Wilson v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 9, 2014. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
REBECCA WILSON
v.

PLAINTIFF
CIVIL NO. 13-5205

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Rebecca Wilson, 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”) denying her claim for a period of disability and disability insurance benefits
(“DIB”) under the provisions of Title II 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).
I. Procedural Background
Plaintiff protectively filed her application for DIB on April 13, 2012, alleging an inability
to work since October 3, 2011, due to depression, diabetes, neuropathy in her feet, and back and
leg pain. (Tr. 20, 134-42, 178). For DIB purposes, Plaintiff maintained insured status through
December 31, 2016. (Tr. 22). Her claim was initially denied on June 19, 2012, and denied upon
reconsideration on October 2, 2012. (Tr. 80-82, 85-86). An administrative hearing was held on
January 30, 2013, at which Plaintiff appeared with counsel and testified. (Tr. 35-75). By a written
decision dated April 19, 2013, the Administrative Law Judge (“ALJ”) found that during the
relevant time period, Plaintiff had the following severe impairments: hypertension, non-insulin

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dependent diabetes mellitus with neuropathy, spondylosis of the lumbar spine, degenerative disc
disease of the lumbar spine at the L5-S1 level, obesity, and depression. (Tr. 22, 187). After
reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments did not
meet or equal the level of severity of any impairment in the Listing of Impairments found in
Appendix I, Subpart P, Regulation No. 4. (Tr. 22). The ALJ found Plaintiff retained the residual
functional capacity (“RFC”) to perform sedentary work, except that “she could perform work
limited to simple, routine, and repetitive tasks involving only simple, work-related decisions with
few, if any, workplace changes; and no more than incidental contact with coworkers, supervisors,
and the general public.” (Tr. 24). With the help of a vocational expert (“VE”), the ALJ
determined Plaintiff could not perform her past relevant work (“PRW”), but that Plaintiff
retained the capacity to perform the requirements of representative occupations such as fishing
reel assembler, inspector checker weigher, and label cutting machine operator. (Tr. 27-28). The
ALJ then found that Plaintiff had not been under a disability as defined by the Act during the
relevant time period. (Tr. 29).
Plaintiff next requested a review of the hearing decision by the Appeals Council, which
denied that request on July 26, 2012. (Tr. 1-6). Subsequently, Plaintiff filed this action. (Doc.
1).This case is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both
Parties have filed appeal briefs, and the case is ready for decision. (Doc. 11; Doc. 12).
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. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance, but it is enough that a reasonable mind
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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. Barnhart, 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 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 demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). 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 has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
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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 her age, education, and experience. See 20 C.F.R. § 404.1520. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of her RFC.
IV. Discussion
Plaintiff raises the following arguments on appeal: The ALJ (1) erred by not finding that
Plaintiff meets the requirements of Listing 1.04, and (2) erred by ignoring evidence about
Plaintiff’s carpal tunnel syndrome (“CTS”) in finding that it was not a severe impairment. (Pl.
Br. at 12).
A. Whether Plaintiff’s Carpal Tunnel Syndrome Was A Severe Impairment:
An impairment is severe within the meaning of the regulations if it significantly limits
an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). An impairment or combination of impairments is not severe when medical and
other evidence establish only a slight abnormality or a combination of slight abnormalities that
would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§
404.1521, 416.921. The Supreme Court has adopted a “de minimis standard” with regard to the
severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989).
Plaintiff argues that the ALJ should have included CTS as a severe impairment. (Pl. Br.
at 15-19). After a positive nerve conduction study and a positive Phalen’s test, Plaintiff was
diagnosed with bilateral CTS by Dr. Mark Powell in December 2007. (Tr. 469-472, 467). She

