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 the application of a five-step sequential evaluation
process to each claim for disability benefits. 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 RFC. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R.
§ § 404.1520, 416.920 (2003).
III. Discussion
The Court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records,
and relevant administrative records and finds the ALJ's decision is not supported by substantial
evidence.
A. Development of the Record:
Plaintiff argues that the ALJ failed to develop the record because the ALJ should have
contacted her cardiologist and neurologist and did not look at all of her alleged impairments. (Pl. Br.
12).
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d
935, 938 (8th Cir. 1995). This duty exists “even if ... the claimant is represented by counsel.”
Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (quoting Warner v. Heckler, 722 F.2d 428,
431 (8th Cir.1983)). The ALJ is not required to act as Plaintiff’s counsel, but only to develop a
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reasonably complete record. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994); see also
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (“reversal due to failure to develop the record
is only warranted where such failure is unfair or prejudicial”). “The regulations do not require the
Secretary or the ALJ to order a consultative evaluation of every alleged impairment. They simply
grant the ALJ the authority to do so if the existing medical sources do not contain sufficient evidence
to make a determination.” Matthews v. Bowen, 879 F.2d 423, 424 (8th Cir. 1989).
The record shows Plaintiff underwent a nerve conduction study (Tr. 499) and an MRI of her
cervical spine (Tr. 500) after complaining to her neurologist, Dr. Tonya Phillips, that she “felt that
her balance was not quite as good” and had “numbness, tingling, and weakness in her arms and
hands.” (Tr. 485-487). Plaintiff was diagnosed with “bilateral median mononeuropathy, moderate
to severe, slightly worse on the right side” by Dr. Phillips (Tr. 489). The diagnosis that indicated
CTS was confirmed by Plaintiff’s neurosurgeon, Dr. Jorge Alvernia. (Tr. 518, 521). After successful
surgery on her right side (Tr. 514-515), Plaintiff reported to Dr. Alvernia on her two follow-up visits
that the pain in her right hand had disappeared. (Tr. 602-605).
Turning to Plaintiff’s heart condition, a review of the record shows that in January 2010 a
cardiac catherization, angiogram, and echocardiogram demonstrated Plaintiff had no significant
coronary heart disease, but showed she had a decreased ejection fraction of forty-five percent. (Tr.
254-257, 260-261, 386-388). She was diagnosed with cardiomyopathy by Dr. Ronald Kantola. (Tr.
260-261). On February 4, 2010, Plaintiff again saw Dr. Kantola who advised her to return to work
in a couple of weeks. (Tr. 378). On March 22, 2010, Plaintiff had another office visit with Dr.
Kantola who noted that he “originally thought she had stress-induced cardiomyopathy or Takotsubo
[but] it appears she has nonischemic cardiomyopathy” because a new echocardiogram showed
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Plaintiff’s ejection fraction was fifty-percent. (Tr. 377, 386). Dr. Kantola also wrote that “she has
no specific complaints today ... she did have an episode of chest discomfort on Saturday that lasted
for about fifteen minutes.” (Tr. 377). Plaintiff was next admitted to the ER on June 20, 2010 with
complaints of chest pain and jaw pain. (Tr. 296). A chest x-ray ruled out a pulmonary embolism.
(Tr. 316-317). Plaintiff saw Dr. Kantola again on June 25, 2010 and on July 16, 2010. (Tr. 374-375).
Dr. Kantola noted after the July visit that there was some concern she had “stress-induced
cardiomyopathy or Takotsubo” and that she “may need to have a reevaluation of her medications for
anxiety.” (Tr. 375).
Plaintiff switched cardiologists in October 2010 when she began seeing Dr. Julio Schwarz.
and underwent a two-dimensional echocardiogram and Doppler study. (Tr. 453-454). After
reviewing the test results, Dr. Schwarz determined that Plaintiff showed “no evidence of stress
induced ischemia” and advised plaintiff that this meant “the risk of having a heart attack is that of
the general population, which is 1% per year.” (Tr. 451). Dr. Schwarz noted that “as it usually
happens Takotsubo cardiomyopathy has recovered now with normal left ventricular systolic
function.” (Tr. 451-452).
A review of the record shows that the ALJ was presented with sufficient medical records to
determine the merits of Plaintiff’s DIB claim. In his written decision, the ALJ specifically discussed
Plaintiff’s visits to her neurologist and cardiologist, the battery of heart exams she underwent, her
diagnosis of carpal tunnel syndrome, and her successful neurosurgery to decompress the right median
nerve at the carpal tunnel on her right side. (Tr. 23-24, 26). There is no bright line rule indicating
when the Commissioner has or has not adequately developed the record; rather, such an assessment
is made on a case-by-case basis. Battles v. Shalala, 36 F.3d 43 at 45 (8th Cir. 1994). Given the
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amount of evidence analyzed in the ALJ’s written decision and the Court’s deference to the ALJ
when deciding if the record is fully developed, the Court concludes the ALJ met his basic duty to
fully and fairly develop the record..
B. Residual Functional Capacity:
RFC is the most a person can do despite that person’s limitations, and is assessed using all
relevant evidence in the record. 20 C.F.R. §404.1545(a)(1). 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). A “claimant’s RFC is a medical question, 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. Lauer v. Apfel, 245 F.3d 700, 704 (8th
Cir. 2001); Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). The ALJ is required to set forth
with specifics a claimant’s limitations and to determine how those limitations affect a claimant’s
RFC. Id.
1. Credibility Analysis:
In determining a claimant's RFC, “the ALJ must first evaluate the claimant's credibility.”
Pearsall v. Massanari, 274 F.3d1211, 1217 (8th Cir. 2002). The ALJ is required to consider all the
evidence relating to Plaintiff's subjective complaints including evidence presented by third parties
that relates to: (1) Plaintiff's daily activities; (2) the duration, frequency, and intensity of her pain;
(3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of her
medication; and (5) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
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1984).While an ALJ may not discount a claimant’s subjective complaints solely because the medical
evidence fails to support them, an ALJ may discount those complaints where inconsistencies appear
in the record as a whole. Id. It is well established that “credibility is primarily a matter for the ALJ
to decided.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). “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). The Court should, “defer to the ALJ's
determinations regarding the credibility of testimony, so long as they are supported by good reasons
and substantial evidence.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012).
Plaintiff argues that the ALJ did not give sufficient reasons for his credibility determination and
failed to consider the Polaski factors. (Pl. Br. 12-14). The written decision shows, however, that the
ALJ considered Plaintiff’s daily activities, descriptions of pain, precipitating and aggravating factors
as well as the limitations and activities Plaintiff detailed in her Function Report, testimony, and
discussed with her physicians. (Tr. 24). After considering these Polaski factors, the ALJ identified
several inconsistencies between Plaintiff’s subjective complaints and the rest of the evidence in the
record. Specifically, the ALJ found that Plaintiff’s subjective complaints were contradicted by her
loss of thirty pounds from walking during the period of her alleged disability (Tr. 24), the road trips
that she took with her husband, a truck driver (Tr. 24), her testimony exaggerating the number of
times she met with her psychiatrist (Tr. 26), and her failure to seek treatment after April 20111 (Tr.
25). The ALJ also found that Plaintiff’s testimony at the administrative hearing exaggerated her
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The ALJ appeared to place special weight on the fact that Plaintiff was receiving
approximately $2,000 a month in disability benefits already and should have been able to pay for
medical treatment. (Tr. 25, 64-65). Although not error, Plaintiff reported to Dr. Kathleen Kralik,
whose opinion was given substantial weight by the ALJ, that she was in bankruptcy proceedings
and struggling financially. (Tr. 456).
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limitations, especially her testimony regarding her incontinence, because she did not describe her
limitations as having the same severity to her physicians. (Tr. 25).
A review of the record indicates that there was substantial evidence to support the ALJ’s
credibility determination. In addition to the facts referenced by the ALJ, the record shows that
Plaintiff submitted inconsistent Function Reports (152-159, 190-197), she told Dr. Kathleen Kralik
at her Mental Diagnostic Evaluation that she was driving and had recently earned her CDL license
and that in her free time she sat outside and tried to crochet (Tr. 461), but reported at her hearing and
in her Function Reports that she could not drive herself or grip small objects (Tr. 59-62, 193), and
she testified that she could not walk farther than “across the room”(Tr. 59-61) but she did not use
assistive devices. Despite the existence of some facts such as Plaintiff’s work history that gave
weight to her credibility (Pl. Br 13), the ALJ’s credibility finding was supported by the objective
medical evidence in the record. See Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010)(deferring
to the ALJ's credibility determination because the objective medical evidence did not support the
claimant's testimony).
The ALJ also considered the Polaski factors and discussed Plaintiff’s inconsistent statements and
behavior that affected her credibility. Plaintiff correctly points out that the ALJ did not reference
Plaintiff’s medications in his analysis or specifically cite Polaski, but this does not amount to error
because the ALJ considered some of the factors. Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir.
2011)(affirming an ALJ's credibility determination despite no citation to Polaski since the ALJ still
discussed four Polaski factors). Reading the ALJ's opinion as a whole, the Court finds that because
the ALJ considered the Polaski factors and provided a reasonable explanation for discounting
Plaintiff’s subjective complaints the ALJ's credibility determination is entitled to deference. See

