Skirnick v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: GRANTS 19 SOCIAL SECURITY OPENING BRIEF Plaintiffs Brief in Support of Reversing the Decision of the Commissioner of Social Security by Michael A Skirnick, REVERSES the Administrative Law Judge's decision, and REMANDS this matter to the Commissioner for further proceedings consistent with this opinion. However, the Court DENIES Plaintiff's request to award benefits. Signed by Magistrate Judge John E Martin on 9/9/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MICHAEL ANDREW SKIRNICK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

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CAUSE NO.: 3:15-CV-239-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff on June 4, 2015, and
on Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social Security
[DE 19], filed by Plaintiff on October 27, 2015. The Commissioner filed a response to Plaintiff’s
brief on February 3, 2016, and on February 16, 2016, Plaintiff filed a reply.
I.

Procedural Background
In August 2012, Plaintiff applied for disability insurance benefits with the United States

Social Security Administration (“SSA”), alleging that he had become disabled as of December 20,
2008. Plaintiff’s claim was denied initially and on reconsideration. On January 14, 2014,
Administrative Law Judge (“ALJ”) Christa Zamora held a hearing at which Plaintiff, represented
by counsel, and a vocational expert (“VE”) testified. On February 26, 2014, the ALJ issued a
decision denying Plaintiff benefits on the ground that Plaintiff was not disabled.
In the opinion, the ALJ made the following findings under the required five-step analysis:
1.

The claimant last met the insured status requirements of the Social Security
Act on December 31, 2009.

2.

The claimant did not engage in substantial gainful activity during the period
from December 20, 2008, the alleged onset date, through his date last
insured.

3.

The claimant had the following severe impairment: status post burns to his
bilateral forearms.

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled any of the listed
impairments in 20 CFR 404, Subpart P, Appendix 1.

5.

The claimant, through the date last insured, had the residual functional
capacity (“RFC”) to lift and/or carry and push and/or pull up to 50 pounds
occasionally and up to 25 pounds frequently, stand and/or walk up to six
hours in an eight-hour workday, and sit up to six hours in an eight-hour
workday. He could frequently perform handling and fingering bilaterally.

6.

The claimant was unable to perform any past relevant work.

7.

The claimant was 36 years old, which defined as a younger individual age
18-49 on the date last insured.

8.

The claimant has at least a high school education and is able to communicate
in English.

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is not disabled whether or not she has transferable
job skills.

10.

Considering the claimant’s age, education, work experience, and RFC, there
were jobs that existed in significant numbers in the national economy that the
claimant could have performed.

11.

The claimant was not under a disability, as defined in the Social Security
Act, from December 20, 2008, the alleged onset date, through December 31,
2009, the date last insured.

On April 27, 2015, the Appeals Council denied Plaintiff’s request for review, leaving the
ALJ’s decision as the final decision of the Commissioner. On June 6, 2015, Plaintiff filed the
underlying Complaint seeking reversal of the adverse SSA determination.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
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Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
II.

Facts
On December 20, 2008, Plaintiff’s arms were severely burned while he was welding.

Plaintiff received treatment for the burns and a broken right ulna, as well as other severe issues
related to the burns. Plaintiff testified that he could not close his hands, move his thumbs, or bend
his wrists. Plaintiff also complained that he was in severe pain and frequently dropped things due
to his weak and inconsistent grip. Plaintiff also has a history of anxiety, depression, and bipolar
disorder, dating back to 2008.
III.

Standard of Review
The Social Security Act authorizes judicial review of the final decision of the SSA and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
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of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “A reversal and remand may be required, however, if the ALJ
committed an error of law or if the ALJ based the decision on serious factual mistakes or omissions.”
Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citations omitted).
At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing
court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be

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expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from
doing his previous work, but considering his age, education, and work experience, it must also
prevent him from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Does the impairment meet or
equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
RFC, age, education, and experience? If yes, then the claimant is not disabled, and the claim is
denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see
also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The
RFC “is an administrative assessment of what work-related activities an individual can perform
despite [his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR 96-

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8p, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). The RFC
should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing
20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one through four,
whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995).
IV.

Analysis
A.

