Dow v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on January 8, 2016. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

RALPH LANDON DOW

PLAINTIFF

V.

Civil No. 2:15-cv-02011-MEF

CAROLYN W. COLVIN, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Ralph Landon Dow, 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 Titles II and XVI of the Social Security Act (hereinafter
“the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). 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 his applications for DIB and SSI on July 10, 2012, alleging a disability onset
date of June 12, 20121, due to “rotator cuff problems, pinched back, nerves, and carpal tunnel”
problems. (T. 178-185, 186-189, 209) The Commissioner denied his applications initially on August
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Plaintiff filed an earlier application for DIB on February 19, 2010, which application was
denied at the hearing level on March 31, 2011 (T. 97-110), and a request for review by the
Appeals Council was denied on June 12, 2012 (T. 111-114). No further appeal was taken, and the
denial of that application is administratively final and not at issue in this case.
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3, 2012 (T. 119-121, 122-124), and denied them at reconsideration on November 7, 2012 (T. 129130, 131-133). Plaintiff requested an administrative hearing (T. 134-136), and the hearing was held
on June 27, 2013, before the Hon. Bill Jones, Administrative Law Judge (ALJ). (T. 27-64) Plaintiff
was present and represented by his attorney, Jim O’Hern. (T. 27, 29) Also present were Plaintiff’s
wife, Debra Dow, and Montie Lumpkin, a vocational expert (“VE”). (T. 29)
At the time of hearing, Plaintiff was 40 years old with a high school education. (T. 68) He
had past relevant work (”PRW”) experience as a heavy laborer installing septic tanks, as a delivery
truck driver, as a feed miller, and as a feed mill operator helper. (T. 60)
On September 19, 2013, the ALJ issued an unfavorable decision finding that Plaintiff’s
disorder of the right shoulder, bilateral carpal tunnel syndrome, osteoarthritis, disorder of the cervical
spine, diabetes mellitus, major depressive disorder, and anxiety disorder were severe, but did not
meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
(T. 14-16) After partially discrediting Plaintiff’s subjective complaints, the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to perform light work, except that:
“He can occasionally climb ramps and stairs but never climb ladders,
ropes, or scaffolds. He can occasionally balance, kneel, stoop, crouch,
and crawl. He can occasionally perform overhead reaching bilaterally.
He can perform frequent handling and fingering bilaterally. From a
mental standpoint, he can perform work limited to simple, routine,
and repetitive tasks, involving only simple, work related decisions,
with few, if any, work place changes and no more than incidental
contact with coworkers, supervisors, and the general public.” (T. 16)
With the help of the VE, the ALJ determined Plaintiff could not perform his PRW, but he
could perform the requirements of representative occupations such as food processing worker, e.g.
conveyor line bakery worker (DOT 524.687-022) and spice mixer (DOT 520.687-062), with 581

