Smith v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on July 27, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TAMMY LYNN SMITH
Civil No. 10-3070
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration
Plaintiff, Tammy Lynn Smith, appeals to this Court from the decision of the Commissioner
of the Social Security Administration denying her application for supplemental security income
benefits (“SSI”), pursuant to §42 U.S.C. 405(g).
Plaintiff protectively filed her SSI application on October 4, 2005, alleging a disability onset
date of April 23, 2005, due to post-traumatic stress disorder (“PTSD”), carpal tunnel syndrome,
depression, arthritis, residuals from a wrist fracture, and attention deficit disorder. Tr.20, 65-66. At
the time of the application date, Plaintiff was thirty five (35) years old with a high school education.
Tr. 28, 71, 210. She has past relevant work as secretary, companion, apprentice, and nursing aide.
Tr. 28, 66-67, 76-83, 481-484.
Plaintiff’s application was denied at the initial and reconsideration levels. Tr. 36-37, 39-42.
At Plaintiff’s request, an administrative hearing was held on May 24, 2007. Tr. 471-498. Plaintiff
was present at this hearing and represented by counsel. Tr. 471-498. The ALJ rendered an
unfavorable decision on February 14, 2008, finding that Plaintiff was not disabled within the
meaning of the Social Security Act. Tr. 17-29. Subsequently, the Appeals Council denied Plaintiff’s
Request for Review on June 22, 2010, thus making the ALJ’s decision the final decision of the
Commissioner. Tr. 3-5. Plaintiff now seeks judicial review of that decision.
Plaintiff has a history of status post three left knee surgeries and four right ankle surgeries.
In 1995, Plaintiff fractured her right ankle after being thrown from a horse. Tr. 283-289. As a
result, she underwent orthopedic fixation using screws. Tr. 285-289, 334-338. Plaintiff developed
a nonunion at the lateral malleolus and in 1995, the medial malleolus screws were taken out and the
fibula was plated. Tr. 313, 350, 353. X-rays of Plaintiff’s right ankle, taken on January 2, 1996,
revealed an orthopedic fixation with plating and total healing of the fracture. Tr. 280. At this time,
Plaintiff underwent surgery to remove the fibula plate due to residual ankle pain and post-traumatic
arthritis. Tr. 281-282.
In January 1995, Plaintiff had a torn medial meniscus and torn anterior cruciate following
a severe injury several years before. Tr. 319. Plaintiff underwent reconstruction of the left anterior
cruciate ligament and a partial meninsectomy of her left knee. Tr. 319-320, 343-344. In 1997,
Plaintiff was involved in a motor vehicle accident, in which she fractured her right wrist and left
patella. Tr. 321-324, 355-357, 362-363. Plaintiff underwent a partial patellectomy with tendon
reattachment and closed reduction of her radius. Tr. 362-363, 369. X-rays of Plaintiff’s left knee,
taken in November 1997, revealed evidence of a medial collateral ligament fixation, old comminuted
patellar fracture, and a massive joint effusion. Tr. 322. Post-operative x-rays of Plaintiff’s wrist
showed good alignment. Tr. 314. Follow-up notes reveal that Plaintiff’s wrist fractured healed well
and her knee looked good. Tr. 326, 328.
In July 2001, Plaintiff presented to W. Scott Bowen, M.D., with complaints of right ankle
pain and weakness in her arms and legs. Tr. 382-383. On examination, Plaintiff had about half the
normal range of motion in her ankle. Tr. 382. X-rays confirmed deformity of the fibula from
previous fracture and tibial talar arthritis. Tr. 382. Dr. Bowen assessed Plaintiff with post-traumatic
arthritis of the ankle and referred Plaintiff to UAMS for consideration of ankle arthrodesis or a total
ankle replacement. Tr. 383.
In September 2001, Plaintiff saw Jonathan Craighead, M.D., an orthopaedic specialist, who
noted that Plaintiff had post-traumatic arthritis of the right ankle with malunion of the right lateral
malleolus and anterior and tibial talar osteophytes. Tr. 313-314. Dr. Craighead believed Plaintiff
was too young for a total ankle replacement and that ankle arthrodesis should only be considered
after all conservative measures have failed. Tr. 314. In October 2001, Plaintiff had osteophytes
removed from her right ankle. Tr. 299-305. In June 2004, Plaintiff re-injured her right ankle. Tr.
