Anderson v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 3, 2014. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Carla Anderson, 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) partially denying her claims for a period of disability and disability insurance
benefits (DIB) and supplemental security income (SSI) under the provisions of Titles II and XVI
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).
Plaintiff protectively filed her applications for DIB and SSI on April 21, 2010, alleging
an inability to work since April 14, 2009, due to an injury to her left shoulder, depression,
anxiety, and high blood pressure. (Tr. 131-135, 138-139, 168, 172). An administrative hearing
was held on July 26, 2011, at which Plaintiff appeared with counsel and testified. (Tr. 32-71).
By written decision dated June 25, 2012, the ALJ found that from April 14, 2009 through
December 19, 2010, Plaintiff had the following severe impairments: left shoulder degenerative
joint disease/impingement bursitis/adhesive capsultis status post surgery (x 2); hypertension;
bipolar disorder/major depressive disorder/adjustment disorder/depressive disorder not otherwise
specified (NOS); panic disorder/post-traumatic stress disorder/anxiety disorder NOS; pain
disorder; and borderline personality disorder. (Tr. 15). However, the ALJ found that from April
14, 2009 through December 19, 2010, Plaintiff did not have an impairment or combination of
impairments that met or equaled the level of severity of any impairment listed in the Listing of
Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 15). The ALJ also found
that from April 14, 2009 through December 19, 2010, Plaintiff had the residual functional
capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant could lift no more than 5 pounds with her dominant
upper extremity; the claimant could perform no more than occasional
pushing and pulling with the left upper extremity; the claimant could lift
no more than ½ pound with her left upper extremity with the elbow at the
side; the claimant could perform no lifting above waist level with her left
upper extremity; and the claimant could perform work where
interpersonal contact is incidental to the work performed, the complexity
of tasks is learned and performed by rote, with few variables and where
little judgment is required, and where the supervision required is simple,
direct, and concrete.
(Tr. 16). The ALJ found that from April 14, 2009 through December 19, 2010, Plaintiff was
unable to perform any past relevant work and that there were no jobs that existed in significant
numbers in the national economy that Plaintiff could have performed, and that Plaintiff was
under a disability from April 14, 2009 through December 19, 2010. (Tr. 19).
In the same decision, the ALJ found that beginning on December 20, 2010, Plaintiff had
not developed any new impairment or impairments, and that her current severe impairments
were the same as those present from April 14, 2009 through December 19, 2010. (Tr. 19). The
ALJ reported that beginning December 20, 2010, Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listing. (Tr. 19). The ALJ further
found that medical improvement occurred and Plaintiff’s disability ended as of December 20,
2010. (Tr. 21). The ALJ found that beginning on December 20, 2010, the Plaintiff had the RFC
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can only occasionally work overhead with her
nondominant upper left extremity; the claimant can occasionally push
and pull with her upper left extremity; and the claimant can perform work
where interpersonal contact is incidental to the work performed, the
complexity of tasks is learned and performed by rote, with few variables
and where little judgment is required, and where the supervision required
is simple, direct, and concrete.
(Tr. 22). With the help of a vocational expert (VE), the ALJ determined that beginning
December 20, 2010, Plaintiff was capable of performing past relevant work as a cashier. (Tr. 25).
The ALJ therefore concluded that Plaintiff’s disability ended December 20, 2010. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
considered additional evidence and denied that request on August 6, 2013. (Tr. 1-5).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant
to the consent of the parties. (Doc. 5). Both parties have filed appeal briefs and the matter is now
ripe for consideration. (Docs. 8, 10).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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. Barnard, 292 F. 3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnard, 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 her disability by establishing a physical or mental disability that has lasted at least
one year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§423(d)(3),
1382(3)(D). A Plaintiff must show that her disability, not simply her 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 had engaged in substantial
gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or
equaled an impairment in the listings; (4) whether the impairment(s) prevented the claimant from
doing past relevant work; and (5) whether the claimant was able to perform other work in the
national economy given her age, education, and experience. See 20 C.F.R. §416.920. Only if
the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1) Whether there is substantial evidence
to support the ALJ’s decision that Plaintiff is not disabled after December 20, 2010; and 2)
Whether the ALJ erred in finding that Plaintiff’s condition had medically improved as of
December 20, 2010. (Doc. 8).