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such jobs in Arkansas and 9,242 jobs in the national economy; and, cutting and slicing machine
operators and tenders, e.g. box corner cutter (DOT 640.685-030) and processed film cutter (DOT
976.685-010), with 967 such jobs in Arkansas and 35,067 jobs in the national economy. (T. 20, 6162) The ALJ then found Plaintiff had not been under a disability as defined by the Act during the
relevant time period. (T. 20-21)
The Appeals Council denied Plaintiff’s request for review on November 14, 2014. (T. 1-6)
Plaintiff filed this action on January 15, 2015. (Doc. 1) This case is before the undersigned by
consent of the parties. (Doc. 5) Both parties have filed appeal briefs (Docs. 10, 11), and the case is
now ready for decision.
The Court has thoroughly reviewed the entire transcript. The complete set of facts and
arguments are presented in the parties’ briefs and the ALJ’s opinion, and they are repeated here only
to the extent necessary.
II. Applicable Law
This court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm the
ALJ’s decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761
F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, if after
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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, we must affirm the ALJ’s decision. Id.
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 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), 1382c(a)(3)(D). A Plaintiff must show that his disability, not
simply his impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her 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 or her 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 or her age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Only if he reaches the final stage 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(a)(4)(v), 416.920(a)(4)(v).
III. Discussion
Plaintiff states four issues on appeal: (1) the ALJ improperly found that Plaintiff did not have
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a combination of impairments that met or equaled a listing; (2) the ALJ erroneously discredited
Plaintiff and his witness; (3) the ALJ ignored a treating physician’s RFC assessment; and, (4) the
ALJ improperly determined that Plaintiff can perform a significant number of jobs in the national
economy. (Doc. 10, p. 2) Plaintiff’s argument, however, contains only three sections with these
headings: (1) severe impairments; (2) Plaintiff’s credibility; and, (3) past relevant work. (Doc. 10,
pp. 10-19) Plaintiff advances multiple different arguments within these three sections, but these
arguments reduce down to the critical issue of whether there is sufficient evidence to support the
ALJ’s RFC determination.
The Court is troubled by the ALJ’s RFC determination. RFC is the most a person can do
despite that person’s limitations. 20 C.F.R. §§ 404.1545, 416.945. A disability claimant has the
burden of establishing his or her RFC. Vossen, 612 F. 3d at 1016. “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.” Jones v. Astrue,
619 F.3d 963, 971 (8th Cir. 2010); Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Residual
functional capacity “is not the ability merely to lift weights occasionally in a doctor’s office; it is the
ability to perform the requisite physical acts day in and day out, in the sometimes competitive and
stressful conditions in which real people work in the real world.” McCoy, 683 F.2d at 1147.
Limitations resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R.
§§ 404.1545(a)(3), 416.945(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.” Miller v. Colvin, 784 F.3d 472,
479 (8th Cir. 2015) (citing 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
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the claimant’s ability to function in the workplace. Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir.
2012).
Plaintiff suffers from a torn rotator cuff in his right shoulder and bilateral carpal tunnel
syndrome. Treatment for these conditions dates back to at least October 2003. (T. 388) An MRI of
Plaintiff’s right shoulder on October 2, 2003 revealed a “probable focal but complete tear of the
supraspinatus tendon distally” and a “probable partial tear and/or tendonopathy in the infraspinatus
tendon.” (T. 395) X-ray of the right shoulder on September 9, 2003 showed mild degenerative
hypertrophic changes (marginal spurring) at the acromioclavicular joint. (T. 397) A nerve conduction
study performed on September 11, 2003 was abnormal and was consistent with bilateral carpal
tunnel syndrome, mild in degree, left being slightly worse than right. (T. 398) On October 21, 2003,
Dr. Michael Wolfe commented that, “I think he would benefit from surgical intervention there [right
shoulder],” and “he could ultimately need carpal tunnel release as well.” (T. 388) Plaintiff was
referred to another physician for discussion of possible surgical treatment of the shoulder. (T. 388)
The ALJ correctly noted there is no evidence of record that Plaintiff underwent any shoulder
surgery, and that Plaintiff continued to work at substantial gainful activity levels with the shoulder
and carpal tunnel conditions. (T. 17) Plaintiff explained that his employer would not let him off
work, and “there was no way I could afford to do it.” (T. 37) He described sharp pain in his shoulder
when he moves it, and that his arm “kind of gets like a wet noodle.” (T. 37) He testified that his
hands go numb, that he drops things, and he can’t hold onto things. (T. 38) He described aching pain
in his hands on a daily basis, made worse by activities such as driving, when the pain “gets real sharp
and numb, burns.” (T. 38) He drives no more than he has to, riding with his wife when they take their
son to school, because driving causes his hands to go numb. (T. 40) Plaintiff’s wife verified that she
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drives “all the time.” (T. 53-54)
During the relevant period, Plaintiff has continued to be treated for his shoulder pain and
numbness and pain in his hands. On July 3, 2012, Plaintiff reported numbness and pain in both
hands, dating back years, which he felt had not gotten any worse. (T. 313) During a return visit to
his physician on August 28, 2012, Plaintiff complained of worsening problems with his carpal tunnel
syndrome with “tingling and numbness in both hands with minimal use,” and that he was unable to
do much of anything with his hands. He requested further work up so he could have something done
to fix the problem. (T. 351) A positive Phalen’s test was noted, consistent with carpal tunnel
syndrome2. (T. 351) A nerve conduction study was ordered. (T. 352) The nerve conduction study was
performed on September 13, 2012, and it confirmed a moderate compromise of bilateral median
nerves across the wrists involving the sensory and motor components consistent with axonal loss3
and demyelination4. (T. 324) Compared to the nerve conduction study done on September 11, 2003,
which showed Plaintiff’s carpal tunnel syndrome to be mild in degree, the nerve conduction study
performed nine years later on September 13, 2012 revealed moderate compromise of Plaintiff’s
median nerves bilaterally. This diagnostic finding is consistent with Plaintiff’s reports that his
condition was worsening. When seen for follow up on September 27, 2012, Plaintiff was diagnosed

2

Phalen’s test is a provocative clinical test for carpal tunnel syndrome. See www.carpaltunnel.net/diagnosing/provocative (last accessed January 8, 2016).
3

Axonal neuropathy is a condition in which the nerve cells begin to function abnormally because
the axons are degenerating. The effects of the condition can be felt as tingling, burning,
weakness, numbness, or as loss of motor function. See www.wisegeekhealth.com/what-isaxonal-neuropathy.htm (last visited January 7, 2016).
4