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Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012).
2. RFC Determination:
The ALJ found Plaintiff could perform light work with several additional limitations,
most notably that Plaintiff had manipulative limitations and could not work in an environment with
high stress or significant interpersonal contact. (Tr. 22). Plaintiff argues, however, that the ALJ erred
by failing to include all of her limitations in the RFC assessment (Pl. Br. 18), and erred by giving
improper treatment to some of the opinion evidence. (Pl. Br. 17).
Plaintiff submitted a physical and mental RFC assessment from her treating physician, Dr.
Carolyn Dillard (Tr. 544-550), and a mental RFC assessment from her treating psychiatrist, Donald
Chambers. (Tr. 587-590). Dr. Dillard opined in her physical RFC assessment that Plaintiff had severe
limitations on her ability to use her hands and could only sit/stand/walk for a total of five hours in
an eight-hour work day. (Tr. 544-546). In her mental RFC assessment, Dr. Dillard opined that
Plaintiff had a number of marked to extreme limitations that would prohibit her from functioning
in the workplace. (Tr. 546-550). Dr. Chambers’ opinion was that Plaintiff had a number of mild or
moderate limitations, and that Plaintiff had a marked limitation to remember detailed or complex
instructions or maintain concentration for extended periods of time. (Tr 587-590).
The record also included physical and mental RFC assessments from the State’s consulting
physicians and a mental diagnostic evaluation with the State’s examining physician Dr. Kathleen
Kralik. In two physical RFC assessments, the State’s consulting physician, Dr. Charles Friedman
(Tr. 416-422, 493-497), opined Plaintiff had no significant limitations and that Plaintiff’s RFC was
medium work (Tr. 422). His opinion was affirmed by Dr. Patricia McCarron. (Tr. 539-543). While
Dr. Friedman’s did not have Plaintiff’s restated subjective complaints in the second Function Report,