276. X-rays revealed a partially healed old fracture with no new fractures. Tr. 276.
From January through March 2005, Plaintiff was treated by Mike C. Hendren, M.D., for
anxiety. Tr. 133-136. On January 4, 2005, Plaintiff complained of anxiety related to her son. Tr.
135. Dr. Hendren diagnosed Plaintiff with situational anxiety disorder and prescribed Effexor and
Xanax. Tr. 135. In February 2005, after complaining of visual disturbances, Plaintiff was switched
from Effexor to Wellbutrin. Tr. 136. Dr. Hendren noted that she scored high on a attentiondeficit/hyperactivity disorder (“ADHD”) questionnaire. Tr. 134. Plaintiff also complained of
arthralgia in her left knee and right ankle, for which Dr. Hendren prescribed Naprosyn. Tr. 134. In
March 2005, Dr. Hendren switched Plaintiff to Cymbalta and encouraged Plaintiff regarding her new
position as a personal care aide. Tr. 133.
On September 2, 2005, Plaintiff presented to Rural Health Clinic of Newton County with
complaints of right ankle pain. Tr. 246. She was assessed with severe post-traumatic arthritis of the
right ankle and depression. Tr. 246.
Plaintiff was referred to Arkansas Counseling Associates for counseling. Tr. 137-223, 385417. In September 2005, Plaintiff was initially diagnosed with ADHD, predominantly inattentive,
and given a Global Assessment of Functioning (“GAF”) score of 45. Tr. 221-223. She reported past
abuse by her sister and current family problems with her son. Tr. 209. Plaintiff was placed in
individual counseling with Barb Kelly, a licensed social worker. Tr. 207. She was given a good
prognosis with continued treatment. Tr. 207. In late September, Mark Brown, M.D., diagnosed
Plaintiff with PTSD and major depression, for which she was prescribed Lexapro. Tr. 193-194, 214.
On examination, Plaintiff was oriented times four and had good insight, appropriate
attention/concentration, and normal memory/recall. Tr. 193. Dr. Brown noted that Plaintiff’s mood
was dysthymic and she was tearful, but remained cooperative. Tr. 193.
In October 2005, Plaintiff reported that she was feeling better, accomplishing things, and
making friends, although her progress in meeting therapy goals was slower. Tr. 192. In November
2005, Ms. Kelly noted that Plaintiff’s medication seemed to be helping and she was not experiencing
any side effects. Tr. 184-187. Her mood had improved, but she still reported trouble finishing tasks
and focusing. Tr. 184. In an illness assessment, Sarah Robertson, M.D., noted that Plaintiff was
“moderately ill” and had experienced minimal improvement from treatment. Tr. 184. As a result,
Dr. Robertson increased Plaintiff’s dosage of Lexapro. Tr. 184. On November 14, 2005, Plaintiff
was feeling very positive. Tr. 183. In December 2005, Plaintiff was still experiencing flashbacks
of her childhood abuse. Tr. 179. In a three month treatment plan review, Plaintiff’s estimated GAF
score was 50. Tr. 172.
In January 2006, Plaintiff reported that she was better able to manage her children and had
improved ADHD symptomology while taking medication. Tr. 165. She did, however, report some
social anxiety although her overall anxiety and anger levels had improved. Tr. 162-163. She also
reported an improvement in her ability to cope with family matters. Tr. 161. After complaining of
being too sleepy, Plaintiff stopped taking her medication, which had a negative effect. Tr. 156-157.
In March 2006, Plaintiff reported feeling less depressed. Tr. 155. At her six month review, Plaintiff
was given a GAF score of 50. Tr. 148. Dr. Brown noted that Plaintiff’s mental status examination
was unremarkable and her main interest was getting a form filled out for her disability lawyer. Tr.
