Mason v. Colvin

Filing 22

Judge Rya W. Zobel: Memorandum of Decision entered granting 16 Motion for Order Reversing Decision of Commissioner; denying 20 Motion for Order Affirming Decision of Commissioner. Judgment may be entered reversing the decision of the Commission er andremanding to (1) reassess plaintiff's RFC in light of his physical limitations as supportedby the medical record, and (2) based upon that RFC determination, determine whetherthere are jobs that exist in the national economy that plaintiff can perform. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13570-RWZ
MARK ANTHONY MASON
v.
NANCY A. BERRYHILL,*
Acting Commissioner of the Social Security Administration
MEMORANDUM OF DECISION
March 29, 2017

ZOBEL, S.D.J.
Plaintiff Mark Anthony Mason appeals from a final decision by the Acting
Commissioner of Social Security Nancy A. Berryhill (Athe Commissioner@) upholding the
ruling of the Administrative Law Judge (AALJ@) that rejected his application for Social
Security Disability Insurance Benefits (ASSDI@). Plaintiff contends that the ALJ’s
decision is not supported by substantial evidence and that he erred by: (1) improperly
substituting his own interpretation of medical tests instead of adopting the findings of a
state agency physician; (2) failing to afford controlling weight to plaintiff=s treating
physicians= opinions; and (3) omitting key limitations in his residual functioning capacity
(ARFC@) assessment when presenting his hypothetical questions to the vocational
expert (AVE@).

*
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill has been substituted for Carolyn W. Colvin
as Acting Commissioner of the Social Security Administration.

I.

Background
Plaintiff filed an application for SSDI on May 12, 2014, alleging disability due to

various physical conditions beginning November 23, 2013. His claims were first denied
on August 14, 2014, and again upon reconsideration later in 2014. Plaintiff filed a
request for a hearing before an ALJ, and a hearing was held on June 23, 2015. At the
hearing, plaintiff and a VE testified.
A.

Applicable Statutes and Regulations

To show entitlement to SSDI benefits, a claimant must show that he is unable to
Aengage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which . . . has lasted or can be expected to last for a
continuous period of not less than 12 months.@ 42 U.S.C. ' 423(d)(1)(A). To meet this
definition, a claimant must have an impairment, or impairments, of such severity that it
renders him Anot 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 the national economy.@ Id. ' 423(d)(2)(A); see also 20 C.F.R. '
404.1505(a).
The ALJ analyzes whether a claimant is disabled using an established Afive-step
sequential evaluation process.@ See 20 C.F.R.' 404.1520(a)(4)(i)B(v). Under that
framework, the ALJ first determines whether the claimant is currently engaging in
substantial gainful work activity. If not, then at step two, the ALJ decides whether the
claimant has a Asevere@ medical impairment or impairments, which means the
impairment Asignificantly limits [the claimant=s] physical or mental ability to do basic work
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activities,@ id. ' 404.1520(c). If the claimant has a severe impairment or impairments,
the ALJ considers third whether the impairment or impairments meets or equals an entry
in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App=x 1, and meets the
duration requirement. If so, then the claimant is considered disabled. If not, the ALJ
must determine the claimant=s RFC, which is Athe most [a claimant] can still do despite
his limitations,@ 20 C.F.R. ' 404.1545(a)(1). The ALJ then moves to step four and
determines whether the claimant=s RFC allows him to perform his past relevant work. If
the claimant has the RFC to perform his past relevant work, he is not disabled. If the
claimant does not, the ALJ decides, at step five, whether the claimant can do other work
in light of his RFC, age, education, and work experience. If the claimant can, he is not
considered disabled; otherwise, he is. AOnce the applicant has met his or her burden at
Step 4 to show that he or she is unable to do past work due to the significant limitation,
the Commissioner then has the burden at Step 5 of coming forward with evidence of
specific jobs in the national economy that the applicant can still perform.@ Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see also 20 C.F.R. '' 404.1512(f),
404.1560(c)(2).
B.

