NORMAN v. COLVIN
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/08/2017, that the Commissioner's decision finding no disability be reversed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be granted, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be denied, and that the matter be remanded for an award of benefits. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL RAY NORMAN,
NANCY A. BERRYHILL,
Acting Commissioner of Social
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michael Ray Norman, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
(Docket Entry 2.)
Defendant has filed the
certified administrative record (Docket Entry 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 13; see also Docket Entry 11 (Plaintiff’s Memorandum);
For the reasons that follow, the Court
should remand this matter for an award of benefits.
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Plaintiff applied for SSI. (Tr. 338-43.) Upon denial of that
application initially (Tr. 172-85, 219-22) and on reconsideration
(Tr. 186-200, 228-37), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 238-40).
attorney, and a vocational expert (“VE”) attended the hearing.
The ALJ subsequently ruled that Plaintiff qualified
as disabled under the Act since May 13, 2012, the alleged onset
The Appeals Council thereafter issued a
notice (Tr. 284-88) that it planned to “set aside the favorable
hearing decision and send [Plaintiff’s] case back to an [ALJ] for
more action and a new decision” (Tr. 285).
argument and new evidence submitted by Plaintiff’s counsel (see Tr.
the Appeals Council entered an order remanding the case
to an ALJ
for further proceedings.
Plaintiff, his attorney, a medical expert (“ME”), and a VE
attended the second hearing.
The ALJ subsequently
ruled that Plaintiff did not qualify as disabled under Act.
The Appeals Council thereafter denied Plaintiff’s request
for review (Tr. 1-6, 48-51, 479-82), thereby making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
[Plaintiff] has not engaged in substantial gainful
activity since July 26, 2012, the application date.
[Plaintiff] has the following severe impairments:
status post deep laceration to the right wrist with
repair; status post left ankle injury and surgical
repair; knee pain due to internal derangement of the
functioning; substance addiction; r/o mood disorder; and
r/o anti-social personality.
. . .
[Plaintiff’s] impairments, including the substance
abuse disorder, meet section 12.04 (Affective Disorders)
of 20 CFR Part 404, Subpart P, Appendix 1.
. . .
If [Plaintiff] stopped the substance use, the
remaining limitations would cause more than a minimal
impact on [Plaintiff’s] ability to perform basic work
activities; therefore, [Plaintiff] would continue to have
a severe impairment or combination of impairments.
[Plaintiff] would not have an impairment or combination
of impairments that meets or medically equals any of the
impairments listed in 20 CFR Part 404, Subpart P,
. . .
[Plaintiff] would have the residual functional capacity
to perform light work . . . except that he is limited to
frequent but not continuous pushing and pulling with the
right upper extremity with no limitation in pushing or
pulling with the left extremity. He can occasionally
climb ramps and stairs but never climb ladders, ropes, or
He can engage in occasional balancing,
stooping, crouching, and crawling.
He can engage in
handling and fingering with the right hand that is
frequent but not continuous. There are no manipulative
limitations with the left upper extremity.
avoid concentrated exposure to the operational control of
moving machinery and working at unprotected heights. He
is also limited to performing simple routine repetitive
tasks in a low stress work setting that involves only
occasional changes in the work setting and has no pace or
He can handle occasional
interaction with the public and coworkers and can respond
appropriately to supervision.
. . .
[Plaintiff] would be unable to perform past relevant
. . .
experience, and residual functional capacity, there would
be a significant number of jobs in the national economy
that [Plaintiff] can perform.
. . .
12. The substance use disorder is a contributing factor
material to the determination of disability because
[Plaintiff] would not be disabled if he stopped the
substance use. Because the substance use disorder is a
contributing factor material to the determination of
disability, [Plaintiff] has not been disabled within the
meaning of the . . . [Act] at any time from the date the
application was filed through the date of this decision.
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given those limitations, the Court should remand this case for
an award of benefits.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
the Court “must uphold the factual findings of the ALJ if they are
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program provides benefits to disabled persons who have contributed to
the program while employed.
[SSI] provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
Craig, 76 F.3d at 589 n.1 (internal citations
education, and work experience in addition to [the claimant’s]
‘sequential evaluation process’ to determine whether a claimant is
This sequential evaluation process (“SEP”) has up to five
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
“Through the fourth step, the burden of production and proof is on the
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
See id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
Hines, 453 F.3d at 567.5
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
Assignment of Error
In Plaintiff’s sole issue on review, he contends that “[t]he
ALJ failed to form a logical bridge between the evidence and her
conclusions regarding Plaintiff’s ability to use his right hand and
(Docket Entry 11 at 4 (bold font omitted).)
disability was initially approved by ALJ Michael Hazel [after the
first hearing] pursuant to an RFC for light work with no use of
[Plaintiff’s] right hand for lifting and only occasional use for
overhead reaching, handling, fingering, pushing or pulling for less
than two hours per day.”
