Sagastume v. Carolyn W. Colvin
Filing
24
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/29/2015. (aos, Deputy Clerk) Modified on 9/29/2015 (aos, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
JOSE D. SAGASTUME,
*
*
Plaintiff,
*
*
v.
*
*
*
CAROLYN W. COLVIN,
*
Acting Commissioner of Social Security,
*
*
Defendant.
*
************
Civil No. TMD 14-2712
MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Jose D. Sagastume (“Plaintiff”) seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his applications for disability insurance benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment and alternative motion for
remand (ECF No. 13) and Defendant’s Motion for Summary Judgment (ECF No. 23).1 Plaintiff
contends that the administrative record does not contain substantial evidence to support the
Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the
reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 13) is GRANTED.
1
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
I
Background
Plaintiff was born in 1966, has a third-grade education, and previously worked as a fence
installer and landscaper. R. at 259, 264, 269. On September 11, 2008, Plaintiff applied for DIB
and SSI (with a protective filing date of August 22, 2008), alleging disability beginning on
October 31, 2007, due to a broken left arm and hand; limited range of motion in the left arm,
hand, and fingers; and high blood pressure. R. at 220-34, 259, 263. The Commissioner denied
Plaintiff’s applications initially and again on reconsideration, so Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). R. at 101-04, 127-36. On June 17, 2010, ALJ
Eugene Bond held a hearing in Washington, D.C., at which Plaintiff and a vocational expert
(“VE”) testified. R. at 46-63. On August 12, 2010, the ALJ issued a decision finding Plaintiff
not disabled from October 31, 2007, through the date of the decision. R. at 105-19. On July 16,
2012, the Appeals Council granted Plaintiff’s request for review, vacated the ALJ’s decision, and
remanded the case for further proceedings. R. at 120-26.
On January 16, 2013, ALJ Thomas Mercer Ray held a supplemental hearing at which
Plaintiff and another VE testified. R. at 64-100. On April 4, 2013, the ALJ issued a decision
finding Plaintiff not disabled from October 31, 2007, through the date of the decision. R. at 2845. Plaintiff sought review of this decision by the Appeals Council. R. at 26-27. The Appeals
Council granted Plaintiff’s request for review on June 23, 2014, and issued a decision finding
Plaintiff disabled from October 31, 2007, through May 9, 2010, but not disabled from May 10,
2010, through the date of ALJ Ray’s decision on April 4, 2013. R. at 1-15. The Appeals
Council’s decision thus became the final decision of the Commissioner.
2
See 20 C.F.R.
§§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083
(2000).
On August 22, 2014, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.
II
Summary of Evidence
The Court reviews the relevant evidence here and in Part VI below.
A.
State Agency Medical Consultants
On October 22, 2008, a state agency consultant, E. Nakhuda, M.D., assessed Plaintiff’s
physical residual functional capacity (“RFC”). R. at 423-30. Dr. Nakhuda opined that Plaintiff
could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or
walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an
eight-hour workday; and (4) perform limited pushing and/or pulling with the upper extremities.
R. at 424. Plaintiff frequently could balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs (but never ladders, ropes, or scaffolds). R. at 425. His reaching and fingering were limited
because of his left hand and shoulder, and he was to avoid concentrated exposure to hazards. R.
at 426-27. Plaintiff had no visual or communicative limitations. R. at 426-27.
On December 16, 2008, another state agency medical consultant, S. Rudin, M.D., also
assessed Plaintiff’s physical RFC. R. at 431-38. Dr. Rudin opined that Plaintiff could (1) lift
and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total
3
of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday;
and (4) perform limited pushing and/or pulling with the upper extremities. R. at 432. Plaintiff
occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never
ladders, ropes, or scaffolds).
R. at 433.
Although he had no visual or communicative
limitations, Plaintiff’s reaching and fingering were limited because of his left hand and shoulder,
and he was to avoid concentrated exposure to hazards. R. at 434-35.
B.
Hearing Testimony
1.