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this information was reviewed by Dr. McCarron.
For Plaintiff’s mental abilities, Dr. Kralik found in her evaluation that Plaintiff had some mental
limitations and estimated that Plaintiff’s current global assessment of functioning (“GAF”) was 4555 and typically 50-60. (Tr. 455-462). Specifically, Dr. Kralik opined that Plaintiff had some mild
to moderate impairments as well as a moderate impairments in her persistence in completing tasks
and ability to communicate in a socially adequate manner. (Tr. 461). The State’s consulting
physician, Dr. Sheri Simon, opined in her mental RFC assessment that Plaintiff was capable of
unskilled work (467-483), an opinion affirmed by Dr. Christal Janssen. (Tr. 523-530).
The ALJ’s written decision established that the ALJ was familiar with Plaintiff’s record. The
ALJ noted the sources that he considered and assigned a specific weight to each source. The problem
is that the ALJ discounted so many sources that it is not clear how the ALJ could have based the
RFC he assigned on substantial evidence. The ALJ discounted the treating physician’s opinions
about Plaintiff’s physical limitations because “the records from Dr. Dillard [did] not show symptoms
or even reports of symptoms that would support such extensive limitations.” (Tr. 25). Further into
the written decision, the ALJ also discounted Dr. Dillard’s opinions on Plaintiff’s mental RFC
because Dr. Dillard was not “a specialist in this field, and the [Plaintiff was] seen by specialists who
[did] not find her as limited as Dr. Dillard.” (Tr. 27).2
There are times Courts will uphold the ALJ's decision to discount a treating physician's opinion:
(1) where [the one-time] medical assessments are supported by better or more thorough medical