Listing Analysis

Plaintiff contends that the ALJ failed to adequately address whether Plaintiff was
presumptively disabled under the Listing of Impairments, specifically Listing 8.08. Plaintiff argues
that he is disabled under Listing 8.08 because he has burns with skin lesions and that these injuries
seriously limit the use of more than one extremity. The Commissioner contends that, though brief,
the ALJ’s analysis of Plaintiff’s injuries under Listing 8.08 was sound because Plaintiff’s alleged
limitations were not severe enough to qualify as a listing impairment.
At Step Three of the disability inquiry, an ALJ must determine whether the claimant’s
impairments meet or equal the criteria of an impairment listed in the appendix to the social security
regulations. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). An individual suffering from
an impairment that meets or is the equivalent of the description of a Listing is conclusively
presumed disabled, and no further analysis is required. Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
“To meet or equal a listed impairment, the claimant must satisfy all of the criteria of the listed
impairment,” and he “bears the burden of proving his condition meets or equals a listed
impairment.” Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999); see also Ribaudo v. Barnhart,
458 F.3d 580, 583 (7th Cir.2006) (“[The plaintiff] has the burden of showing that his impairments

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meet a listing, and he must show that his impairments satisfy all of the various criteria specified in
the listing.”); see also Knox v. Astrue, 327 F. App’x 652, 655 (7th Cir.2009) (holding that the
“claimant first has the burden to present medical findings that match or equal in severity all the
criteria specified by a listing”). Whether a claimant’s impairment equals a listing is a medical
judgment, and an “ALJ must consider an expert’s opinion on the issue.” Barnett v. Barnhart, 381
F.3d 664, 670 (7th Cir. 2004). Furthermore, the “ALJ must discuss the listing by name and offer
more than perfunctory analysis of the listing.” Id. at 668.
The ALJ’s listing analysis consisted of four sentences and concluded by stating that Plaintiff
did not meet the “threshold requirements” of the listings. The ALJ did not compare Plaintiff’s
conditions to the requirements of the listings, but merely stated that “no treating or examining
physician indicated diagnostic findings that would satisfy any listed impairment.” AR 15.
This type of “perfunctory” analysis is reversible error. Barnett, 381 F.3d 664 at 668. While
the ALJ did state that she had considered “listings 1.02, 1.07, 1.08, 8.08, and 11.14,” she did not
detail any analysis of those listings. For example, Listings 8.00 and 8.08 apply to burn skin lesions
lasting longer than twelve months and seriously limiting a claimant’s use of his extremities. Facially,
these listings appear directly applicable to Plaintiff’s case, yet the ALJ gave only a cursory
explanation that the listing requirements were not met.
This Court will not substitute its judgment for that of the ALJ. See Boiles, 395 F.3d at 425.
Accordingly, rather than consider whether Plaintiff’s limitations meet the requirements of the
listings, the Court will remand for the ALJ to further develop her analysis of the appropriate listings.

B.

Residual Functional Capacity

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Plaintiff argues that the ALJ erred in determining Plaintiff’s RFC by concluding that Plaintiff
could handle and finger for over five and one-third hours during the workday with no other
manipulative limitations; lift or carry twenty-five pounds for over five and one-third hours during
the workday; and lift up to fifty pounds. Specifically, Plaintiff argues that the ALJ made these
conclusions without a sufficient evidentiary basis, despite medical opinion testimony detailing
Plaintiff’s limitations. Plaintiff points out that the ALJ’s opinion was inconsistent with expert
medical opinions provided in the record. The Commissioner argues that the ALJ is given authority
to resolve disagreements between conflicting medical opinions in determining RFC. The
Commissioner asserts that the ALJ “generously” determined that Plaintiff had continued
manipulative impairments even though state-agency reviewers had determined that Plaintiff was
capable of medium work.
RFC is an assessment of what work-related activities the claimant can perform despite his
limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §
404.1545(a)(1), 416.945(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into
consideration all of the relevant evidence, including both medical and non-medical evidence. See
20 C.F.R. § 404.1545(a)(3), 416.945(a)(3). According to SSA regulations:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations). In assessing RFC, the adjudicator must
discuss the individual’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
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SSR 96-8p, 1996 WL 374184, at *7 (Jul. 2, 1996).
The ALJ determined that Plaintiff could perform medium work – including lifting, carrying,
pushing, or pulling up to fifty pounds occasionally and up to twenty-five pounds frequently, standing
or walking up to six hours in an eight-hour work day, and sitting up to six hours in an eight-hour
work day – and also had the ability to frequently handle and finger with both hands. The vocational
expert testified that there would be no jobs available to someone who could only ocassionally handle
and finger, but that there would be some jobs available to someone who could frequently handle and
finger.
The ALJ’s RFC analysis referenced two categories of medical opinions, one examining
opinion prepared by the Agency’s own medical examiner and several non-examining opinions
prepared by State agency consultants who reviewed Plaintiff’s medical history. The ALJ gave little
weight to the Agency medical examiner’s findings that the claimant had “limited range of motion
in his upper extremities, decreased strength in his upper extremities, abnormal grip strength
bilaterally, and poor fine finger manipulative abilities” because those observations were made after
the relevant time period. AR 17. An ALJ must consider medical evidence obtained after the
claimant’s date last insured, because such evidence is “relevant to a determination of a claimant’s
condition during that period.” Sierra v. Colvin, 2:14-CV-298-TLS, 2016 WL 1128260, at *4-5 (N.D.
Ind. March 23, 2016) (quoting Halvorsen v. Heckler, 743 F.2d 1221, 1225 (7th Cir. 1984)).
In deciding the weight to give the Agency medical examiner’s opinions, the ALJ stated that
there was evidence that Plaintiff was able to “change his own wound dressing, lift weights, get on
a top bunk, and play cards during the time period at issue.” AR 17. However, the ALJ failed to
discuss that, after Plaintiff had lifted weights, his treating physician forbade him from continuing