Plaintiff’s Testimony
In his decision, ALJ Ray noted that Plaintiff “alleges fractures of [the] left wrist and
humerus. He states that these impairments result in being unable to do activities that require the
use of both arms/hands and limitations with lifting, completing tasks, concentration, and using
his hands.” R. at 36 (citing R. at 284); see R. at 71-87, 90-91.
2.
VE Testimony
According to the VE, a hypothetical individual with Plaintiff’s same age, education, work
experience, and the RFC outlined below in Part III.A could perform the light, unskilled2 jobs of
laminating machine operator, machine tender, or lobby attendant. R. at 39, 91-96.
III
Summary of Administrative Decisions
A.
ALJ Ray’s Decision
On April 4, 2013, ALJ Ray found that Plaintiff (1) had not engaged in substantial gainful
activity since the alleged onset date of disability of October 31, 2007; and (2) had an impairment
2
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Unskilled work
is work which needs little or no judgment to do simple duties that can be learned on the job in a
short period of time.” Id. §§ 404.1568(a), 416.968(a).
4
or a combination of impairments considered to be “severe” on the basis of the requirements in
the Code of Federal Regulations; but (3) did not have an impairment or a combination of
impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P,
app. 1; and (4) was unable to perform his past relevant work; but (5) could perform other work in
the national economy. R. at 34-39. The ALJ thus found that he was not disabled from October
31, 2007, through the date of the decision. R. at 40.
In so finding, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds;
stand and/or walk for a total of 6 hours in an 8 hour work day with normal breaks;
sit for a total of 6 hours in an 8 hour work day with normal breaks; unlimited as to
foot controls, but as to hand controls he may occasionally use hand controls with
his nondominant hand; can push and/or pull as much as he can lift and/or carry[;]
however, while there is no additional limitation on foot controls, he may only
occasionally use hand controls with his nondominant hand, there is no such
limitation on his dominant hand; frequently climb ramps/stairs; never climb
ladders/ropes/scaffolds; frequently balance, frequently stoop, kneel, crouch;
occasionally crawl; frequently handle with nondominant hand, unlimited in
handling with dominant hand; frequently finger with nondominant hand,
unlimited hand; must avoid frequent exposure to unprotected heights; must avoid
frequent exposure to moving mechanical parts; and frequently operate a motor
vehicle.
R. at 35-36.
The ALJ considered Plaintiff’s credibility and found that his “medically
determinable impairment could reasonably be expected to cause the alleged symptoms; however,
[his] statements concerning the intensity, persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained in this decision.” R. at 36.
Several elements in the record call into question the credibility of [Plaintiff’s]
allegations. His activities of daily living go beyond limitations that would
preclude work and include housework, mowing the lawn, sweeping, going outside
daily, walking, driving short distances, shopping in stores, regular church
attendance, and gardening [R. at 281-83]. Furthermore, he was playing the guitar
and piano in May 2012 as part of his therapy [R. at 697].
R. at 36.
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B.
Appeals Council Decision
After granting Plaintiff’s request for review, the Appeals Council issued its partially
favorable decision on June 23, 2014. R. at 1-15. Specifically, the Appeals Council found that
Plaintiff had an impairment that satisfied the criteria of Listing 1.073 during the closed period
from October 31, 2007, to May 9, 2010, with medical improvement thereafter. R. at 10-11. The
Appeals Council then found:
For the period beginning May 10, 2010, the Appeals Council adopts [ALJ Ray’s]
findings at steps one through five of the sequential evaluation process.
Specifically, the Council finds that [Plaintiff] had not engaged in substantial
gainful activity since October 31, 2007; that he had the following severe
impairment: fractures of left wrist and humerus; that this impairment did not meet
or medically equal one of the listed impairments; that he had the [RFC] to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
may occasionally use hand controls with his nondominant hand; can push and/or
pull as much as he can lift and/or carry; frequently climb ramps/stairs; never
climb ladders/ropes/scaffolds; frequently balance, frequently stoop, kneel, crouch;
occasionally crawl; frequently handle with nondominant hand, unlimited in
handling with dominant hand; frequently finger with nondominant hand; must
avoid frequent exposure to unprotected heights; must avoid frequent exposure to
moving mechanical parts; and frequently operate a motor vehicle; and that he was
unable to perform his past relevant work, but there are jobs that exist in
significant numbers in the national economy that he could perform.