(Id. (citing Tr. 208).)
Plaintiff, the Appeals Council “remanded ALJ Hazel’s decision
because it did not give adequate consideration to the effects of
[Plaintiff’s] alcohol dependence on his intellectual functioning”
(id. at 5 (citing Tr. 214-15), but “specifically noted that ‘[it]
ha[d] not raised any issue with respect to [Plaintiff’s] ability to
use his right hand’” (id. (citing Tr. 216)).
Plaintiff faults ALJ
Helen O. Evans for advising Plaintiff’s “counsel at the [second]
hearing that she would be reevaluating the entire RFC” (id.
(citing Tr. 63-65, 88-90, 97)), and for “act[ing] extra-judicially
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
in upping Plaintiff’s RFC to frequent use of his right hand” in
violation of Albright, 174 F.3d at 477 (Docket Entry 11 at 5).
Plaintiff’s ability to use his right hand, [which] became the final
decision of the Commissioner and was subject to res judicata.”
Lastly, Plaintiff argues that, even if res judicata did not
attach to ALJ Hazel’s findings respecting Plaintiff’s right hand,
ALJ Evans “failed to articulate why [Plaintiff] was capable of
using his right hand frequently as opposed to no lifting and only
occasionally for other activities as ALJ Hazel and [consultative
examiner] Dr. [Stephen] Burgess found.”
Plaintiff asserts that ALJ Hazel “included a rote recitation of
some of the medical evidence in the case, much of which militate[d]
in [Plaintiff’s] favor . . ., but at no point d[id] [the ALJ]
provide a logical bridge between this evidence and her right hand
RFC finding for frequent use.”
(Id. at 6 (citing Monroe v. Colvin,
826 F.3d 176, 189-90 (4th Cir. 2016), and Hutchins v. Colvin, No.
1:15-cv-186-FDW, 2016 WL 3513397, at *3 (W.D.N.C. June 27, 2016)
Plaintiff deems “very harmful” the “ALJ’s errors
extremity] impairment, because the VE at the second hearing . . .
testified that if [Plaintiff] were limited to occasional use of the
[right upper extremity] for handling and fingering, there would be
no jobs he could perform.”
(Id. at 11 (citing Tr. 114-15)
(internal citation omitted).)
Plaintiff contends that “the ALJ’s
decision should be reversed for an award of benefits[,] as on the
state of the record, [Plaintiff’s] entitlement to benefits is
wholly established (as ALJ Hazel had originally found)” (id. at 1112 (citing Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980)), or,
“[i]n the alternative, . . . remanded for proper evaluation of the
medical evidence and for the ALJ to articulate how her RFC findings
contentions ultimately warrant relief.
1. Res Judicata
The recent decision of the United States Court of Appeals for
the Fourth Circuit in Monroe forecloses Plaintiff’s argument that
the Appeals Council “specifically affirmed ALJ Hazel’s findings
with respect to Plaintiff’s ability to use his right hand, [which]
became the final decision of the Commissioner and was subject to
res judicata,” and that ALJ Evans “acted extra-judicially in upping
Plaintiff’s RFC to frequent use of his right hand” in violation of
Albright, 174 F.3d at 477.
(Docket Entry 11 at 5.)
In Monroe, the
claimant argued that the ALJ “erred in not affording great weight
to the findings [a prior ALJ] made regarding [the claimant’s]
severe impairments in [a] . . . decision” vacated by the Appeals
Monroe, 826 F.3d at 186-87.
The Fourth Circuit rejected
the claimant’s argument under the following reasoning:
The fact that the Appeals Council vacated [the first
ALJ’s] decision and remanded for a new decision is
dispositive here. The [Social Security Administration
(“SSA”)] treats the doctrine of res judicata as applying
when it has “made a previous determination or decision
. . . on the same facts and on the same issue or issues,
and this previous determination or decision has become
final by either administrative or judicial action.” 20
C.F.R. §§ 404.957(c)(1), 416.1457(c)(1) (emphasis added);
see Lively v. Secretary of Health and Human Servs., 820
F.2d 1391, 1392 (4th Cir. 1987) (“Congress has clearly
reappraisal of both the Secretary’s finding and his
decision in Social Security cases that have become
final.”) Here, [the first ALJ’s] decision, having been
vacated, never became final, and thus the doctrine of res
judicata did not apply.