314. He found that Plaintiff was “moderately ill” and had minimally improved with treatment. Tr.
144. He also noted that Plaintiff had taken a variety of antidepressants, but had adverse reactions
to all of them. Tr. 144. Dr. Brown changed Plaintiff’s diagnoses to major depressive disorder,
recurrent, moderate, and PTSD. Tr. 144. In May 2006, Plaintiff reported that Christopher Winslow,
M.D., had changed her medication and she was feeling much better. Tr. 138. She reported having
recently moved to “a great cabin in the woods.” Tr. 138. Plaintiff’s insight was good, her
attention/concentration was appropriate, and her thought processes were intact. Tr. 137.
On January 25, 2006, Plaintiff had a consultative physical examination performed by
Shannon Brownfield, M.D. Tr. 224-230. Plaintiff reported a history of three surgeries to her left
knee and four surgeries to her right ankle. Tr. 224. She experienced arthritis pain and PTSD. Tr.
224. She was taking Lexapro and Salsalate. Tr. 224. On examination, Plaintiff had normal range
of motion in her cervical and lumbar spine, shoulders, elbows, wrists, hands, hips, and knees. Tr.
227. However, dorsiflexion was limited to 15 degrees in her right ankle and plantar flexion was
limited. Tr. 227. Dr. Brownfield noted that it was obvious Plaintiff had multiple surgeries to her
left knee, as her patella was deformed. Tr. 228. She also noted that Plaintiff limped due to her left
knee. Tr. 228. Plaintiff’s reflexes were normal and she exhibited no muscle weakness or atrophy
and no sensory abnormalities. Tr. 228. Limb function was normal except that Plaintiff could not
walk on her heels and toes on the right and could not squat and arise from a squatting position. Tr.
228. Plaintiff’s pulses were normal. Tr. 229. X-rays of Plaintiff’s left knee revealed mild
degenerative joint disease with narrowing and mild osteoarthritic changes. Tr. 229. X-rays of
Plaintiff’s right ankle revealed severe osteoarthritic changes. Tr. 229. Dr. Brownfield diagnosed
Plaintiff with osteoarthritis of the left knee, severe osteoarthritis of the right ankle, and PTSD. Tr.
230. She indicated that Plaintiff would be severely limited in her ability to twist her legs, lift, and
kneel, and moderately limited in her ability to walk/stand for a prolonged period of time. Tr. 230.
On January 27, 2006, Plaintiff saw W. Charles Nichols, Psy.D., for a consultative mental
evaluation. Tr. 231-235. She related a history of ADHD, depression, panic attacks, and PTSD, for
which she took Lexapro. Tr. 231. She denied a history of inpatient psychiatric hospitalization or
suicide attempts. Tr. 231. On examination, Plaintiff was alert and oriented and had good social
skills, although mild signs of anxiety were noted. Tr. 232. No problems in mental process or
activity were noted. Tr. 232. Plaintiff denied visual hallucinations, but reported hearing voices. Tr.
232. She reportedly had two panic attacks per week. Tr. 233. She also reported depression,
childhood flashbacks, insomnia (improved on medication), trouble concentrating, and a fear of going
out in public. Tr. 233.
After administering intellectual functioning tests, Dr. Nichols estimated Plaintiff’s
intelligence to be average to above average. Tr. 233. Dr. Nichols found no significant limitations
in the area of concentration, persistence, and pace, and he observed no physical limitations during
the interview. Tr. 234. Plaintiff reported her daily chores as making the bed, washing laundry,
cleaning the house, vacuuming, and sweeping. Tr. 234. She stated that her daughter prepares most
meals and also grocery shops because she does not like going out. Tr. 234. Dr. Nichols diagnosed
Plaintiff with PTSD, chronic, major depressive disorder, recurrent, moderate, and panic disorder with
agoraphobia. Tr. 234. He estimated Plaintiff’s GAF score at 52. Tr. 234. Dr. Nichols found that
Plaintiff was able to understand and recall simple to moderately complex direction sequences, but
opined that her social and public avoidance would affect her capacity to work with others. Tr. 234.
He determined Plaintiff would function best in a job with limited social contact. Tr. 234.
In a Psychiatric Review Technique completed on February 9, 2006, Jay Rankin, M.D., found
that Plaintiff did not meet the criteria for Listings 12.04 (affective disorders) and 12.06 (anxietyrelated disorders). Tr. 248-265. In a Mental Residual Functional Capacity (“RFC”) Assessment, Dr.