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to do so. That the ALJ relied on Plaintiff’s weight lifting during the relevant time period to support
her conclusions on Plaintiff’s RFC is unsound. See Scrogham v. Colvin, 765 F.3d 685, 700 (7th Cir.
2014) (“Further, at least one of the activities was a precipitating event that led to one of Mr.
Scrogham’s doctor visits. Surely, this type of ill-advised activity cannot support a conclusion that
Mr. Scrogham was capable of performing fulltime work.”).
The ALJ also discredited the medical opinions of the non-examining State agency
consultants. The consultants concluded that the Plaintiff could perform medium work with no
manipulative limitations, but the ALJ explicitly discounted their opinion because they did not have
access to the entire record, including Plaintiff’s testimony on his own limitations, and because the
record revealed that Plaintiff had limited range of motion and weakness in his right forearm and
hand, and had decreased sensation in his forearms and swelling in both hands.
The Commissioner repeatedly argues that the ALJ was “generous” in her RFC findings,
assigning Plaintiff moderate limitations although there was evidence in the record from the State
consultants, supporting a no-limitation finding. However, in discounting both medical opinions
relevant to Plaintiff’s RFC, the ALJ failed to articulate any other medical evidence supporting her
conclusions. The ALJ discredited the Agency examiner’s findings that Plaintiff suffered from
physical limitations, but also discredited the consultants’ no-limitation finding because the record
revealed those same physical limitations. The Court finds this logically inconsistent at worst, and
lacking a “logical bridge” affording meaningful judicial review at best. See Giles, 483 F.3d at 487.
In short, the ALJ did not adequately explain how she arrived at the conclusion that Plaintiff
could frequently handle and finger, lift and carry twenty-five pounds, and lift fifty pounds despite
his limited range of motion, limited grip strength, and poor manipulative abilities. She discredited

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both medical opinions on the subject, and gave no explanation of how any other medical or nonmedical evidence supported her conclusion on Plaintiff’s RFC. Accordingly, on remand, if Plaintiff
is found not to meet the Listings discussed above, the ALJ is directed to “include a narrative
discussion describing how the evidence supports each [RFC] conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)” and
to “explain how any material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved” consistent with this opinion. SSR 96-8p, 1996 WL 374184, at *7 (Jul.
2, 1996).
C.

Plaintiff’s Testimony

The ALJ concluded that Plaintiff’s testimony on his own physical limitations should be given
little weight because it was inconsistent with other evidence in the record. Plaintiff argues that this
was reversible error because the ALJ did not properly support that finding. The Commissioner
argues that the ALJ’s determination concerning Plaintiff’s symptom testimony was proper, having
been made after fully assessing the record, weighing the required factors, and resolving conflicts in
the record evidence.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv)The type, dosage, effectiveness, and side effects of any
medication . . . ;
(v) Treatment . . . for relief of [] pain or other symptoms;
(vi) Any measures . . . used to relieve your pain or other symptoms
. . . ; and
(vii) Other factors concerning [] functional limitations and
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restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3). An ALJ is not required to give full credit to every statement of pain
made by the claimant or to find a disability each time a claimant states he or she is unable to work,
but “must ‘consider the entire case record and give specific reasons for the weight given to the
individual’s statements.’” Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir. 2012) (quoting Simila v.
Astrue, 573 F.3d 503, 517 (7th Cir. 2009)).
In determining that Plaintiff’s testimony regarding his physicial condition and limitations
was outweighed by other evidence, the ALJ looked to medical records during the relevant time
period. The ALJ found that those records showed that the Plaintiff had performed some activities,
such as playing cards, climbing into a bunk bed, and lifting weights, that refuted his testimony
regarding his limitations. As discussed above, the ALJ did not properly incorporate at least some
of these ill-advised activities into her opinion. The ALJ also found that because Plaintiff had refused
medication and medical treatment at various times throughout the relevant period, his subjective
testimony on his symptoms should be given little weight.
When considering non-compliance with treatment as a factor in determining whether a
claimant is impaired, an ALJ is required to make a determination about whether non-compliance
with treatment is justified and develop the record accordingly. See Thomas v. Colvin, 826 F.3d 953,
961 (7th Cir. 2016) (“[T]he ALJ concluded from [the plaintiff]’s gap in treatment . . . that her
symptoms were not as severe as she alleged, but, as noted, he did not explore her reasons for not
seeking treatment, another error.”); Craft, 539 F.3d at 679 (“[T]he ALJ ‘must not draw any
inferences’ about a claimant’s condition from this failure unless the ALJ has explored the claimant’s
explanations as to the lack of medical care.”) (quotation omitted).