[The claimant] maintains that our decisions in Lively and
Albright, and Social Security Acquiescence Ruling 001(4), 65 Fed. Reg. 1936-01 (Jan. 12, 2000) [(“AR 001(4)”)], require a different result. That is not the
case, however. Interpreting Albright and Lively, [AR]
00-1(4) explained that “where a final decision of SSA
after a hearing on a prior disability claim contains a
finding required at a step in the [SEP] for determining
disability, SSA must consider such finding as evidence
and give it appropriate weight in light of all relevant
facts and circumstances when adjudicating a subsequent
disability claim involving an unadjudicated period. 65
Fed. Reg. at 1938 (emphasis added).
Nothing in that
rule, or in our circuit precedent, indicates that
findings in prior non-final decisions are entitled to any
weight. See 20 C.F.R. §§ 404.981, 416.1481 (“The Appeals
Council’s decision, or the decision of the [ALJ] if the
request for review is denied, is binding unless you or
another party file an action in Federal district court,
or the decision is revised.” (emphasis added)).
Accordingly, [the second ALJ] did not err in considering
[the claimant’s] applications de novo.
Monroe, 826 F.3d at 186-87.
In reply, Plaintiff attempts to distinguish Monroe by arguing
that, “[w]hile it is true that res judicata does not apply to those
portions of an ALJ’s decision vacated by the [Appeals Council], the
[Appeals Council] vacated the first ALJ’s decision in this case
with respect to his inadequate evaluation of the effects of alcohol
abuse on [Plaintiff’s] mental limitations (Tr. 214-15) and then
noted the following:
[Plaintiff’s] drug and alcohol abuse would not affect the
use of his right hand. This argument misstates the issue
on remand. We have not raised any issue with respect to
[Plaintiff’s] ability to use his right hand. The issue
is the affect [sic] [Plaintiff’s] drug and alcohol abuse
has on his ability [to] sustain attention and
concentration for the completion of simple, routine, and
repetitive tasks throughout a typical workday.” (Docket
Entry 15 at 1 (emphasis by Plaintiff) (citing Tr. 216).)
According to Plaintiff, the Appeals Council “left the prior ALJ’s
occasional use of his right hand (Tr. 208) undisturbed.”
Entry 15 at 1-2.)
Plaintiff’s arguments fail.
The wording of the Appeals Council’s remand order contradicts
restricted to the impact of Plaintiff’s alcohol abuse on his mental
Under the authority of 20 C.F.R. 416.1477, the Appeals
Council vacates the hearing decision and remands this
case to an [ALJ] for further proceedings.
Upon remand, the [ALJ] will:
. . .
consideration to [Plaintiff’s] maximum
[RFC] and provide appropriate rationale
with specific references to evidence of
record in support of the assessed
(Tr. 216 (emphasis added) (internal citation omitted).)
despite the fact that the Appeals Council did “not raise any
issue with respect to [Plaintiff’s] ability to use his right hand”
in the order of remand, the Appeals Council’s order vacates ALJ
Hazel’s entire decision and directs the new ALJ to, among other
Berryhill, No. 1:16CV21, 2017 WL 722012, at *1, 6 n.5 (M.D.N.C.
Feb. 23, 2017) (unpublished) (Peake, M.J.) (holding that, where
Appeals Council vacated prior ALJ’s decision for, inter alia,
further consideration of the plaintiff’s maximum RFC, the ALJ did
limitation regarding five-minute breaks in RFC), recommendation
adopted, slip op. (M.D.N.C. Mar. 17, 2017) (Schroeder, J.).
In sum, ALJ Evans did not run afoul of Albright or AR 00-1(4)
by revisiting Plaintiff’s RFC at the post-remand hearing, or by
declining to adopt, on the basis of res judicata, ALJ Hazel’s
limitations regarding Plaintiff’s right upper extremity.
2. Right Upper Extremity Restrictions
Plaintiff further asserts that the ALJ failed to cite to
substantial evidence to support her RFC finding that Plaintiff
remained able to use his right hand to lift and carry at the light
level of exertion and to frequently push, pull, handle, and finger.
(See Docket Entry 11 at 5-12; see also Docket Entry 15 at 2-4; Tr.
Plaintiff has ultimately demonstrated entitlement to remand
for an award of benefits on this basis.