The Court recognizes the ALJ utilized the eight-step evaluation process for determining
continuing disability. (Tr. 13-15). However, it was not necessary to do so, because when in a
single proceeding, the fact of disability, the extent of the disability, and the duration of the
disability are all determined, the case is not a medical improvement case. Camp v. Heckler, 780
F.2d 721, 721-722 (8th Cir. 1986); Morrison v. Colvin, 2014 WL 668920 at n.3 (W.D. Ark., Feb.
20, 2014). Therefore, the Court’s role at this stage is to determine whether substantial evidence
supports the ALJ’s decision that Plaintiff had the RFC to perform substantial gainful activity as
of December 20, 2010.
As a result of an injury Plaintiff incurred as a health aide in 2009, on September 2, 2009,
Plaintiff underwent shoulder surgery by Dr. Joseph Ricciardi. (Tr. 471-481). By September 22,
2009, Dr. Ricciardi reported that Plaintiff’s shoulder wound was healing well. (Tr. 290).
However, on October 16, 2009, Plaintiff complained to Dr. Ricciardi of snapping and popping
in her left shoulder and two areas of her wound where something seemed to be sticking out. (Tr.
288). Dr. Ricciardi noted that Plaintiff had missed a lot of physical therapy due to flooding in
her neighborhood, and that she needed additional physical therapy. (Tr. 288). By January 15,
2010, Dr. Ricciardi recommended a consultation from Dr. Miles Johnson for EMG’s and nerve
conduction studies from the neck to the fingertips. (Tr. 283). On February 17, 2010, Plaintiff was
examined by Dr. Johnson, who found that Plaintiff’s symptoms were somewhat improved with
a TENS unit and pain pills (Tr. 304), and that her motor skills in the upper extremities were
grossly intact except for 4/5 strength noted in the left upper extremity. (Tr. 305). There was
shoulder pain with resisted abduction, there was no obvious atrophy, and tone was normal. (Tr.
305). The nerve conduction studies were performed on the left median and ulnar motor nerves,
and revealed normal distal latencies, amplitudes, and conduction velocities. (Tr. 305). The EMG
examination of the left upper extremity was significant for abnormal complex repetitive
discharges being noted in the left supraspinatus, and the paraspinal examination was
unrevealing. (Tr. 305). His impression was:
Electrodiagnostic study is suggestive of a diagnosis of an incomplete left
brachioplexopathy versus C5-6 radiculopathy. Paraspinal examination
was unrevealing at this time, so I am unable to put the level of the lesion
at the cervical spine with certainty. At this time, there is no evidence of
generalized peripheral neuropathy or peripheral nerve entrapment
syndrome or injury such as median or ulnar neuropathies.
(Tr. 305). On February 28, 2010, Dr. Ricciardi opined that Plaintiff may have reached maximum
benefits of orthopaedic treatment at that time, and that after her neurology assessment she may
be unable to return to her work as a CNA and would probably benefit from a functional
evaluation. (Tr. 280).
On May 25, 2010, Dr. Michael W. Morse, of Neurological Associates, found that
Plaintiff had significant limitation of range of motion of her left shoulder and tenderness to
palpation of the left shoulder. (Tr. 265). His impression was:
This patient has a musculoskeletal neck and shoulder injury that was
made worse with surgical intervention. I do not really appreciate any
evidence of a cervical plexopathy on her exam. She had some minor
changes in her supraspinatus muscle on the left, but normal reflexes. It
is difficult to assess her strength because of give-way weakness. She has
a minimal temperature difference between the palms of both hands and
no significant trophic changes or skin changes in the upper extremity on
I would like to get a MRI of the cervical spine to make sure there is not
an underlying disc herniation. If there is, I would recommend PT on her
neck and perhaps epidural steroids.
If there is not, it might be worthwhile to refer her to the pain clinic to see
if they can give her anything to benefit her. I do not think there is any
RSD given the lack of significant temperature changes, trophic changes,
or tenderness to light touch.
Unfortunately, PT on her shoulder seems to make things worse. She is
going to have follow-up with her orthopedist for a final rating on her
shoulder and to see if he has anything else to offer her.