2

The ALJ, however, does note that Dr. Dillard’s opinion regarding Plaintiff’s
environmental limitations deserved some weight stating, “while the records do not support the
full extent of the environmental limitations stated in her opinion, they show the claimant does
have some limitations.” (Tr. 25).
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evidence, or (2) where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions." Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000); Anderson v.
Barnhart, 344 F.3d 809, 812-813 (8th Cir. 2003). Here, the ALJ reasonably discounted Dr. Dillard’s
opinions about Plaintiff’s mental RFC because Dr. Dillard was not a specialist and it was reasonable
to give more weight to the mental RFC evaluation completed by Plaintiff’s treating psychiatrist, Dr.
Chambers. See Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010)("Greater weight is generally
given to the opinion of a specialist about medical issues in the area of specialty, than to the opinion
of a non-specialist."). The ALJ, however, did not reasonably discount Dr. Dillard’s opinion regarding
Plaintiff’s physical RFC.
Contrary to the ALJ’s written decision, a careful review of the medical record shows that
Plaintiff presented her symptoms and limitations to Dr. Dillard. For instance, Dr. Dillard was the
physician that prescribed several of Plaintiff’s heart and anxiety medications, (Tr. 430, 432, 434) and
Plaintiff had complained to Dr. Dillard about numbness in her arms post-carpel tunnel surgery (Tr.
436). As noted by the ALJ in his written decision, Plaintiff “presented to Dr. Dillard with body aches
located diffusely in her joints ... Dr. Dillard wrote that the claimant’s complaints moderately limited
her activities” (Tr. 24, 575). The ALJ even quoted Dr. Dillard’s description of Plaintiff’s symptoms
a second time and stated:
Dr. Dillard noted in January 2011 that the claimant’s pain caused moderate limitations, and Dr.
Dillard noted in April 2011 that the claimant continued to have joint pain. However, Dr. Dillard
did not state that the claimant had experienced any worsening of her condition in the meantime,
and her examination showed no particular limitation. ... less weight must be given to Dr.
Dillard’s opinion.”
(Tr. 25). Further, the series of visits the ALJ cited include a visit on January 26, 2010 where Plaintiff
described pain in her arms prior to carpal tunnel surgery as an 8 on a scale of 1-10 (Tr. 429); a visit

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on November 16, 2010 where Plaintiff complained of sudden onset numbness that started two
months ago and “decreased sensation in her grip” (Tr. 436); and a visit on December 16, 2010 where
Dr. Dillard noted “[Plaintiff] presented with wrist pain. It is located on the left and on the right. It
is described as chronic.” (Tr. 572). The Court is concerned by the ALJ's mischaracterization of Dr.
Dillard’s medical record notations, which showed that Plaintiff complained of pain and numbness
in her arms and a limitation in gripping objects.
After discounting Dr. Dillard, the ALJ was left to rely on the opinions in the physical RFCs from
the state’s consulting physicians. This already is troubling. Courts have stated many times that the
results of a one-time medical evaluation do not constitute substantial evidence on which the ALJ can
permissibly base his decision. See, e.g., Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (stating
that the opinion of a consultative physician does not generally satisfy the substantial evidence
requirement). This is especially the case when the consultative physician is the only examining
doctor to contradict the treating physician. Id; Cox v. Barnhart, 345 F.3d 606, 610 (8th Cir. 2003).
What is more troubling is the ALJ next discounted the opinions from these physicians. In one
paragraph of the written decision, the ALJ wrote:
“the state agency consultants did not find that the claimant had any nonexertional limitations.
That opinion is not consistent with the evidence as a whole and is discounted. The evidence,
instead, supports finding that the claimant can do work at the light exertional level.”
(Tr. 24). And the ALJ wrote later, “the state agency medical consultants’s opinion is discounted
because it is not consistent with the record as a whole, and does not take into account the claimant’s
subjective complaints of pain.” (Tr. 28).3