First, Plaintiff complains that the ALJ provided “a rote
recitation of some of the medical evidence in the case, much of
which militate[d] in [Plaintiff’s] favor (Dr. Burgess’[s] and
[physician assistant Barbara] Beck’s examinations (see Tr. 15-16)),
but at no point does she provide a logical bridge between this
evidence and her right hand RFC finding . . . .”
(Docket Entry 11
According to Plaintiff, “[i]n Monroe, the Fourth Circuit
stressed that an ALJ needs to provide an explicit explanation
linking medical evidence listed in the decision to her ultimate
findings[.]” (Id. at 6 (citing Monroe, 826 F.3d at 189-90).)
assertion misses the mark because, in the portion of the ALJ’s
decision cited by Plaintiff, the ALJ described evidence that
supported her finding that the residual symptoms from Plaintiff’s
right wrist injury constituted a severe impairment at step two of
the SEP (see Tr. 13-16) (and therefore, caused more than a minimal
effect on Plaintiff’s ability to perform work-related activities,
see Social Security Ruling 96-3p, Policy Interpretation Ruling
Titles II and XVI: Considering Allegations of Pain and Other
Symptoms in Determining Whether a Medically Determinable Impairment
is Severe, 1996 WL 374181, at *1 (July 2, 1996)), rather than her
finding that Plaintiff retained the RFC to use his right arm
frequently (see Tr. 19-25).
Next, Plaintiff faults the ALJ for citing to the finding of
Plaintiff’s gait, posture, and motor coordination exhibited no
“apparent defect or abnormality” (Docket Entry 11 at 6 (quoting Tr.
psychology, did not conduct a physical examination of Plaintiff,
and noted in his report that Plaintiff could not use his arm and
hand (id. at 6-7 (citing Tr. 1132-37)). The ALJ’s reference to Dr.
Warren’s “general observations” (Tr. 1132 (capitalization omitted))
with regard to Plaintiff’s gait, posture, and coordination does not
“apparent,” the ALJ signaled her acknowledgment that Dr. Warren did
not conduct physical testing of those attributes.
(See Tr. 21.)
Accordingly, the ALJ’s citation to Dr. Warren’s report does not
constitute error, but does lack significance in assessing whether
Plaintiff’s right arm.
examinations of Plaintiff “when he was following up for his left
ankle fracture where . . . only his left lower extremity muscle
groups and functioning were evaluated.”
(Docket Entry 11 at 7
(citing Tr. 21, 1286, 1300, 1333).)
As an initial matter, the ALJ
did not cite to transcript pages 1286, 1300, or 1333 (all contained
within Exhibit 10F) in the portion of her decision supporting the
(See Tr. 20-25.)
Furthermore, to the extent the ALJ did cite
fracture, the ALJ did not err, as (at the beginning of the
paragraph in question), the ALJ stated that “many medical records
extremity pain and upper extremity weakness.”
(Tr. 21 (emphasis
In other words, the ALJ properly could cite examinations
regarding Plaintiff’s left ankle to support the portion of the
Plaintiff’s reports regarding his left ankle.6
Plaintiff also criticizes the ALJ’s reliance on Plaintiff’s
activities of daily living to support the RFC, as “the record
demonstrates that [Plaintiff] did not use his right hand to perform
these activities, but his left, or he had someone help him.”
(Docket Entry 11 at 7 (citing Tr. 20-21, 94-96, 407-09, 415-16,
A review of the ALJ’s discussion of Plaintiff’s
daily activities demonstrates that the ALJ improperly glossed over
Plaintiff’s inability to perform such daily activities with his
To the extent Plaintiff argues that the records in question do not support the
ALJ’s findings regarding Plaintiff’s right arm, however, the undersigned
Magistrate Judge agrees.
right upper extremity.
(See Tr. 20-21.)
The ALJ reasoned as
Although [Plaintiff] alleges such debilitating physical
and mental symptoms that he is unable to work, his
reported activities of daily living do not support these
For example, during a consultative
examination of August 2012, [Plaintiff] reported that he
always bathes and dresses himself without assistance or
reminders except that his sister sometimes helps him to
wash his hair.
He further indicated that he always
manages his own finances without assistance; always
prepares his own meals; and always shops for food,
clothing, and other essentials. [Plaintiff’s] sister
indicated  in a third party function report that
[Plaintiff] prepares simple meals on a daily basis and
shops in stores every day.
During a consultative
physical examination of December 2013, [Plaintiff]
reported being able to fold laundry, use a vacuum, wash
a few dishes, cook, dust, make beds, do some light
cleaning, and manage his own dressing and hygiene.