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was instructed to wear a Velcro splint, and advised that carpal tunnel release surgery was an
option. (Tr. 467).
In her disability application, Plaintiff did not include CTS as a basis for her disability.
(Tr. 134-42, 178). The record reflects that, after her diagnosis in 2007, Plaintiff did not seek
treatment. She testified at her hearing that she had numbness in her left hand but said, “it's not
too bad as long as I watch what I'm doing.” (Tr. 60-61). She also testified that she did not have
surgery for financial reasons. (Tr. 61).
The fact that Plaintiff did not include CTS as a basis for her disability is significant even
though she developed the issue in her testimony. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th
Cir. 2001). There is also no evidence that she had functional limitations from CTS. She did not
mention CTS to her physicians or seek treatment after 2007, which indicated that her CTS was
not a disabling condition. Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995); Wagner v.
Astrue, 499 F.3d 842, 851 (8th Cir. 2007). Plaintiff did not acknowledge that she had a condition
that affected her use of her hands when prompted by a query in her Function Report
Questionnaire. (Tr. 203). In her Function Report, she mentioned that her impairments affected
the amount of time she could spend on a computer, but she attributed her limitations to back
pain, not CTS. (Tr. 47-48). Plaintiff indicated instead that she played a lot of video games, and
wrote, “good at video games now, unable to do much else.” (Tr. 202). These activities are not
consistent with a disabling CTS condition. See Davis v. Apfel, 239 F.3d 962, 967 (8th Cir.
2001). Based on her daily activities, lack of treatment, and her lapse in alleging a CTS condition,

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there was substantial evidence for the ALJ to conclude that her CTS was not a severe
impairment.1
Plaintiff also argues that the ALJ failed to acknowledge or appropriately weight Dr.
Powell's opinion, which is the reason the ALJ did not include CTS as a severe impairment. (Pl.
Br. at 15-17). The ALJ noted the records from Dr. Powell, but did not discuss Dr. Powell’s
diagnosis in detail. (Tr. 25). Dr. Powell only saw Plaintiff on one visit before Plaintiff
discontinued treatment. The visit occurred in 2007, well before the relevant time period. There
was no obligation for the ALJ to assign a weight to this piece of evidence because the visit with
Dr. Powell was not close to the relevant time period, and the single visit did not establish a
treating relationship. Although evidence outside of the relevant time period can support or
illuminate the severity of a condition, it is not determinative by itself. See Pyland v. Apfel, 149
F.3d 873, 878 (8th Cir. 1998). There was also no duty to discuss the evidence in detail because
the record did not show Plaintiff’s CTS condition to be a severe impairment. The ALJ’s duty to
discuss such evidence, therefore, was minimized. See Salts v. Sullivan, 958 F.2d 840, 844 (8th
Cir. 1992).
B. Whether Plaintiff’s Back Impairment Met A Listing:
“The claimant has the burden of proving that her impairment meets or equals a listing.”
Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “To meet a listing, an impairment
must meet all of the listing's specified criteria.” Carlson v. Astrue, 604 F.3d 589, 594 (8th Cir.
1

Even assuming that the ALJ should have included CTS as an additional severe
impairment in Step Two, the error is harmless since the ALJ found at least one severe
impairment and considered all impairments, including those that were not severe, in his
analysis. See Maziarz v. Secretary of Health and Human Servs. 837 F.2d 240, 244 (6th Cir.
1987).
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2010). “To establish equivalency, a claimant 'must present medical findings equal in severity to
all the criteria for the one most similar listed impairment.’” Id. at 594, (quoting from Sullivan
v. Zebley, 493 U.S. 521, 531, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990)). “When determining
medical equivalency, an impairment can be considered alone or in combination with other
impairments.” Carlson, 604 F.3d at 595.
Plaintiff argues that she meets the requirements of Listing 1.04, which specifies the
following criteria:
Listing 1.04 - Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,
vertebral fracture), resulting in compromise of a nerve root (including the cauda equina)
or the spinal cord.
With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe burning
or painful dysesthesia, resulting in the need for changes in position or posture more than
once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on
appropriate medically acceptable imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04.
The record reflects that Plaintiff had a history of treatment for back pain and was
prescribed a long list of pain medications. (Tr. 255, 258, 261, 264, 267, 270, 273, 276, 279). She
was primarily treated by Dr. Cathy Luo, who noted in July 2011 that Plaintiff had “middle back
pain that radiates all the way down and sciatic pain that radiates down her legs.” On multiple