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It’s not clear why the ALJ believes the State consulting physicians did not take into
account Plaintiff’s subjective complaints. As noted above, the first two physical RFC
assessments by Dr. Friedman pre-dated Plaintiff’s revised Function Report, but Dr. McCarron
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After discounting both the treating physician and the State’s consulting physicians’ opinions
about Plaintiff’s physical RFC, it is not clear why the ALJ adopted some of the limitations expressed
in these opinions and not others. The ALJ appears to have independently arrived at an RFC of light
work and searched the record for evidence to support his RFC determination. "An administrative law
judge may not draw upon his own inferences from medical reports." Nevland v. Apfel, 204 F.3d 853,
858 (8th Cir. 2000). Similarly, the ALJ is not allowed to selectively pick from evidence in the record
to support his preferred finding. Taylor v. Barnhart, 333 F. Supp. 2d 846, 856 (8th Cir. 2004) (Citing
Confere v. Astrue, 235 Fed. Appx. 701, 704 (10th Cir. 2007) ("The ALJ is not entitled to pick and
choose from a medical opinion, using only those parts that are favorable to a finding of nondisability")).
Plaintiff’s remaining arguments are that the ALJ should have provided a more individualized
RFC regarding Plaintiff’s mental limitations and failed to include additional limitations. The
objective medical record as well as Plaintiff’s subjective complaints showed that Plaintiff had
numbness in her arms and hands; that Plaintiff testified at the administrative hearing that she would
have difficulty lifting as much as five pounds (Tr. 59); that Dr. Dillard noted Plaintiff had abnormal
grip in both upper extremities and opined in a physical RFC assessment that Plaintiff could only
occasionally lift five pounds and rarely lift ten pounds (Tr.544); that a December 2010 nerve
conduction was abnormal and consistent with bilateral median mononeuropathy, moderate to severe,
slightly worse on the right than left (Tr. 489), and that Plaintiff had not had surgery to correct her
CTS on her left side. While the ALJ discussed Plaintiff’s manipulative limitations and ability to hold
objects (Tr. 24), these findings were not incorporated as limitations in the ALJ’s RFC determination.

evaluated Plaintiff’s updated subjective complaints when she affirmed Dr. Friedman’s decision.
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The ALJ only concluded that Plaintiff must avoid frequent rapid, repetitive flexion/extension of the
wrists bilaterally. (Tr. 22).
The Court notes that repetitive tasks that require bending of the wrists or grasping with the hands,
including typing, cutting, sewing, 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 October 24,
2014). It seems reasonable that an individual who has undergone corrective surgery for CTS might
need to avoid these activities, which do not just involve the rapid and repetitive use of their wrists.
On remand, the ALJ should reassess the limitations imposed by Plaintiff's CTS.
Finally, the ALJ did not properly account for Plaintiff’s mental limitations in the assigned RFC.
Dr. Kralik’s evaluation indicated that Plaintiff was mildly to moderately impaired in a number of
mental categories, and that Plaintiff’s most significant impairments were a moderate impairment in
“her ability to communicate and interact in a socially adequate manner” and a moderate impairment
in “her capacity to sustain persistence in completing tasks.” (Tr. 461). Dr. Chambers opined that
Plaintiff had a number of mild or moderate limitations, and that Plaintiff’s most significant
limitations were a marked limitation in her abilities “to remember detailed or complex instructions”
and “maintain concentration for extended periods of time.” (Tr. 587-590). As noted on the evaluation
form Dr. Chambers completed, marked means the limitation is one that “very seriously impairs the
ability to perform work activities by interfering with either social relations or occupation functioning
or sometimes both.” (Tr. 587). The ALJ’s RFC accounted for some of the limitations that Dr. Kralik
and Dr. Chambers identified, but did not account for Plaintiff’s limitation in her ability to maintain
concentration for extended times or sustain persistence in completing tasks. The ALJ should address
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these limitations on remand.
C. Step Five & Hypothetical Question:
In Step Five, the Commissioner was required to prove that Plaintiff retains the RFC to do other
kinds of work, and that other work exists in substantial numbers in the national economy that
Plaintiff is able to perform. Nevland, at 857 (8th Cir. 2000). The purpose of testimony from a VE
is for the ALJ to determine whether jobs exist for someone with claimant's precise disabilities.
Jelinek v. Bowen, 870 F.2d 457, 459 (8th Cir. 1989). It is generally accepted that VE testimony, in
response to a hypothetical question, is substantial evidence if the hypothetical sets forth the credible
impairments with reasonable precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992).
In this case, it is impossible to determine if the hypothetical question was based on a complete
set of Plaintiff’s abilities and limitations because the RFC was not based on substantial evidence.
Because the court is remanding this matter to the ALJ for further consideration of Plaintiff’s
limitations, the ALJ's hypothetical question and analysis may change.
D. Conclusion:
Accordingly, the Court finds that the ALJ's decision is not supported by substantial evidence,
and, therefore, the denial of benefits to the Plaintiff should be reversed and this matter should be
remanded to the Commissioner for further consideration.

/s/

J . Marschewski

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE
JUDGE

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