Hunnicutt v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on December 16, 2015. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
ANNETTE HUNNICUTT
v.
PLAINTIFF
Civil No. 3:14-cv-3096-MEF
CAROLYN W. COLVIN, Commissioner
Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Annette Hunnicutt, brings this action under 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability, 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)(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 filed her applications for DIB and SSI on December 21, 2010, alleging an
onset date of March 6, 2010,1 due to lung problems, asthma, cracked ribs, carpal tunnel
syndrome, emotional problems, depression, and arthritis. Tr. 124-134, 172, 188, 190. The
Commissioner denied her applications initially and on reconsideration. Tr. 66-79. An
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The Plaintiff previously filed applications for benefits in March 2010, alleging disability since March 6, 2010.
Tr. 145, 168. These applications were denied at the initial level on April 30, 2010.
Administrative Law Judge (“ALJ”) held an administrative hearing on March 20, 2013. Tr. 2457. Plaintiff was present and represented by counsel.
At this time, she was 48 years old with a ninth grade education. Tr. 29-30. She had
past relevant work (”PRW”) experience as a cashier. Tr. 145, 173.
On May 10, 2013, the ALJ found that the Plaintiff’s residual of injuries, status post
closed head injury, status post pneumothorax, chronic obstructive pulmonary disease
(“COPD”), and depression were severe, but did not meet or medically equal one of the listed
impairments in Appendix 1, Subpart P, Regulation No. 4.
Tr. 12-14.
After partially
discrediting her subjective complaints, the ALJ determined that she retained the residual
functional capacity (“RFC”) to perform light work,
except she needs to work in a controlled environment not exposed to dust,
fumes, smoke, or extreme temperatures. She is unable to perform jobs which
involve repetitive grasping and fingering but could do them frequently. She
needs a job with simple tasks and simple instructions.
Tr. 14. The ALJ the concluded the Plaintiff could return to her PRW as a cashier. Tr. 18.
The Appeals Council denied the Plaintiff’s request for review on August 27, 2014. Tr.
1-4. Subsequently, Plaintiff filed this action. ECF No. 1. This case is before the undersigned
by consent of the parties. Both parties have filed appeal briefs, and the case is now ready for
decision. ECF Nos. 9, 10.
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs and the ALJ’s opinion, and 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
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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 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), 1382(3)(c). A Plaintiff
must show that his or her disability, not simply their 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
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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)
(en banc) (abrogated on other grounds); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III.
Discussion:
Of particular concern to the undersigned is the ALJ’s step two determination that the
Plaintiff’s carpal tunnel syndrome is non-severe. “An impairment is not severe if it amounts
only to a slight abnormality that would not significantly limit the claimant’s physical or mental
ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing
Bowen v. Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If the impairment
would have no more than a minimal effect on the claimant’s ability to work, then it does not
satisfy the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007)).
On March 6, 2010, the Plaintiff was involved in a four-wheeler accident resulting in a
closed heard injury and loss of consciousness. Tr. 204-213. She was hospitalized for five days
for a scalp hematoma, mediastinal hematoma, traumatic pneumothorax, a closed fracture of
the first rib on the left side, and pneumomediastinum. The Plaintiff responded well to
treatment, including pulmonary rehabilitation, and doctors released her home with directions
to avoid lifting, driving, or any strenuous activity until she could be seen in follow-up.
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Following discharge, she sought treatment from Dr. Ronald Reese for arm pain. Tr.
216, 217. On July 15, 2010, electromyography (“EMG”) testing revealed the following:
1) Mild compromise of bilateral median nerves through the carpal tunnel with
focal motor demyelination bilaterally and focal sensory demyelination on the
right. May benefit from anti-inflammatories.
2) Mild to moderate compromise of the right ulnar nerve across the elbow with
focal motor demyelination and partial motor/sensory conduction block, but no
significant axon loss. May benefit from anti-inflammatories.
3) I suspect the lack of radial sensories may be related to years as a smoker.
4) I suspect there may be some related musculo-skeletal pain in the arm/forearm
region that is not neurogenic in nature but related to trauma or overuse.
(Tr. 219).
Dr. Reese order occupational therapy and records reveal she underwent an initial
evaluation on July 16, 2010. Tr. 220. During the evaluation, she demonstrated increased pain
on the right cubital tunnel area with increased pain during palpation of the ulnar nerve and
increased pain to the right lateral epicondyle area.
The therapist performed numerous
provocative testing suggesting positive lateral epicondylitis of the right arm.
The Plaintiff participated in six occupational therapy visits. Tr. 222. She made good
progress and reported a drastic decrease in pain. Although scheduled to return for two more
visits, the Plaintiff’s last visit was August 11, 2010. On September 3, 2010, she was discharged
for failing to complete the program.
On June 14, 2012, Dr. Shannon H. Brownfield performed a consultative general
physical examination. Tr. 268-272. An examination showed positive bilateral Phalen’s tests.
Dr. Brownfield diagnosed COPD (untreated/smoker), probable bilateral carpal tunnel
syndrome, and depression (untreated). He then opined that Plaintiff had moderate/severe
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limitations with regard to the prolonged use of her hands; and moderate/severe limitations with
regard to prolonged or heavy exertion.
The record contains only one RFC assessment.
Dr. Patricia McCarron, a non-
examining consultant concluded the Plaintiff’s physical impairments were not severe. Tr. 260263. Dr. Jerry Thomas affirmed this assessment on July 2, 2012. Tr. 279.
After reviewing the evidence, the undersigned finds that remand is necessary to allow
the ALJ to reconsider the severity of the Plaintiff’s carpal tunnel syndrome. Dr. Brownfield
found the impairment significant enough to warrant moderate to severe limitations in the use
of her hands. His medical opinion appears to be in conflict with the ALJ’s determination that
the impairment was not severe.
Dr. Brownfield’s assessment also contradicts the ALJ’s RFC findings. As such,
remand is also necessary to allow the ALJ to clarify Dr. Brownfield’s assessment of “moderate
to severe limitations.” See Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (ALJ should
recontact a treating or consulting physician if a critical issue is undeveloped or
underdeveloped). In so doing, the ALJ should also ask Dr. Brownfield to complete a physical
RFC assessment.
If Dr. Brownfield is unable to clarify his prior opinion and/or complete an RFC
assessment without reevaluating the Plaintiff, then the ALJ should order a new consultative
examination complete with a thorough RFC assessment.
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
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pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 16th day of December, 2015.
Mark E. Ford
/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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