I will see her back after her scan today.
(Tr. 265). In an Addendum, Dr. Morse stated that Plaintiff came back from the MRI, and that
she did have some spondylitic changes on the left at C6-7. (Tr. 266). He further reported that this
did not correspond to the amount and type of pain she was having in her cervical spine. The MRI
was reviewed with the case manager, Debbie Blaylock, and Plaintiff. His recommendation was
that Plaintiff follow-up with her orthopedist as he thought the majority of her pain was coming
from the musculoskeletal system, specifically her shoulder, and not from her neck. (Tr. 266).
On July 1, 2010, Dr. Terry J. Sites, an orthopedist, conducted an Independent Medical
Examination. (Tr. 322-326). Dr. Sites noted that Plaintiff smoked a pack of cigarettes per day,
and had done so for approximately 25 years. (Tr. 324). Dr. Sites reported that this was a difficult
case and highly complex “given that the patient has already undergone a failed surgical
procedure, now with worse pain.” (Tr. 325). He also noted that Plaintiff had a history of
depression and anxiety, and had not responded well to physical therapy, preop or postop. He
presented three options, and opined that Plaintiff was not able to return to her job as a nursing
aide at that time, but that “[s]he is not unable to work in any capacity.” (Tr. 326). He stated at
that time that he would allow her to currently work at unrestricted use of her lower extremities
and right upper extremity with no lifting over 5 pounds, and with her left upper extremity, he
would limit her to no repetitive use, no lifting over ½ pound with her elbow at her side and
nothing above waist level. (Tr. 326).
On July 6, 2010, non-examining consultant, Dr. David L. Hicks, completed a Physical
RFC Assessment. (Tr. 34-321). He found Plaintiff could perform light work and was limited in
reaching all directions (including overhead), and could only occasionally overhead reach with
the left upper extremity. (Tr. 315-317).
On August 18, 2010, Dr. Terry L. Efird conducted a Mental Diagnostic Evaluation. (Tr.
327-331). At said evaluation, Plaintiff reported having applied for disability benefits “because
I’m not working right now. I was hurt on the job; and, I need some medical insurance. I need
some help.” (Tr. 327). She reported that she had been experiencing excessive worry for “years.”
(Tr. 327). She also reported that she had suffered from depression and anxiety for most of her
life. (Tr. 327). Dr. Efird found that Plaintiff’s ability to perform basic self-care tasks
independently was endorsed and that her ability to perform household chores adequately was
described as impaired by physical pain and lifting restrictions. (Tr. 328). Dr. Efird diagnosed
Depressive disorder NOS; anxiety disorder NOS
(Tr. 330). Dr. Efird further found that Plaintiff communicated and interacted in a reasonably
socially adequate manner, communicated in a reasonably intelligible and effective manner, had
the capacity to perform basic cognitive tasks required for basic work like activities, and that no
remarkable indications of cognitive inefficiency were noted. (Tr. 330). Dr. Efird further found
that no remarkable problems with attention/concentration were noted, that no remarkable
problems with persistence were noted, and that no remarkable problems with mental pace of
performance were noted during the evaluation. (Tr. 330).
It is noteworthy that on August 23, 2010, Plaintiff met with Michael Jeppsen, L.A.C., at
Ozark Guidance Center, and reported that she moved in with her aunt two months prior to help
care for her. (Tr. 418). A Mental RFC Assessment and Psychiatric Review Technique forms
were completed by non-examining consultant Dr. Jay Rankin, on August 24, 2010, in which he
found that Plaintiff appeared capable of unskilled work. (Tr. 332-335, 338-350).
On September 15, 2010, Dr. Terry Sites performed surgery on Plaintiff’s left shoulder,
and anticipated that she would be ready to return back to her regular duties within 8 to 12 weeks.
(Tr. 354). On September 16, 2010, Physical Therapist Henry Adamos opined that Plaintiff’s
restorative potential was excellent. (Tr. 528). On September 23, 2010, Plaintiff reported to
Boston Mountain Rural Health Center that it was “going very well” with her shoulder. (Tr. 366).