The Initial Rejection and the ALJ=s Decision

In a July 22, 2015, written decision, the ALJ denied plaintiff=s SSDI application.
He first concluded that plaintiff meets the insured status requirements of the Social
Security Act through December 31, 2018. See 42 U.S.C. ' 423. Then, he structured
his decision around the five-step sequential evaluation process. At the first step, the
ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged

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onset date of his disability. Next, at step two, he found that plaintiff has the following
severe impairments: “neuropathy of the right arm, headaches, depression, and anxiety.”
R.1 at 12; see also 20 C.F.R. ' 404.1520(c). At step three, the ALJ found that plaintiff
does not have an impairment or combination of impairments that meets or medically
equals the severity of one of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Before moving to step four, the ALJ determined plaintiff=s RFC:
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
404.1576(b) except that he can only occasionally push and pull with the right
upper extremity; never climb ropes, ladders, and scaffolds; could
occasionally climb ramps and stairs, balance, stoop, crouch, and crawl; he
could occasionally reach, including overhead reaching on the right side; he
should avoid concentrated exposure to extreme cold, heat, and hazards
such as the operational control of moving machinery and unprotected
heights. Further, he could perform simple, routine, repetitive tasks in a low
stress job with no changes in the work setting, and only occasional
interaction with coworkers and no tandem tasks, and work with only
occasional supervision. Please note occasional means less than 1/3 of the
time.
R. at 14. The ALJ explained that although plaintiff=s Amedically determinable
impairments could reasonably be expected to cause the alleged symptoms . . . the
objective medical evidence and the record as a whole do not support that the [plaintiff]
experiences limitations that are as significant as alleged.@ Id. at 15.
At the fourth step, the ALJ concluded, relying on the VE=s testimony, that the
claimant was unable to perform past relevant work as an auto dealership assistant
service manager given his RFC. However, the ALJ determined based on the VE=s

1
“R.” refers to the Social Security administrative record, which was manually filed in this appeal at
ECF No. 15.

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testimony that Aconsidering the claimant=s age, education, work experience, and residual
functioning capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform.@ Id. at 23. The VE further testified that the
claimant could perform light, unskilled jobs such as a bench assembler, bench inspector,
and tagger and labeler. Accordingly, the ALJ concluded that the claimant was not
disabled under the Social Security Act.
C.

The Appeal

Plaintiff appealed the ALJ=s decision to the SSA=s Appeals Council, which denied
review on August 12, 2015. The ALJ=s decision then became the final decision of the
Commissioner. Plaintiff now seeks reversal of that determination pursuant to 42 U.S.C.
' 405(g).
II.

Standard of Review
The Commissioner=s findings of fact are conclusive if based on the correct legal

standard and supported by substantial evidence. 42 U.S.C. ' 405(g); Seavey, 276 F.3d
at 9. Substantial evidence includes Asuch relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.@ See Richardson v. Perales, 402
U.S. 389 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). So long as the Commissioner=s determinations are supported by substantial
evidence, they must be affirmed, Aeven if the record arguably could justify a different
conclusion.@ Rodriguez Pagan v. Sec=y Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987) (per curiam). Questions of law are reviewed de novo. Seavey, 276 F.3d at 9.

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III.

Discussion
A.

ALJ’s RFC Assessment

Plaintiff primarily argues that the ALJ erred in determining plaintiff’s RFC because
he discredited treating physicians’ opinions and improperly “substituted his own
interpretation of the EMG studies to determine Plaintiff has no limitations in manipulative
functioning in the right upper extremity.” Docket # 17, at 15.
When measuring a claimant’s capabilities, “an expert's RFC evaluation is
ordinarily essential unless the extent of functional loss, and its effect on job performance,
would be apparent even to a lay person.” Santiago v. Sec'y of Health & Human Servs.,
944 F.2d 1, 7 (1st Cir. 1991) (per curiam). The reason for requiring an expert’s RFC
assessment is that generally, “an ALJ, as a lay person, is not qualified to interpret raw
data in a medical record.” Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d
15, 17 (1st Cir. 1996) (per curiam); see also Gordils v. Sec'y of Health & Human Servs.,
921 F.2d 327, 329 (1st Cir. 1990) (per curiam) (“[S]ince bare medical findings are
unintelligible to a lay person in terms of residual functional capacity, the ALJ is not
qualified to assess residual functional capacity based on a bare medical record.”). “This
principle does not mean, however, that the [Commissioner] is precluded from rendering
common-sense judgments about functional capacity based on medical findings, as long
as the [Commissioner] does not overstep the bounds of a lay person's competence and
render a medical judgment.” Gordils, 921 F.2d at 329.
Here, the record contained five RFC evaluations by five physicians: (1) August 12,