Rankin found that Plaintiff was moderately limited in her ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances, work in
coordination with or proximity to others without being distracted by them, 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, interact appropriately
with the general public, accept instructions and respond appropriately to criticism from supervisors,
get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness.
Tr. 262-263. He found no other significant limitations. Tr. 262-263.
In a Physical RFC Assessment dated June 21, 2006, Jerry L. Thomas, M.D., found that
Plaintiff had the RFC to occasionally lift/carry 10 pounds, frequently lift/carry less than 10 pounds,
stand/walk at least 2 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and
push/pull within those limitations. Tr. 266-273. Dr. Thomas found no postural, manipulative,
visual, communicative, or environmental limitations. Tr. 268-270.
In October 2006, Plaintiff re-established care with Arkansas Counseling. Tr. 386-417.
Plaintiff was experiencing anxiety and flashbacks, and noted that she could not concentrate or focus.
Tr. 386, 396. She also expressed fear about her sister getting out of prison. Tr. 386. Plaintiff
reported her daily activities as reading, cleaning, and talking to her children. Tr. 408. On
examination, Plaintiff’s mood was appropriate, her thought processes were clear and organized, and
her perception was normal. Tr. 400-401. She was oriented times four and her recent memory and
insight were intact. Tr. 401. She denied any suicidal or homicidal ideation. Tr. 401. She was
assessed with PTSD and ADHD. Tr. 388, 402. Dr. Robertson estimated Plaintiff’s GAF score at
50. Tr. 388. As of November 2006, Plaintiff was not taking any medication. Tr. 415. She reported
anxiety, which was not daily. Tr. 416. Dr. Winslow diagnosed Plaintiff with major depressive
disorder, partial remission, and generalized anxiety disorder. Tr. 417. He determined Plaintiff’s
illness was “mild” and prescribed Lexapro. Tr. 417. In December 2006 and February 2007,
Plaintiff’s progress was rated at a three out of five. Tr. 432, 435.
In a Medical Source Statement dated February 23, 2007, Barb Kelly, Plaintiff’s counselor,
found that Plaintiff was markedly limited in her ability to respond appropriately to changes in the
work setting and moderately limited in her ability to maintain attention and concentration for
extended periods, 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, ask simple questions or request assistance, accept instructions and respond
appropriately to criticism from supervisors, and maintain socially appropriate behavior and adhere
to basic standards of neatness and cleanliness. Tr. 423-425. Ms. Kelly found mild limitations in five
work-related categories and no significant limitations in nine work-related categories. Tr. 423-425.
She noted that Plaintiff had anxiety attacks and flashbacks that could be triggered at any time or
place. Tr. 425. She also noted that medication restraints had not been successful. Tr. 425.
In a Medical Source Statement dated March 2, 2007, Dr. Winslow found that Plaintiff was
moderately limited in her ability to work in coordination with or proximity to others without being
unduly distracted by them, 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, interact appropriately with the general public, accept instructions and respond
appropriately to criticism from supervisors, get along with co-workers or peers without unduly
distracting them or exhibiting behavioral extremes, and travel in unfamiliar places or use public
transportation. Tr. 419-421. He found mild limitations in ten work-related categories and no
significant limitations in two categories. Tr. 419-421.
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 since
October 4, 2005, the application date. Tr. 22. At step two, the ALJ found that Plaintiff suffered
from mood disorder and right ankle disorder and associated pain, which were considered severe
impairments under the Act. Tr. 22. At step three, he determined Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a listed impairment. Tr.
22-23. At step four, the ALJ found that Plaintiff had the RFC to perform unskilled work where she
could lift/carry a maximum of ten pounds occasionally and five pounds frequently, stand/walk for
about two hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. Tr.
23-27. Additionally, the ALJ determined Plaintiff must not interact with co-workers beyond
receiving work instructions. Tr. 23-27.
Based on this RFC, the ALJ determined Plaintiff could not perform her past relevant work.