On September 24, 2010, a report from Ortho Spine Care revealed that Plaintiff displayed
improved mobility of her shoulder girdle with greater response within upper middle traps and
rhomboids with scapular protraction and retraction. (Tr. 525). On September 29, 2010, Plaintiff
reported to Dr. Wesley K. Cox that she was doing well and said that she felt very good and had
no problems or complaints. (Tr. 357). On November 3, 2010, Dr. Sites reported that Plaintiff was
“doing very well with her left shoulder, having very little pain.” (Tr. 356).
On November 8, 2010, Plaintiff reported to Michael Jeppsen at Ozark Guidance that she
had surgery on her shoulder and “got pretty much my range of motion back. This fixes the
mistakes of the first surgery on 9/2/09.” (Tr. 408). By November 10, 2010, Dr. Thomas Embry,
one of Plaintiff’s treating physicians, reported that Plaintiff had fairly good range of motion of
her shoulders. (Tr. 360).
On December 1, 2010, Dr. Sites reported that Plaintiff was doing extremely well postop
left shoulder, having minimal discomfort, and had missed a couple of weeks of therapy for some
personal reasons. (Tr. 502). She did feel that physical therapy had been beneficial. (Tr. 502) Dr.
Sites concluded that she should do an additional two weeks of strengthening and work
hardening, followed by a home exercise program, “allowing her to return to regular work duties
on 12/20/10.”1 (Tr. 502).
On January 26, 2011, Dr. Sites reported that Plaintiff had some occasional mild pain at
the limits of motion and had been out of therapy since early December. (Tr. 501). His impression
was post left shoulder arthroscopy for adhesive capsulitis, retained painful sutures, with an intact
rotator cuff. (Tr. 501). Dr. Sites believed that Plaintiff had reached maximum medical
December 20, 2010 would have been the Monday after two full weeks had passed from December 1, 2010.
improvement, had already been given a rating in the past, and that there was no additional
impairment. (Tr. 501). He further reported that she may perform her regular work duties without
restriction. “There is a note that she may have some pain if she were to do work above shoulder
level which required repetitive abduction. All was fully discussed. This is a final report.” (Tr.
501). On May 9, 2011, Plaintiff advised Dr. Sites that her left shoulder had been doing very well
in terms of movement, but had developed some anterolateral shoulder pain.(Tr. 500). Dr. Sites
recommended a course of treatment and noted that she did not need formal therapy and would
do her home exercise program along with the TENS unit. (Tr. 500). On June 16, 2011, Plaintiff
told Dr. Sites that she still had some pain in the shoulder, mostly achy and anterolateral in
nature. (Tr. 548). Dr. Sites noted there was no swelling, that she had good strength for all
resisted motor motions about the shoulder, and that there was no impingement. (Tr. 548). Dr.
She does have some pain in her shoulder but significantly decreased
compared to her preop shoulder. I feel she has reached maximum medical
improvement. There is no additional impairment as it relates to her left
shoulder after this recent surgery. Her work capacity is unrestricted with
regular work duties. She has some mild residual pain requiring no
specific treatment currently. We will see her back on an as needed basis.
On September 30, 2011, Plaintiff saw Dr. Embry and refused advice to see a pain
medicine specialist and continued to smoke one pack per day. (Tr. 645). On December 9, 2011,
a Mental diagnostic Evaluation was conducted by Stephen R. Harris, Ph.D., C.E.B.P. Psychologist. (Tr. 600-604). Dr. Harris found that Plaintiff had a GAF score of 52, was poor in
socialization skills, and would have difficulty in the area of coping with basic work-like tasks.
He further found that she showed no particular difficulties in the ability to concentrate and attend
during the evaluation. (Tr. 604). He reported that due to her anxiety, Plaintiff may have difficulty
in persistence and difficulty in meeting timeframes. (Tr. 604). In his Medical Source Statement
of Ability to do Work-Related Activities, Dr. Harris found that Plaintiff had mild to moderate
restriction in the ability to make judgments on complex work-related decisions; had mild
restriction in the ability to make judgments on simple work-related decisions and understand and
remember complex instructions; had mild to moderate restriction in interacting appropriately
with the public, interacting appropriately with supervisors, and interacting appropriately with
co-workers; and had moderate restriction to respond appropriately to usual work situations and
to changes in a routine work setting. (Tr. 605-606).