A degenerative process that erodes away the myelin sheath that normally protects nerve fibers.
See www.medicinenet.com/script/main/art.asp?articlekey=11143 (last visited January 7, 2016).
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with carpal tunnel syndrome, and the plan was to refer him to UAMS for further evaluation and
treatment. (T. 350) There is no indication in the record that this was ever done.
Despite diagnostic studies confirming moderate bilateral carpal tunnel syndrome, a nonexamining State agency medical consultant, Charles Friedman, M.D., opined on November 5, 2012
that the medical evidence of record supported a non-severe finding. (T. 377) In part, his opinion was
based on activities of daily living (“ADL’s”) that are mis-characterized. Dr. Friedman notes that
Plaintiff “does meals and chores; walks, drives, and goes out alone; shops in stores and manages
funds.” Plaintiff actually reported, however, that he only sometimes helps his wife cook, heating
things up in a microwave; that while he tries to help out with chores, it takes him much longer to do
things as he has to stop and rest due to his symptoms; and, that his wife does “most all shopping.”
(T. 251) He also reported difficulty with personal care, that his “hands get numb, can’t hold anything
or feel what I’m doing with my hands,” and that his shoulders and arms “get real weak and throb
with pain.” (T. 248, 250) The ALJ did not specifically discuss Dr. Friedman’s opinion, but merely
stated that he “essentially concurs with the opinions of the state agency consultants.” (T. 19) Of
course, the opinion of a consulting physician who does not examine the Plaintiff does not generally
constitute substantial evidence. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999).
During an examination by Steve-Felix Belinga, M.D. on June 13, 2013, two weeks before
the administrative hearing, Plaintiff reported neck and shoulder pain and that “my hands are killing
me all the time.” (T. 427) Physical examination results were mostly normal, but Dr. Belinga
commented that “[i]t would be useful to get those test results [i.e., the 9/11/12 nerve conduction
study and 6/12/13 cervical spine MRI], in order to determine the degree of neuroforaminal narrowing
and/or spinal stenosis there might be.” (T. 430) In the meantime, Dr. Belinga recommended physical
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therapy exercises, as well as to encourage Plaintiff to make an attempt to lose weight. (T. 430)
Notably, he ordered the gradual increase of Gabapentin from 400 mg TID to 800 mg TID, and the
wearing of wrist splints as tolerated. (T. 430)
The ALJ concluded that Plaintiff’s musculoskeletal impairments and bilateral carpal tunnel
syndrome and their related limitations “are not severe to a degree that would limit activities beyond
the scope of the residual functional capacity as determined in this decision.” (T. 17, 18) Given the
evidence of record, the Court cannot agree that the ALJ’s RFC determination, including occasional
overhead reaching bilaterally and frequent handling and fingering bilaterally, is supported by
substantial evidence.
The Dictionary of Occupational Titles, § 559.687-074, 1991 WL 683797 (G.P.O.), defines
“occasionally” as any activity or condition existing “up to 1/3 of the time and/or up to 10 pounds of
force frequently,” and “frequently” as any activity or condition existing “from 1/3 to 2/3 of the time
and/or a negligible amount of force constantly.”
Although the ALJ summarized some of the medical evidence, nowhere in the ALJ’s decision
is there a narrative discussion of how Plaintiff’s moderate bilateral carpal tunnel syndrome, or the
torn rotator cuff in his right shoulder, affects his ability to do basic work related activities. The ALJ’s
conclusory statements that Plaintiff’s musculoskeletal impairments and bilateral carpal tunnel
syndrome and their related limitations “are not severe to a degree that would limit activities beyond
the scope of the residual functional capacity as determined in this decision” are insufficient. “[S]uch
an explanation does not provide a sufficient logical bridge between the medical evidence and the
RFC determination,” and “[i]t fails to either provide limits accounting for Plaintiff’s carpal tunnel
syndrome [and torn rotator cuff] or explain why Plaintiff’s carpal tunnel [or torn rotator cuff] does
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not limit [his] ability to work.” See, e.g., St. Clair v. Colvin, 2013 WL 4400832, at *2 (W.D. MO.,
Aug. 14, 2013). “[T]he decision does not discuss the degree to which Plaintiff can reach, handle,
finger, or feel objects.” Id.
Since several of the jobs the ALJ found Plaintiff could perform appear to involve some use
of the hands, e.g., conveyor line bakery worker, spice mixer, box corner cutter, and processed film
cutter (T. 20), and there is evidence in the record suggesting he has limited use of his hands, we
believe remand is necessary to allow the ALJ to develop the record further regarding the degree to
which Plaintiff can reach, handle and finger objects. See 20 C.F.R. § 404.944; Brissette v. Heckler,
730 F.2d 548 (8th Cir. 1984) (holding that the ALJ is under the affirmative duty to fully and fairly
develop the record).
Accordingly, we find that remand is necessary to allow the ALJ to reconsider the Plaintiff’s
RFC. On remand, he is directed to obtain orthopaedic and neurological evaluations, complete with
thorough RFC assessments, to determine the full extent of the limitations imposed by the Plaintiff’s
torn rotator cuff and carpal tunnel syndrome impairments. The ALJ should also re-contact Plaintiff’s
treating physicians, Dr. Shawn S. Miller and Dr. Steve-Felix Belinga, to request RFC assessments
from them.
Concerning vocational evidence, the ALJ should ask a vocational expert on remand about
the importance of the terms “occasional” and “frequent” as they relate to Plaintiff’s ability to reach
overhead, to handle and finger objects, and to perform any jobs in the national economy.
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
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sentence four of 42 U.S.C. § 405(g).
DATED this 8th day of January, 2016.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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