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In her opinion, the ALJ made no attempt to discern Plaintiff’s reasons for avoiding treatment
and medication. The record in this case contains evidence that, shortly before Plaintiff refused to
take prescribed opioids, he quit using heroin, and Plaintiff specifically testified that he does not take
pain medication because of his past heroin problem. AR 14, 44, 55, 59. This evidence, along with
additional evidence in the record, suggests that Plaintiff did not comply with recommended medical
treatment because of his recent substance abuse. AR 35, 37, 41, 44, 59-60. In her examination of
Plaintiff, the ALJ asked why Plaintiff currently does not take any pain medications, but asked no
questions about why he did not take them at the relevant time and why he did not comply with or
seek out other treatments. The ALJ’s opinion did not include any possible explanation for Plaintiff’s
non-compliance.
An ALJ “will not find an individual’s symptoms inconsistent with the evidence in the record
. . . without considering possible reasons he or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints” and states that the ALJ must “explain how [she]
considered the individual’s reasons in [her] evaluation of the individual’s symptoms.” SSR 16-3p,
2016 WL 119029, at *8 (Mar. 16, 2016).1 In considering a claimant’s treatment history, the ALJ
“may need to contact [the claimant] regarding the lack of treatment or, at an administrative

1
SR 16-3p, which superseded SSR 96-7p, became effective on March 28, 2016, well after the ALJ issued her
opinion and shortly after briefing in this case concluded. However, SSR 16-3p, by its own terms, was a clarification of
existing law rather than a substantive change. See SSR 16-3p, 2016 WL 1237954, at *1 (Mar. 24, 2016) (setting SSR
16-3p’s effective date); SSR 16-3p, 2016 WL 119029, at *1 (Mar. 16, 2016) (noting that the purpose of 16-3p was to
“clarify that subjective symptom evaluation is not an examination of an individual’s character” by “eliminating the use
of the term ‘credibility’ from [the SSA’s] sub-regulatory policy”); see also Qualls v. Colvin, 14-CV-2526, 2016 WL
1392320, at *6 (Apr. 8, 2016). A court reviewing an ALJ’s decision may apply a new SSR where the new regulation is
a clarification of rather than a substantive change to existing law. Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir.
1993), overruled on other grounds by Johns v. Apfel, 189 F.3d 561 (7th Cir. 1999). Accordingly, although the parties
did not address Rule 16-3p in their briefs, they did address SSR 96-7p, which contained the same relevant law as 16-3p.
Therefore, the Court has applied SSR 16-3p and concludes that the ALJ’s assessment of Plaintiff’s non-compliance with
his treatment was deficient under both SSR 16-3p and SSR 96-7p.

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proceeding, ask why he or she has not complied with or sought treatment in a manner consistent
with his or her complaints.” Id. Accordingly, the Court will remand for additional proceedings so
that the ALJ can incorporate Plaintiff’s explanation for avoiding treatment into her assessment of
Plaintiff’s testimony.
D.

Vocational Expert Testimony

The Plaintiff also argues that the ALJ reversibly erred in failing to adequately assess the
vocational expert’s testimony. Specifically, Plaintiff argued that the ALJ did not address the VE’s
testimony that there would be no jobs available for someone who could not frequently use his hands
for handling and fingering. The Commissioner asserts that Plaintiff’s argument on this topic is
essentially a rehashing of Plaintiff’s RFC argument.
The case is being remanded for other reasons described above, and new VE testimony will
likely need to be obtained and considered based on the appropriate RFC findings. The ALJ is
cautioned that he must incorporate all relevant limitations in her questioning of the VE.
E.

Remedy

Plaintiff requests that the Court reverse the Commissioner’s decision and remand for an
award of benefits. An award of benefits is appropriate “only if all factual issues have been resolved
and the record supports a finding of disability.” Briscoe, 425 F.3d at 356. On remand, the ALJ will
likely need to solicit additional evidence, especially evidence concerning Plaintiff’s non-compliance
with medical treatment. Accordingly, the Court will remand this matter for further proceedings.
V.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the Motion for Remand [DE 19],

REVERSES the Administrative Law Judge’s decision, and REMANDS this matter to the

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Commissioner for further proceedings consistent with this opinion. However, the Court DENIES
Plaintiff’s request to award benefits.
So ORDERED this 9th day of September, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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