Gott v. Berryhill

Filing 15

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/30/2019. (nms)

IN THE UNITED STATES DISTRJCT COURT
FOR THE DISTRJCT OF DELAWARE

JOSEPH V. GOTT,
Plaintiff,
V.

No. 18-cv-813-RGA
NANCY A. BERRYHILL, Commissioner of
Social Security,
Defendant.

MEMORANDUM OPINION
Presently before the Court are Plaintiff's motion for summary judgment (D .I. 9) and
Defendant's cross-motion for summary judgment (D.I. 11). I have reviewed the parties'
briefing. (D.I. 10, 12, 14). For the following reasons, I will remand the case for further
consideration consistent with this opinion.

I.

BACKGROUND
This action arises from the denial of Plaintiff's claim for Disability Insurance Benefits

under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. 1 Plaintiff filed his benefits
application on December 31 , 2014. He alleged disability beginning December 31 , 2012. His
application was denied initially on March 19, 2015 , and upon reconsideration on September 25 ,
2015 . Plaintiff subsequently requested a hearing before an administrative law judge ("ALJ").
(Tr. at 13).

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I refer to the record from the administrative proceeding (D.I. 5) as "Tr."

The ALJ held a hearing on July 10, 2017. The ALJ heard testimony from Plaintiff and a
vocational expert. Plaintiff also submitted written evidence that the ALJ admitted into the
record. The ALJ issued a decision denying Plaintiff's request for Disability Insurance Benefits
on August 17, 2017. (Id. at 13-22). The ALJ found that, through the date Plaintiff was last
insured, he had the following severe impairments: degenerative disc disease of the lumbar spine
and a left thumb injury. (Id. at 16). Upon consideration of the entire record, the ALJ
determined,
[Plaintiff] had the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except he could occasionally climb ramps and stairs,
but never ladders, ropes, or scaffolds. He could occasionally balance, stoop,
kneel, crouch, and crawl. He could occasionally handle and finger with the
non-dominant left upper extremity. He could have occasional exposure to
extreme cold, vibration, and hazards.
(Id.). The vocational expert testified that, in view of Plaintiff's age, education, work experience,

and residual functional capacity, Plaintiff could perform the requirements of certain jobs in the
national economy. (Id. at 21). Based on the testimony of the vocational expert, the ALJ found
that Plaintiff was not disabled. (Id.) .
The Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Tr. at
1-6). Plaintiff filed this action on May 30, 2018.

II.

LEGAL STANDARD
The Commissioner must follow a five-step sequential analysis when determining if an

individual is disabled. 20 C.F.R. § 404.1520. The Commissioner must determine whether the
applicant: (1) is engaged in substantial gainful activity; (2) has a "severe" medical impairment;
(3) suffers from an impairment that is listed in the regulation' s appendix; (4) can still perform
past relevant work; and (5) can perform any other work existing in significant numbers in the

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national economy. McCrea v. Comm 'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing 20
C.F.R. § 404.1520).
A reviewing court is limited to determining whether the Commissioner' s factual findings
are supported by "substantial evidence." 42 U.S.C. § 405(g). "Substantial evidence" is "such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Pierce v. Underwood, 487 U.S. 552, 564-65 (1988). In reviewing whether substantial evidence
supports the Commissioner' s findings, the court may not "re-weigh the evidence or impose [its]
own factual determinations." Chandler v. Comm 'r ofSoc. Sec. , 667 F.3d 356, 359 (3d Cir.
2011). The reviewing court must defer to the ALJ and affirm the Commissioner' s decision, even
if it would have decided the factual inquiry differently, so long as substantial evidence supports
the decision. Hartranftv. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
The reviewing court must also review the ALJ' s decision to determine whether the
correct legal standards were applied. Sykes v. Apfel, 228 F.3d 259,262 (3d Cir. 2000). The
court' s review of legal issues is plenary. Id.

III.

ANALYSIS
Plaintiff makes three arguments in support of his motion for summary judgment. First,

the ALJ erred by posing a defective hypothetical question to the vocational expert. Second, the
ALJ erred by determining that Plaintiff had a residual functional capacity for light work. Third,
the ALJ erred in determining the severity of Plaintiff's impairments.
A. Defective Hypothetical Question to the Vocational Expert
Plaintiff argues that the ALJ' s hypothetical question to the vocational expert was
defective because it (1) failed to include Plaintiff's left upper extremity push/pull limitation, (2)
relied on outdated non-examining physicians' opinions, and (3) ignored substantial evidence that

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supported additional limitations not included in Plaintiff's residual functional capacity. (D.I. 1418). Because I agree with Plaintiff on the first point, I do not address the latter two. 2
"A hypothetical question must reflect all of a claimant' s impairments that are supported
by the record; otherwise the question is deficient and the expert' s answer to it cannot be
considered substantial evidence." Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
An ALJ does not have to include every alleged impairment but only "a claimant' s credibly