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2014 by state agency physician2 Dr. Draper (R. at 77–79); (2) November 3, 2014, by
plaintiff’s primary care physician Dr. John Shaver (R. at 445–46); (3) December 22,
2014, by state agency physician Dr. Subbiah Doraiswami (R. at 92–94); (4) April 15,
2015, by plaintiff’s treating psychiatrist Dr. Peter Gheradi (R. at 454–55); and (5) May 12,
2015, by plaintiff’s treating neurologist Dr. Ranbir Dhillon (R. at 501–03).
Both state agency physicians opined that plaintiff had “limited” gross manipulation
abilities and was “limited” in his upper extremities. Id. at 77–78, 92–93. Dr. Shaver,
opined that during an 8-hour workday, plaintiff had limitations in repetitive reaching,
handling or fingering, and no ability in his right hand to grasp, turn, twist objects, perform
fine manipulation with his fingers, or reach with his right arm. Id. at 445. He further
opined that plaintiff would likely be absent from work more than four times a month and
was physically incapable of working an 8-hour day, 5 days a week on a sustained basis.
Id. Lastly, he found that plaintiff was not a malingerer. Id. Dr. Gheradi made the
same exact determinations as Dr. Shaver. Dr. Dhillon largely agreed, with the exception
that he opined plaintiff could grasp, turn, twist objects, and manipulate with his right hand
twenty percent of an 8-hour work day, and reach with his right arm ten percent of the
workday. Id. at 501–03. The ALJ did not credit Dr. Gherardi’s opinion because he
“does not treat the claimant’s physical conditions and his assessment of physical
limitations would likely be based on the claimant’s subjective complaints.” Id. at 22.
Dr. Gherardi’s opinion, however, was consistent with Drs. Shaver and Dhillon, both of

2
The ALJ did not address either of the state agency physicians’ RFC evaluations in detail other
than to state that he had “given weight to the opinion of the State agency consultants involved in the
present case, but only to the extent that the opinions are consistent with the evidence of record.” R. at 23.

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whom conducted physical examinations of plaintiff.
The ALJ did not credit these opinions and disregarded the findings by Drs. Shaver
and Dhillon because the “EMG studies of the upper extremities were normal[.]” Id. at
22. He did rely on three reports by Dr. Dhillon to conclude that “the medical evidence
and the record as a whole do not support disabling impairments.” Id. at 19.
Specifically, in July 2014, Dr. Dhillon concluded that the “EMG did not show any
evidence of denervation.” Id. at 378. Then, in August 2014, Dr. Dhillon reported that
“EMG shows the presence of mild ulnar neuropathy. However, there is no indication of
muscle damage by EMG.” Id. at 402. Later, on May 29, 2015, Dr. Dhillon concluded
that “[n]erve conduction studies were normal in both upper extremities. EMG report did
not show any denervation of the left extremity.” Id. at 507. The ALJ, however, does
not explain how the EMG reports undermine the physicians’ opinions. Although the ALJ
correctly notes that the contemporaneous medical evidence reflected that “his
examinations have shown some sensory loss, but otherwise unremarkable findings and
no evidence of a neurological impairment,” id. at 20, the medical record consistently
reflected that multiple of plaintiff’s treating physicians determined that he had limited
ability in his hands and fingers. “The ALJ was not at liberty to ignore medical evidence
or substitute his own views for uncontroverted medical opinion.” Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999) (citations omitted). Dr. Dhillon, who reported on plaintiff’s
EMG studies, was the same physician who opined that plaintiff had a limited ability to
manipulate with his right hand. This suggests that the EMG studies, which focused on
muscle damage to plaintiff’s upper extremities, may not have evaluated plaintiff’s fine

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manipulation abilities—which was the focus of the RFC evaluations by plaintiff’s treating
physicians.
1.