Tr. 28. However, after submitting interrogatories to a vocational expert, the ALJ determined there
were sedentary, unskilled jobs existing in significant numbers in the national economy that Plaintiff
could perform, including representative occupations such as small production machine operator, of
which there are 500,000 jobs nationally and 4,000 jobs locally, small product assembler, of which
there are 140,000 jobs nationally and 3,500 jobs locally, and production inspector, of which there
are 36,500 jobs nationally and 800 jobs locally. Tr. 28-29, 116-122. Accordingly, the ALJ
determined Plaintiff had not been under a disability, as defined by the Social Security Act, at any
point from October 4, 2005, through February 14, 2008. Tr. 29.
Plaintiff contends the ALJ erred by: (1) failing to find post-traumatic arthritis of her left knee
to be severe; and (2) determining she could perform work that is available in significant numbers in
the national economy. See Pl.’s Br. 2-9.
A. Severe Impairments
Plaintiff contends the ALJ erred in failing to find her knee impairment to be severe. See Pl.’s
Br. 2-3. This court agrees. Step two of the regulations involves a determination, based on the
medical evidence, whether the claimant has an impairment or combination of impairments that is
severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe impairment is one which
significantly limits a claimant’s physical or mental ability to perform basic work activities. 20
C.F.R. § 404.1520(c). The sequential evaluation process may be terminated at step two only when
the claimant's impairment or combination of impairments would have “no more than a minimal
impact on her ability to work.” Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.2001), citing
Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir.1996). Although the Plaintiff has the burden of
establishing a severe impairment or impairments, the burden at this stage is not great. Caviness, 250
F.3d at 605.
The ALJ’s failure to identify Plaintiff’s knee impairment as severe was not harmless error.
As noted by the Eighth Circuit, the standard for determining whether a claimant suffers from a severe
impairment is a low or de minimus standard. See Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007)
(reversing the decision of the ALJ and holding that a diagnosis of borderline intellectual functioning
should be considered severe when that diagnosis is supported by sufficient medical evidence). Here,
Plaintiff’s knee impairment is supported by the medical evidence of record. She had a total of three
surgeries on her left knee. 224. In 1995, she underwent reconstructive surgery and had a partial
meninsectomy of her left knee. Tr. 319-320, 343-344. In 1997, Plaintiff fractured her left patella
and subsequently underwent a partial patellectomy with tendon reattachment. Tr. 362-363, 369. At
a consultative examination conducted on January 25, 2006, Dr. Brownfield noted that Plaintiff’s left
patella was deformed and she limped due to her left knee. Tr. 228. X-rays of Plaintiff’s left knee
revealed mild degenerative joint disease with narrowing and osteoarthritic changes. Tr. 299. Dr.
Brownfield assessed Plaintiff with osteoarthritis of the left knee and noted that Plaintiff would be
severely limited in her ability to twist her legs, lift, and kneel, and moderately limited in her ability
to walk/stand, due to her right ankle and left knee impairments. Tr. 230. While these records do not
establish that Plaintiff is disabled due to her knee impairment, they do provide sufficient evidence
to satisfy the low or de minimus standard for a severe impairment. As such, this case must be
reversed and remanded for further consideration.
B. Residual Functional Capacity
Although this case is remanded for other reasons, the court feels obligated to address
Plaintiff’s remaining argument. Plaintiff contends the ALJ erred by giving controlling weight to the
opinions of Dr. Winslow, Ms. Kelly, and Dr. Nichols, but not including the specific mental
limitations assessed by each of these sources. See Pl.’s Br. 4-9. This argument is unpersuasive.
The ALJ gave controlling weight to the overall opinions of Dr. Nichols, Dr. Winslow, and
Ms. Kelly to the extent they found that Plaintiff was limited in her social interactions but not totally
disabled. Tr. 26-27. At no point did the ALJ indicate that he agreed with each of these sources
regarding Plaintiff’s mental limitations and their respective severity in each work-related category.
A review of the evidence reveals that the ALJ gave great weight to the opinions of these medical and
other sources in determining Plaintiff’s overall mental RFC. While the court finds no error in this
analysis, there is some ambiguity regarding the very detailed hypothetical questions posed to the
vocational expert (“VE”) and the ultimate RFC adopted by the ALJ. Tr. 23, 115-122. It is unclear
from the opinion whether the ALJ inadvertently or purposely excluded the specific hypothetical
limitations listed in the VE interrogatories. This ambiguity should be addressed on remand.
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 27th day of July 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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