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visits in 2010 and 2011, Dr. Luo assessed positive straight leg tests and noted decreased range
of motion in Plaintiff’s lumbar spine. (Tr. 252, 253, 256, 259, 262, 265, 268, 271, 274, 277,
280). Plaintiff was eventually referred to Dr. James Blankenship, a neurologist, and underwent
an MRI of her spine on July 20, 2011. The results, in pertinent part, were as follows:
L3-L4: Mild facet arthropathy is noted with mild lateral recesses without significant
neural impingement.
L4-L5: Marked facet arthropathy with lateral recess stenosis with mild impingement of
the L5 nerve root bilaterally. A posterior disk bulge eccentric off to the right results in
a slightly more significant neural compression with mild proximal L4 neural foraminal
narrowing.
L5-S1: Mild Facet arthropathy is noted with mild lateral recess stenosis without
significant neural impingement. (Tr. 289-290)(emphasis added).
An x-ray of her spine on July 25, 2011, also indicated mild segmental instability at the L4-L5
level. (Tr. 288).
On September 8, 2011, Dr. Blankenship reviewed the x-ray and MRI results and
characterized Plaintiff’s back condition as consistent with L5 radiculopathy. Dr. Blankenship
found that the x-ray and MRI of her spine demonstrated an annular tear with posterior disk
herniation, along with kyphosis with forward angulation and flattening of the spine. (Tr. 285).
He wrote, “[she] has marked collapse of the anterior disc space in flexion and opening up, but
still not completely in extension ... indicative of moderate segmental instability. [She] has
moderate to severe lateral recess stenosis at the L4-L5 level.” (Tr. 285-296). Dr. Blankenship
assessed that the existence of a posterior annular tear, in addition to disc protrusion and stenosis,
made it unlikely that a simple decompression procedure would benefit Plaintiff. He also opined
that a partial facetectomy might adequately decompress the proximal L4 nerve root, but it would
lead to further destablization. Dr. Blankenship instead advised Plaintiff that she should have an

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extreme lateral interbody fusion (“XLIF”) procedure combined with a posterior decompression
procedure. (Tr. 286).
Defendant did not address Plaintiff’s argument other than noting that Plaintiff had a
normal gait, which would preclude her from meeting the 1.04(C) Listing. (Def. Br. at 7).
Plaintiff’s normal gait is relevant to Listing 1.04(C), but not Listing 1.04(A) or 1.04(B).
In his decision, the ALJ discussed Plaintiff’s back pain, pain management treatment, and
the opinion of Dr. Blankenship, but noted that she “reported pain relief with medications and
sleeping on an ice pack,” and concluded that her “spondylosis and degenerative disc disease ...
are not severe to a degree that would limit activities beyond the scope of the RFC.” (Tr. 26). The
ALJ did not discuss whether her spinal condition met or medically equaled an impairment listing
at Step Two.
Since there was a diagnosis of nerve root compression as well as evidence that Plaintiff
had decreased range of motion, positive straight leg tests, and neuro-anatomic distribution of
pain, the ALJ should have more carefully considered and more thoroughly addressed whether
Plaintiff’s back impairment met a listing. The Court finds that there was not substantial evidence
to support the ALJ’s decision. Remand is necessary in order for the ALJ to more carefully
consider and address Plaintiff’s back impairment in light of the nerve root compression
diagnosed by Dr. Blankenship. On remand, the ALJ should obtain a Physical RFC Assessment
from an examining physician.
C. Conclusion:
Accordingly, the Court finds that the ALJ's decision is not supported by substantial
evidence, and, therefore, the denial of benefits to the Plaintiff should be reversed and this matter
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should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
Dated this 9th day of December 2014.
s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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