VE Testimony

Plaintiff further argues that because the ALJ disregarded the treating physicians’
opinions he omitted key physical limitations when presenting his hypothetical questions
to the VE at plaintiff=s hearing. As a result, plaintiff contends, the VE=s testimony lacked
any probative value and the ALJ=s decision was unsupported by substantial evidence. I
agree.
ALJs must provide VEs with a complete picture of a claimant=s residual functional
capacity, and VEs must consider physical limitations. See Arocho v. Sec.=y of Health
and Human Servs., 670 F.2d 374, 375 (1st Cir. 1982) (A[I]n order for a vocational
expert=s answer to a hypothetical question to be relevant, the inputs into that hypothetical
must correspond to conclusions that are supported by the outputs from the medical
authorities.@). Thus, the ALJ must Aboth clarify the outputs (deciding what testimony will
be credited and resolving ambiguities), and accurately transmit the clarified output to the
expert in the form of assumptions.@ Id. AWhen an ALJ=s hypothetical assumes that
certain functional limitations do not exist, and when the >medical evidence did not permit
that assumption,= the ALJ cannot >rely on the vocational expert=s response as a basis for
finding claimant not disabled.@ Lema v. Astrue, No. 09-11858-MLW, 2011 WL 1155195,
at *6 (D. Mass. March 21, 2011) (quoting Rose v. Shalala, 34 F.3d 13, 19 (1st Cir.
1994)). And though the hypothetical questions posed by an ALJ to a VE must include
only the physical and mental limitations the judge deems credible, the ALJ did not do that

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in this case.
Here, the ALJ posed a hypothetical to the VE that did not include the physical
limitations, which, as discussed above, were supported by uncontroverted medical
opinions. Based on this RFC, the VE testified that there are “light, unskilled jobs” for
plaintiff to perform. R. at 63. Plaintiff=s attorney, however, asked the VE whether his
opinion would change about the jobs plaintiff could perform if the hypothetical included
the additional fact that plaintiff=s Aability to handle and finger 20 percent of the day, and
reach 10 percent of the day with the right upper extremity[.]@ Id. at 63. Significantly,
the VE responded that this additional limitation would change his testimony and that
A[n]o, that=s not going to allow for [the light, unskilled] occupations. And if the handling
and fingering, essentially they’re manipulatives [sic] and even – and the reaching on the
dominant are less than occasional. That=s going to have a very significant impact on the
unskilled labor market.@ Id. at 64. Plaintiff=s attorney incorporated the opinions of
plaintiff’s treating physicians in her hypotheticals to the VE:
Q: In your opinion, if the individual were to be off task due to physical and/or
mental limitations for 15% of a work day on a continued basis, how would
that affect their employability?
A: It would not allow for sustaining competitive employment.
Q: In your opinion, what is the maximum percentage of time off task before
it’s problematic?
A: It would – well, if – what I typically – my opinion based on the productivity
surveys that, that the average employee is non-productive from
approximately 10 percent or 6 minutes per hour, and that includes work
breaks over the – you know, over, over the day, so that if they were
substantially – and 15 percent or more, they would not be able to
sustain any competitive employment.
Q: Okay. And if the individual were to be absent four or more days per month,
how would that affect their employability?
A: Four or more days per month, 48 days annually would be an excessive
absenteeism and not be tolerated.
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Q: And what is the accepted rate of absenteeism?
A: There’s research about how many days until you get fired, but if we look
at utilization, the average number of sick and personal days taken by
employees who have paid sick and personal days is eight annually.
Q: So when we get above that, it become problematic?
A: You’re going to be – yeah, yeah, it would be problematic.
Id. at 67–68 (emphasis added). The ALJ, however, did not take this testimony into
consideration, and instead relied solely on the VE=s testimony in response to his original
hypothetical that did not include any of the limitations posed by plaintiff=s counsel, nor
described by the treating physicians. Failing to include a functional limitation in a
hypothetical question to a VE requires a case to be remanded. See Rose, 34 F.3d at
19 (holding that ALJ=s omission in his hypothetical of a significant functional limitation
from claimant=s condition required remand).
IV.

Conclusion
Plaintiff=s Motion for Order Reversing the Commissioner=s Decision (Docket # 16)

is ALLOWED, and Defendant=s Motion to Affirm the Commissioner=s Decision (Docket #
20) is DENIED.
Judgment may be entered reversing the decision of the Commissioner and
remanding to (1) reassess plaintiff=s RFC in light of his physical limitations as supported
by the medical record, and (2) based upon that RFC determination, determine whether
there are jobs that exist in the national economy that plaintiff can perform.

____March 29, 2017____
Date

__________/s/Rya W. Zobel ____
Senior United States District Judge

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