Nishchuk v. Colvin

Filing 16

REPORT AND RECOMMENDATIONS re 14 MOTION for Summary Judgment filed by Carolyn W. Colvin, 12 MOTION for Summary Judgment filed by Desiree Daniel Nishchuk Signed by: Judge Magistrate Judge Stephanie A Gallagher Objections to R&R due by 2/14/2014. Signed by Magistrate Judge Stephanie A Gallagher on 1/28/14. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DESIREE DANIEL NISHCHUK

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v.
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Civil Case No. ELH-13-310
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COMMISSIONER, SOCIAL SECURITY
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2013-06, the above-referenced case was referred to me to
review the parties’ cross-motions for summary judgment and to make recommendations pursuant
to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ motions.
ECF Nos. 12, 14, 15. This Court must uphold the Commissioner’s decision if it is supported by
substantial evidence and if proper legal standards were employed. 42 U.S.C. § 405(g); Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
I find that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For the reasons set forth
below, I recommend that both motions be denied, and that the case be remanded to the
Commissioner for further proceedings in accordance with this Report and Recommendations.
Ms. Nishchuk applied for Supplemental Security Income on November 18, 2009, alleging
a disability onset date of July 18, 2007. (Tr. 122-28). Her claim was denied initially on June 4,
2010, and on reconsideration on September 14, 2010. (Tr. 71-74, 76-77). An Administrative
Law Judge (“ALJ”) held a hearing on September 7, 2011, (Tr. 29-59), and subsequently denied
benefits to Ms. Nishchuk in a written opinion dated October 27, 2011. (Tr. 19-24).

The

Appeals Council declined review, (Tr. 1-6), making the ALJ’s decision the final, reviewable
decision of the agency.
The ALJ found that Ms. Nishchuk suffered from the severe impairments of lumbar disc
disease, chronic obstructive pulmonary disease, depression, arthritis, status post carpal tunnel

surgery, and hepatitis C. (Tr. 20). Despite these impairments, the ALJ determined that Ms.
Nishchuk retained the residual functional capacity (“RFC”) to:
sit for 8 hours in an 8 hour work day; the claimant can stand for 2 hours in an 8
hour work day; the claimant can walk for up to 1 hour in an 8 hour work day; can
lift/carry up to 20 pounds occasionally, and up to 10 pounds frequently; but the
claimant is mentally limited to unskilled, simple jobs, limited to SVP2.
(Tr. 21). After considering testimony from a vocational expert (“VE”), the ALJ determined that
there were jobs existing in significant numbers in the national economy that Ms. Nishchuk could
perform. (Tr. 23-24). Accordingly, the ALJ determined that Ms. Nishchuk was not disabled.
(Tr. 24).
Ms. Nishchuk disagrees.

She raises three primary arguments in support of her

appeal: (1) that the ALJ failed to assign appropriate weight to Dr. Sajadi’s opinion; (2) that the
ALJ failed to incorporate limitations pertaining to carpal tunnel syndrome; (3) and that the ALJ
assigned excessive weight to the opinion of the state agency physicians; yet failed to incorporate
some of their recommended limitations in the RFC assessment. I agree generally that the ALJ
did not provide sufficient analysis to permit me to evaluate whether his RFC assessment is
premised on substantial evidence. As a result, I recommend that the case be remanded for the
ALJ to fulfill his duty of explanation. In so recommending, I express no opinion as to whether
the ALJ's ultimate conclusion that Ms. Nishchuk is not entitled to benefits is correct or incorrect.
Specifically, the ALJ did not provide any discussion anywhere in his opinion regarding
Ms. Nishchuk’s alleged continuing limitations from her carpal tunnel syndrome, despite finding
her history of carpal tunnel issues to constitute a severe impairment.

The Commissioner

correctly notes that there is contradictory medical evidence in the record (and even within Dr.
Sajadi’s consultative examination report) regarding whether or not Ms. Nishchuk has continuing
manipulative and lifting limitations.

See, e.g., (Tr. 338) (Dr. Sajadi notes showing full grip

strength, wrist range of motion, and upper extremity strength); (Tr. 336) (Dr. Sajadi’s “Summary
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and Assessment” stating that, “She was not able to lift anything more than a few pounds.”). It
may therefore be possible to identify evidence in the record that could support a finding that Ms.
Nishchuk has no significant impairment. However, the ALJ did not cite to any of the medical
evidence at all, and it is not the role of the Court to guess what reasons the ALJ relied upon in
reaching his determination. Those reasons must be set forth in sufficient detail for this Court to
evaluate whether or not the ALJ's conclusions were supported by substantial evidence. See See v.
Washington Metro. Area Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994); see also Schoofield v.
Barnhart, 220 F.Supp.2d 512, 519 (D. Md. 2002). Because the ALJ did not fulfill that duty, the
case must be remanded for further explication of the reasons underlying his determination.
In making an adverse credibility determination, the ALJ also apparently rejected Ms.
Nishchuk’s own testimony about her continuing carpal tunnel limitations. However, the ALJ
made no specific factual findings to justify the adverse credibility determination, other than a
cursory conclusion that Ms. Nishchuk “under-states” her abuse of alcohol. (Tr. 23). In the
absence of any express discussion of the carpal tunnel issue by the ALJ, I cannot evaluate
whether or not his apparent conclusion that no manipulative or lifting limitation was needed is
based on substantial evidence.1 The determination is significant to the case, particularly because
the light jobs proposed by the vocational examiner (ticket seller, cashier, and price marker) all
involve fingering and manipulation, and because a restriction to sedentary employment would
have resulted in an award of benefits. See Dictionary of Occupational Titles 211.467-030,
211.462-010, 209.587-034, 4th ed. (1991) (showing that each position requires Level 3 finger
dexterity and frequent to constant fingering); 20 C.F.R. 416.965; 20 C.F.R. Pt. 404 Subpt. P.
App. 2 (“Medical-Vocational Guidelines”) § 201.12. I therefore recommend remand for further
explanation by the ALJ.
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I also note that some of the most pertinent medical records regarding Ms. Nishchuk’s carpal tunnel surgery appear
to have been scanned at an extreme angle, rendering them largely unintelligible. (Tr. 324-26). It is unclear whether
any party at any stage in these proceedings had access to a legible version of these records.

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While Ms. Nishchuk’s other arguments are less persuasive, on remand, I also recommend
that the ALJ address the reasons for any deviation between the state agency physicians’
recommendations and the RFC assigned to Ms. Nishchuk. The language in the current ALJ
opinion, which suggests that the medical opinions of the state agency physicians were credited,
does not explain the reasons that the ALJ opted against including some of the limitations that
those physicians had proposed, specifically relating to Ms. Nishchuk’s ability to perform
posturals. Compare (Tr. 341, 373) (state agency reports reflecting limitations in ability to climb,
balance, stoop, kneel, crouch, and crawl) with (Tr. 21) (RFC containing no postural limitations).
On remand, the ALJ should also expressly evaluate Dr. Sajadi’s assessment, particularly as it
relates to Ms. Nishchuk’s carpal tunnel syndrome.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant’s Motion for Summary Judgment (ECF No. 14);
2. the Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 12); and
3. the Court order the Clerk to REMAND the case to the Commissioner for further
proceedings and to CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b)(2) and Local Rule 301.5.b.

Dated: January 28, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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