R. at 9-10.
3
Listing 1.07 relates to a
[f]racture of an upper extremity with nonunion of a fracture of the shaft of the
humerus, radius, or ulna, under continuing surgical management, as defined in
1.00M, directed toward restoration of functional use of the extremity, and such
function was not restored or expected to be restored within 12 months of onset.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.07.
6
The Appeals Council noted that
[Plaintiff] was released from physical therapy on May 10, 2010 [R. at 674-83].
His September 29, 2011 annual physical noted he denied any musculoskeletal
symptoms, was in no acute distress, and did not note any extremity limitations [R.
at 733-37]. On January 9, 2012, he denied loss of grip strength and that he only
took advil for pain. On May 9, 2012, [Plaintiff] stated that he had been playing
the piano and guitar more and only with mild pain [R. at 697].
R. at 10.
The Appeals Council considered Plaintiff’s statements regarding his subjective
complaints and adopted ALJ Ray’s conclusions in this regard. R. at 11. The Appeals Council
ultimately found that Plaintiff’s condition “improved as of May 10, 2010 because there was a
decrease in severity based on changes in signs and symptoms. The medical improvement is
related to [Plaintiff’s] ability to work because the decrease in the severity of the signs and
symptoms resulted in an increase in his functional capacity.” R. at 11 (citations omitted).
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the 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 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); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”
42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
7
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).4
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
4
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
8
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
9
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
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differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Among Plaintiff’s arguments is his contention that the Appeals Council erred in finding
that his impairment no longer met the criteria of Listing 1.07 beginning on May 10, 2010,
because his condition had medically improved and resulted in an increase in his functional
capacity on that date. Pl.’s Mem. Supp. Mot. Summ. J. 9-11, ECF No. 13-1. The Commissioner
must follow certain steps when it finds medical improvement of a previously established
disabling condition.
20 C.F.R. §§ 404.1594(f)(1)-(8), 416.994(b)(5)(i)-(vii); see Czerska v.
Colvin, Civil Action No. TMD 12-2238, 2013 WL 5335406, at *1 n.1 (D. Md. Sept. 20, 2013).
The evaluation process requires the Commissioner to consider whether (1) the claimant has
engaged in substantial gainful activity, 20 C.F.R. § 404.1594(f)(1); (2) the claimant has an
impairment or combination of impairments that meets or equals the requirements of the Listings,
id. §§ 404.1594(f)(2), 416.994(b)(5)(i); (3) the claimant has seen medical improvement in his
previously
disabling
condition,
id.
§§ 404.1594(f)(3),
416.994(b)(5)(ii);
(4) medical
improvement is related to the claimant’s ability to do work, id. §§ 404.1594(f)(4),
416.994(b)(5)(iii); (5) an exception to medical improvement applies, id. §§ 404.1594(f)(5),
416.994(b)(5)(iv);
(6) all
current
impairments
are
severe,
id.
§§ 404.1594(f)(6),
416.994(b)(5)(v); (7) a claimant’s current RFC allows him to return to past relevant work, id.
§§ 404.1594(f)(7), 416.994(b)(5)(vi); and, if not, (8) the claimant can perform other work. Id.
§§ 404.1594(f)(8), 416.994(b)(5)(vii). “If the Commissioner finds conclusively that a claimant is
11
disabled at any point in this process, review does not proceed to the next step.” Davis v. Colvin,
No. 5:13-CV-98, 2015 WL 404213, at *4 (W.D.N.C. Jan. 29, 2015).
