Bland v. Berryhill

Filing 18

JUDGMENT in favor of Terry Bland against Nancy Berryhill. The case is REMANDED FOR FURTHER PROCEEDINGS. CASE CLOSED. Signed by Magistrate Judge Jane M. Virden on 4/25/19. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
TERRY BLAND,
Plaintiff,
v.
NANCY BERRYHILL
Commissioner of the Social Security,
Defendant.

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Civil No.: 3:18cv00117-JMV

FINAL JUDGMENT
This cause was before the court on Plaintiff’s complaint for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration denying
claims for a period of disability and disability insurance benefits and supplemental security
income. The parties consented to entry of final judgment by the United States Magistrate Judge
under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth
Circuit. The court, having reviewed the administrative record, the briefs of the parties, and the
applicable law, and having heard oral argument, finds as follows:
Consistent with the court’s ruling from the bench during a hearing held April 24, 2019,
the court finds the ALJ’s decision is not supported by substantial evidence in the record. The
ALJ’s determination at step two of the sequential evaluation process that the claimant’s tremor
was non-severe is not supported by substantial evidence in the record. Treatment notes dated
November 18, 2014, indicate the claimant was assessed with a “moderate tremor” of the left and
right arms and prescribed Neurontin. Furthermore, medical records from the claimant’s treater
and the report of the consultative examiner, respectively, indicate the claimant exhibited a tremor

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(while writing) and coarse shaking (while touching his toes) of his upper extremities, and the
claimant consistently complained he shook uncontrollably and testified he dropped food while
attempting to eat1. This error was prejudicial to the claimant in view of the ALJ’s failure to
consider the claimant’s tremor while crafting an RFC and before concluding the claimant was
capable of a full range of light work activity—which could require significant reaching and
handling in many cases. Cf. Loza v. Apfel, 219 F.3d 378 (5th Cir. 2000) (reversing and
remanding case to district court with instructions to vacate Commissioner’s decision where there
was a step two error and case had proceeded to step five).
On remand, the ALJ must reconsider the claimant’s tremor. The ALJ must order a
physical consultative examination of the claimant and provide the consultative examiner with
copies of all the relevant medical evidence in the file. The ALJ must obtain from the
consultative examiner a function-by-function assessment of physical RFC that takes into account
all the claimant’s physical impairments, including, but not limited to, his tremor. The ALJ must,
after obtaining this new evidence, seek the assistance of a medical advisor before reaching a
determination of the claimant’s RFC. The ALJ must, likewise, (as it relates to the relevant
periods for both the claimant’s DIB and SSI applications) obtain from the medical advisor a
function-by-function assessment of physical RFC that takes into account all the claimant’s
physical impairments, including, but not limited to, his tremor. To the extent the ALJ needs
clarification of or further explanation for any medical opinion, the ALJ must obtain it from the
appropriate physician prior to rendering a new decision. Ultimately, the ALJ must make a new
RFC determination that is supported by substantial evidence in the record. Further, the ALJ

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This testimony was not controverted by any evidence identified by the ALJ.

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must provide an explanation, supported by substantial evidence in the record, for rejecting any
physician’s opinion. And, to the extent necessary, the ALJ must obtain supplemental vocational
expert evidence on the issue of whether there is any work the claimant can perform, considering
all his impairments.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this case is REVERSED
and REMANDED for further proceedings.
This, the 25th day of April, 2019.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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