established limitations." Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). "Limitations
that are medically supported but are also contradicted by other evidence in the record may or
may not be found credible-the ALJ can choose to credit portions of the existing evidence but
cannot reject evidence for no reason or for the wrong reason." Id. (internal quotation marks
omitted).
Here, the ALJ posed the following hypothetical question to the vocational expert:
I' d like you to assume an individual of the claimant's age, education and work
history who can perform work at the light exertional level, who can
occasional[ly] climb ramps and stairs, but never ladders, ropes and scaffolds;
who can occasional[ly] balance, stoop, kneel, crouch, and crawl; who can
occasionally handle and finger with the non-dominant left hand[;] and who can
have occasional exposure to extreme cold, vibration, and hazards . . . . Would
there be jobs that such an individual could perform?
(Tr. at 50-51 (emphasis added)).
Plaintiff argues that the ALJ' s question failed to convey Plaintiffs credibly established
left upper extremity push/pull limitation. State agency medical consultants provided opinion
evidence that Plaintiff was limited in his left upper extremity regarding " [p]ush and/or pull."
(Tr. at 64). The ALJ credited that evidence. (Id. at 18-19 (noting the consultants found "limited
pushing, pulling, handling, and fingering with the left upper extremity," and affording that

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I doubt that Plaintiff's second and third points have any merit.

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opinion "great" weight)). To the vocational expert, however, the ALJ only inquired about left
hand limitations in handling and fingering and did not mention pushing or pulling. (Id. at 16, 21,
50-51).
Plaintiff had a credibly established left upper extremity push/pull limitation. While the
ALJ was free to reject the opinion evidence regarding the push/pull limitation, he did not. The
ALJ specifically noted the push/pull finding and afforded the opinion "great" weight. (Id. at 1819). The ALJ failed, however, to convey that limitation to the vocational expert when posing his
hypothetical question. (Id. at 50-51). Therefore, the ALJ's question was deficient and the
expert' s response is not substantial evidence. See Chrupcala, 829 F.2d at 1276. The ALJ's
finding that the Plaintiff was not disabled, based on the vocational expert' s response, is thus not
supported by substantial evidence.
Therefore, I will remand the case to correct the deficiencies in the ALJ' s hypothetical
question and subsequent analysis.

B. Residual Functional Capacity for Light Work
Plaintiff argues that the ALJ' s finding of residual functional capacity for light work is not
supported by substantial evidence. (D.I. 10 at 18-20).

In determining residual functional capacity, the ALJ discussed Plaintiffs testimony,
various medical records, and opinion evidence from medical professionals. (Tr. at 16-20). The
ALJ afforded "great" weight to the state agency medical consultants ' opinions as "consistent
with the evidence ofrecord and accommodat[ing] the severe impairments." (Tr. at 18-19). The
state consultants' opinions appear to be consistent with a residual functional capacity for light
work, excepting the limitations the ALJ identified. Compare 20 CFR § 404.1567(b) (defining
light work), with (Tr. at 16, 64-67 (Dr. Borek), 79-80 (Dr. Kataria affirming Dr. Borek's

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findings)). The ALJ afforded little or no weight to the contrary opinions from Drs. Eppley,
Sowa, Townsend III, Reynolds, Navarro, and Daya. In each case, the ALJ explained why he was
rejecting the opinion. (Id. at 19-20).
The ALJ' s residual functional capacity finding was supported by substantial evidence,
namely, the state consultants' opinions. It was within the ALJ's discretion to afford "great"
weight to those opinions. The ALJ also provided sufficient reasons for rejecting the contrary
opinions. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
Therefore, the ALJ did not err by finding that Plaintiff had residual functional capacity
for light work.

C. Severity of Impairments
Plaintiff argues that the ALJ erred by failing to find severe impairments related to right
upper extremity pain and hearing loss. (D.I. 10 at 20).
A severe impairment is one that "significantly limits [the claimant's] physical or mental
ability to do basic work activities." 20 C.F.R. § 404.1520(c). The claimant has the burden of
showing that an impairment is severe. Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
Plaintiff points to his own testimony (Tr. at 40) and physician' s notes from October 2015
(id. at 595-96) and June 2017 (id. at 664-67). Plaintiff was last insured March 31 , 2017. (Id. at
14). Therefore, the June 2017 note does not support Plaintiffs claim. 20 C.F.R. § 404.131;
Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990). The October 2015 note states that Plaintiff
complained of "severe, persistent pain in bilateral hands and elbows" (Tr. at 595) and concludes
that Plaintiff had loss of pincer grasp in his left index finger (id. at 596).
The ALJ found two severe impairments: degenerative disc disease of the lumbar spine
and a left thumb injury. (Id. at 16). I do not think any of the cited testimony undermines the

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ALJ's conclusion that Plaintiffs right upper extremity pain or hearing loss were not severe.
There was very little evidence of right upper extremity pain. The October 2015 note shows that
Plaintiff complained of "severe" pain in his "bilateral hands and elbows." (Id. at 595).
However, the examining physician only noted loss of function in Plaintiffs left hand and did not
make any conclusions about Plaintiffs right upper extremity. (Id. at 596). The June 2017 note
is the only evidence of hearing loss. (Id. at 666). There is no evidence of hearing loss prior to
March 31, 201 7, the date Plaintiff was last insured.
Therefore, the ALJ did not err by concluding that Plaintiffs right upper extremity pain
and hearing loss were not severe impairments.

IV.

CONCLUSION
For the foregoing reasons, I find that the ALJ erred by failing to include the upper left

extremity push/pull limitation in the hypothetical question posed to the vocational expert.
Therefore, I will remand the case for further proceedings consistent with this opinion. A
separate order will be entered.

Entered this

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3b day of August 2019.