For the period between October 31, 2007, and May 9, 2010, the Appeals Council adopted
ALJ Ray’s findings at steps one and two of the five-step sequential evaluation process outlined
above in Part IV, but found that Plaintiff’s impairment during this period met Listing 1.07. R. at
10. For the period beginning May 10, 2010, however, the Appeals Council adopted ALJ Ray’s
findings at steps one through five of the sequential evaluation process. R. at 9. The Appeals
Council found that Plaintiff’s condition improved as of May 10, 2010, and that the medical
improvement was related to his ability to work because the decrease in the severity of the signs
and symptoms resulted in an increase in his functional capacity. R. at 11.
A decrease in the medical severity of an impairment sufficient to constitute medical
improvement must be substantiated by changes in signs, symptoms, or laboratory findings. 20
C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). To determine whether medical improvement has
occurred, the severity of the claimant’s current medical condition is compared to the severity of
the condition “at the time of the most recent favorable medical decision that [the claimant was]
disabled.” Id. The date of the most recent favorable medical decision is called the “point of
comparison.”
Id. § 404.1594(b)(7), 416.994(b)(1)(vii).
When, as here, however, the
Commissioner finds that the claimant is disabled for a closed period in the same decision in
which she found that a medical improvement occurred, the disability onset date is the “point of
comparison.” Small v. Astrue, No. 7:08-CV-141-FL, 2009 WL 3029737, at *10 (E.D.N.C. Sept.
22, 2009).
Symptoms are the claimant’s description of impairments. 20 C.F.R. §§ 404.1528(a),
416.928(a). Symptoms of disability may include “pain, fatigue, shortness of breath, weakness,
12
or nervousness.”
Id. §§ 404.1529(b), 416.929(b).
Medical improvement may also be
demonstrated by a decrease in the medical severity of an impairment as shown by changes in the
signs associated with the impairment. Id. §§ 404.1594(b)(1), 416.994(b)(1)(i). “Signs” are
“anatomical, physiological, or psychological abnormalities which can be observed, apart from [a
claimant’s] statements (symptoms).” Id. §§ 404.1528(b), 416.928(b). “Signs must be shown by
medically acceptable clinical diagnostic techniques.” Id. Finally, medical improvement may
also be demonstrated by a decrease in the medical severity of an impairment as shown by
changes in the laboratory findings associated with the impairment.
416.994(b)(1)(i).
Id. §§ 404.1594(b)(1),
Laboratory findings “are anatomical, physiological, or psychological
phenomena which can be shown by the use of medically acceptable laboratory diagnostic
techniques. Some of these diagnostic techniques include chemical tests, electrophysiological
studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and
psychological tests.” Id. § 404.1528(c); see 20 C.F.R. § 416.928(c).
Here, the Appeals Council noted that, on September 29, 2011, Plaintiff denied having any
pain and that on January 9, 2012, he denied loss of grip strength. R. at 10, 711, 733. Substantial
evidence does not support the Commissioner’s finding of medical improvement of Plaintiff’s
condition on May 10, 2010, however. Although the Appeals Council noted that Plaintiff was
discharged from physical therapy on May 10, 2010 (R. at 10), his physical therapy was
discontinued because he had demonstrated limited response to therapy and had not made
functional gains (R. at 680, 682). On that date, Plaintiff did not demonstrate range of motion in
his left hand necessary to perform functional grasp. R. at 682. Substantial evidence does not
support the Commissioner’s determination that Plaintiff’s functional use of his left upper
extremity was restored on May 10, 2010, with the capacity to use occasionally hand controls or
13
to handle and finger frequently or even occasionally with that extremity. R. at 10; see R. at 9196. The Appeals Council did not find that maximum benefit from therapy had been achieved on
May 10, 2010, see 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00(M)-(N), and “a court may not guess
at what an agency meant to say, but must instead restrict itself to what the agency actually did
say.” Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009). Thus, the Court remands this matter
for further proceedings under the fourth sentence of 42 U.S.C. § 405(g) and need not address
Plaintiff’s remaining arguments.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 23) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 13) is GRANTED. Defendant’s final decision is
REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g).
This matter is
REMANDED for further proceedings consistent with this opinion. A separate order shall issue.
Date: September 29, 2015
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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