On January 10, 2012, Katherine Darling, APN, at Health Resources of Arkansas,
reported that Plaintiff reported her anxiety and depression was “OK” but that her grown son and
3 grandchildren were living with her in her one bedroom apartment and she was “situationally
depressed” and had increases in anxiety. (Tr. 627). (Tr. 627).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. 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). The
United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace. Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003). “[T]he ALJ is [also] required to set forth specifically a
claimant’s limitations and to determine how those limitations affect his RFC.” Id.
In this case, the ALJ clearly considered all of the evidence in the record. For the closed
period, he gave significant weight to Dr. Sites, Plaintiff’s treating surgeon, and little or no
weight to Dr. Ricciardi’s opinion, based upon the fact that the surgery later performed by Dr.
Sites was apparently successful. (Tr. 18). The ALJ also gave substantial weight to the opinions
of Dr. Harris, who examined Plaintiff, and Dr. Efird, whose opinion was consistent with that of
Dr. Harris. (Tr. 18).
With respect to the opinion evidence since December 20, 2010, the ALJ gave substantial
weight to the opinions of all of Plaintiff’s treating physicians, with two exceptions. He gave little
or no weight to the opinion of Dr. Ricciardi, as he opined that her shoulder condition would not
improve, that all therapeutic modalities had been exhausted, and that she should not return to
work. (Tr. 24). As noted by the ALJ, the record demonstrated that this opinion was inaccurate,
as Dr. Sites was able to perform a second procedure on Plaintiff’s shoulder that produced
successful results. (Tr. 24-25). The ALJ also discounted the opinion of Dr. Embry, one of
Plaintiff’s treating physicians, to the extent it differed from the ALJ’s findings. (Tr. 25). The
ALJ reasoned that there was no objective medical evidence in Dr. Embry’s treatment records to
support his diagnosis of carpal tunnel syndrome on February 10, 2010. (Tr. 25).
The ALJ found that Plaintiff’s statements were not credible because her allegations were
inconsistent with Dr. Sites’ observations and opinions and with the information Plaintiff
provided to Dr. Sites. (Tr. 22). The ALJ took into consideration Dr. Sites’ observation that
Plaintiff might have some pain if she were to do work above shoulder level requiring repetitive
abduction, and incorporated it into his RFC for light work with only occasional use of her upper
nondominant left extremity overhead and where she is only occasionally required to push and
pull with her upper left extremity. (Tr. 22-23).
With respect to Plaintiff’s mental impairments, the ALJ found that there was reason to
question Plaintiff’s assertions regarding her mental limitation, noting that she made conflicting
statements regarding the effectiveness of her medication, and the cause of Plaintiff’s alleged
impairments. (Tr. 23-24). Nevertheless, the ALJ limited Plaintiff to unskilled work in his RFC.
(Tr. 24). The ALJ further explained that Plaintiff successfully worked with mental impairments
she now alleges are causing her to be disabled, and the fact that Plaintiff alleged severe limiting
pain but does not take narcotic based pain relieving medications. (Tr. 24). The ALJ gave
substantial weight to the opinions of the non-examining state agency consultants. (Tr. 24).
Plaintiff places great emphasis on the various GAF scores assigned to her by various
mental health providers, noting that many were below 50. However, it appears that all of the
GAF scores below 50 were given by individuals who do not qualify as “acceptable medical
sources” under 20 C.F.R. § 416.913(a)(2013). The two acceptable medical sources - Dr. Efird
and Dr. Harris, assigned GAF scores of 50-60 and 52, respectively. (Tr. 330, 603). Accordingly,
Plaintiff’s argument on this issue is without merit.
Based upon the foregoing, the Court finds there is substantial evidence to support the
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ’s partially favorable decision that Plaintiff was disabled between
April 14, 2009 and December 19, 2010, but not disabled from December 20, 2010 through the
date of his decision, and thus the decision should be affirmed. The undersigned further finds that
the Plaintiff’s Complaint should be dismissed with prejudice.
IT IS SO ORDERED this 3rd day of November, 2014.
/s/ Erin L. Setter
HONORABLE ERIN L. SETTER
UNITED STATES MAGISTRATE JUDGE
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