Hill v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 24, 2014. (tg)

THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
MICHAEL D. HILL

PLAINTIFF

v.

Civil No. 13-3078

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Michael D. Hill, 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
disability insurance benefits (“DIB”) Title II (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 applied for DIB on November 12, 2010. (Tr. 9.) Plaintiff alleged an onset date of April

22, 2010 due to right wrist problems (carpal tunnel, tendonitis, infection), “spars in neck,” and depression.
(Tr. 127.) Plaintiff’s applications were denied initially and on reconsideration. Plaintiff requested an
administrative hearing, which was held on November 9, 2011 in front of Eliaser Chaparro. (Tr. 24.)
Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony from
Jennifer Hill (Plaintiff’s wife) and Vocational Expert (“VE”) Diane Smith. (Tr. 24.)
At the time of the administrative hearing, Plaintiff was 32 years old, and possessed a high school
diploma, special education track. He also had votech training in welding. (Tr. 28.)The Plaintiff had past
relevant work experience (“PRW”) of trailer welder, hand sander, hand trimmer, construction worker, and
sawmill laborer. (Tr. 18.)

1

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 April 13, 2012, the ALJ concluded that Plaintiff suffered from the following severe
impairments: cervical degenerative disc disease (mild), and right carpal tunnel syndrome; status post carpal
tunnel release; and obesity. (Tr. 11.) The ALJ found that Plaintiff maintained the residual functional
capacity to perform light work with no mental limitations and “no frequent grasping, or handling with
the right upper extremity.” (Tr. 13.)
With the assistance of the VE, the ALJ determined that the Plaintiff could perform such
representative occupations as bakery line worker and machine tender. (Tr. 19.)
Plaintiff requested a review by the Appeals Council on April 24, 2102. (Tr. 5.) The Appeals
Council declined review on July 15, 2013. (Tr. 1.) Plaintiff filed this appeal on August 6, 2013. ( ECF.
No. 1.) Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 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. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Substantial evidence
is less than a preponderance, but enough that a reasonable mind would find it adequate to support the
Commissioner’s decision. Id. “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.” Id. As long as there is substantial evidence in the record to support the Commissioner’s
decision, the court may not reverse the decision simply because substantial evidence exists in the record
to support a contrary outcome, or because the court would have decided the case differently. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent
positions from the evidence, and one of those positions represents the Secretary’s findings, the court must
affirm the decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that 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

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that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001); see 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 disability, not simply his 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 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
Plaintiff raises two issues on appeal: 1) the ALJ’s RFC is not supported by substantial evidence

because “the questioning and testimony of the vocational expert essentially revealed that no jobs existed
that Michael can perform with one useful, non-dominant upper extremity;” and 2) the ALJ erred by failing
to consider medication side effects in his credibility analysis. (Pl.’s Br. 14.) Because the only Physical RFC
in the record predates Plaintiff’s diagnosis of MRSA-induced osteomyelitis and septic arthritis, and
because the ALJ deducted limitations from this RFC without explanation, the other issues will not be
addressed.

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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). “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).
Although the ALJ is responsible for determining claimant’s Overall RFC, 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, a claimant’s RFC assessment “must be based on medical evidence that
addresses the claimant's ability to function in the workplace.”“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).
Instead, the ALJ should seek opinions from a claimant’s treating physicians or from consultative examiners
regarding the claimant’s mental and physical RFC. Id.; Strongson v. Barnhart, 361 F. 3d 1066, 1070 (8th
Cir. 2004.) Limitations resulting from symptoms such as pain are also factored into the assessment. 20
C.F.R. § 404.1545(a)(3). Further, VE “[t]estimony based on hypothetical questions that do not encompass
all relevant impairments cannot constitute substantial evidence to support the ALJ's decision.” Rappoport
v. Sullivan, 942 F.2d 1320, 1323 (8th Cir.1991) (citing Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.
1994)).
In this case, Plaintiff suffered an injury to his right hand at work on April 22, 2010. (Tr. 343.)
He was found to have severe carpal tunnel syndrome as well as de Quervain tendonitis. (Tr. 351.) After
surgery to effect a de Quervain release and carpal tunnel release, he suffered recurrent infections that did
not respond to oral antibiotics. (Tr. 348.) He underwent several deep surgical irrigation and debridements

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in a six month period. (Tr. 346, 349, 365.) It was ultimately determined that he had MRSA-induced
osteomyelitis and septic arthritis by infectious disease specialist Dr. Stephen Hennigan on January 3, 2011.
(Tr. 365, 367.) He was admitted to the hospital in order to be placed on IV antibiotics. (Tr. 366.) It was
noted that he “may suffer some ongoing arthritis issues.” (Tr. 368.) After the IV course was completed on
February 14, 2011, he was placed on “ a few months of suppressive Bactrim” due to the chronicity of the
problem. (Tr. 369.)
“Osteomyelitis is inflammation and destruction of bone caused by bacteria, mycobacteria, or fungi.
Common symptoms are localized bone pain and tenderness with constitutional symptoms (in acute
osteomyelitis) or without constitutional symptoms (in chronic osteomyelitis). This condition “tends to
occlude local blood vessels, which causes bone necrosis and local spread of infection.”
www.merckmanuals.com/professional/musculoskeletal_and_connective_tissue_disorders/infections_of
_joints_and_bones/osteomyelitis.html?qt=osteomyelitis&alt=sh (accessed Nov. 24, 2014). “Despite the
use of surgical debridement and long-term antibiotic therapy, the recurrence rate of chronic osteomyelitis
in adults is about 30 percent at 12 months.” http://www.aafp.org/afp/2011/1101/p1027.html (accessed
Nov. 24, 2014).
Septic arthritis occurs when “[i]nfecting organisms multiply in the synovial fluid and synovial
lining. Phagocytosis of bacteria also results in PMN (polymorphonuclear leukocyte) autolysis with release
of lysosomal enzymes into the joint, which damage synovia, ligaments, and cartilage. Therefore, PMNs
are both the major host defense system and the cause of joint damage.” http://www.merckmanuals.com/
professional/musculoskeletal_and_connective_tissue_disorders/infections_of_joints_and_bones/acute_
infectious_arthritis.html?qt=septic%20arthritis&alt=sh. (accessed Nov. 24, 2014.) The joint can be
“permanently damaged within hours or days.” Id.
The only Physical RFC assessment in the record was completed by non-examining Agency
Physician Dr. Karmen Hopkins on December 29, 2010, several days prior to Plaintiff’s osteomyelitis and

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septic arthritis diagnosis. (Tr. 353-356.) For this RFC, Dr. Hopkins expressly noted “no signs of
osteomyelitis or septic arthritis.” (Tr. 356.) Therefore her RFC assessment was based on a diagnosis that
did not include these conditions. Even without the osteomyelitis and septic arthritis, her assessment found
that Plaintiff was limited in all manipulative activities (reaching, handling, fingering, feeling) in the right
hand. Dr. Hopkins further stated that the Plaintiff could use his “right upper extremity as assistive device
only.” (Tr. 360.)
The ALJ gave Dr. Hopkins RFC great weight and found that it was consistent with the medical
record of evidence. (Tr. 17.) This was error in that the RFC did not include all of Plaintiff’s impairments.
This error was compounded when the ALJ did not include all of the manipulative restrictions or the “right
upper extremity as assistive device” restriction from this Physical RFC in his Overall RFC assessment.
There is no explanation for removing these limitations.
Nor was the omission of the “right upper extremity as assistive device limitation” a harmless error
in opinion-writing which would not affect the outcome of the case. See Byes v. Astrue, 687 F.3d 913, 917
(8th Cir. 2012) ("To show an error was not harmless, [the Plaintiff] must provide some indication that the
ALJ would have decided differently if the error had not occurred.") The first hypothetical asked was the
one ultimately adopted by the ALJ in his opinion. When the ALJ added the “right upper extremity as
assistive device limitation” to a second hypothetical, along with other impairments,2 the response was that
there would be no work. (Tr. 65.)
In summary, the ALJ relied upon a Physical RFC which did not include all of Plaintiff’s
impairments, and then further compounded the error by deducting manipulative limitations from that
Physical RFC without explanation. This requires a remand.

2

Unfortunately, the ALJ did not provide a hypothetical which only added the right upper extremity as
assistive device limitation.

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On remand, the ALJ is directed to obtain a Physical RFC Assessment which incorporates all of
Plaintiff’s impairments, preferably from a treating or examining physician. This RFC must explicitly
address Plaintiff’s ability to function in the workplace. Any changes to Plaintiff’s RFC must then be
addressed to the VE. It is also recommended that the record be more fully developed as to Plaintiff’s pain
profile.
IV.

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).

DATED this 24th day of February 2014.

J. Marschewski

/s/

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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