During a consultative examination of March 2015,
[Plaintiff] stated that he was able to go to the grocery
store, [and] that he did very little housework due to
social habit rather than physical limitations.
indicated that he could sweep, fold laundry, use a vacuum
cleaner, cook light meals, dust, and do light cleaning.
He also indicated that he managed his own dressing and
hygiene. All of these activities of daily living reflect
[Plaintiff’s] ability to perform work-related activities
in some form or fashion. Although he may not be able to
perform them at the same level as he did prior to the
onset of his impairments, the undersigned finds that
[Plaintiff] is able to perform them in some limited
capacity and has reflected these limitations in the
(Id. (internal citations omitted).)
The ALJ’s above-quoted analysis lacks any qualification that
Plaintiff could not perform most of those activities using his
(Compare id., with Tr. 407-13 (reflecting Plaintiff’s
inability to use his right hand), 1132 (reporting Plaintiff’s
statements to consultative examiner Dr. Warren that his right hand
constituted the “main problem . . . that prevents [him] from being
able to work” and that he “can’t use” his right hand), 1396
(containing Plaintiff’s remark to consultative examiner Dr. Burgess
that his “right hand is not available to perform any sort of work
that requires strength or fine motor activity” (emphasis added)),
1397 (documenting Plaintiff’s assertion to Dr. Burgess that he “can
only use [his right] hand for brief period of support”), 1452
(recording Plaintiff’s contentions to Dr. Burgess that he can
“sweep by using [his] right hand as a fulcrum,” and that he can
vacuum and perform “a little dusting and . . . light cleaning with
ability to engage in daily activities with his right hand, borne
out by the record, cannot provide substantial evidence to support
Lastly, Plaintiff challenges the ALJ’s decision to afford Dr.
Burgess’s opinions “partial weight” on four grounds. (Docket Entry
11 at 10-11 (citing Tr. 24, and referencing Tr. 1396-1407, 145161).)
Burgess’s opinions has merit as well.
The ALJ provided the following analysis with respect to Dr.
In December 2013, consultative examiner Dr. Burgess
opined as follows: “[Plaintiff’s] ability to perform
work-related activities such as bending, stooping,
traveling, pushing and pulling heavy objects, as well as
the ability to hear or speak, appears to be mildly
impaired due to the sum of the physical findings
description of limitations appears consistent with the
objective findings.” The [ALJ] assigns partial weight to
these opinions as they are also based on a single
observation of [Plaintiff] and do not adequately reflect
[Plaintiff’s] symptoms as shown in the remaining medical
In March 2015, consultative examiner Dr. Burgess opined
as follows: “[Plaintiff’s] ability to perform workrelated activities such as bending, stooping, lifting,
walking, crawling, squatting, carrying, traveling,
pushing and pulling heavy objects, as well as the ability
to hear or speak, appears to be mildly impaired due to
the sum of the physical findings described above.
[Plaintiff’s] insight into and description of limitations
appears consistent with the objective findings.”
Burgess also indicated that [Plaintiff] can frequently
lift and carry up to 10 pounds; occasionally lift up to
50 pounds; occasionally carry up to 20 pounds; never
carry more than 20 pounds; never lift more than 50
pounds; . . . reach continuously with the right hand;
handle, finger, feel, push, and pull occasionally with
the right hand . . . . The undersigned assigns partial
weight to these opinions as Dr. Burgess is not a treating
source. His examination also included no objective range
of motion testing to substantiate his conclusions.
(Tr. 24 (emphasis added).)
First, Plaintiff faults the ALJ for failing to discuss the
objective motor loss, sensory loss, and hyperalgesia Dr. Burgess
found on examining Plaintiff’s right wrist and hand.
(citing Tr. 24); see also Tr. 1398, 1453-54).)
(Id. at 11
At the first
consultative examination, Dr. Burgess expressly found Plaintiff’s
right wrist tender, that Plaintiff could not make a fist with his
right hand (see Tr. 1398), and that Plaintiff’s grip strength rated
at two kilograms of force on the right as opposed to 20 to 30
kilograms on the left (see Tr. 1399).
Dr. Burgess essentially
replicated those findings at the second consultative examination
(which the ALJ had expressly ordered post-hearing (see Tr. 47374)). (See Tr. 1453-55.)
Although the ALJ discussed some of these
relevant findings in her step two discussion, she also erroneously
stated that Dr. Burgess found Plaintiff’s grip strength normal
(See Tr. 16.)
As Plaintiff points out, “the 5/5
strength notation was just typical unaltered boilerplate earlier on
in [Dr. Burgess’s] report (Tr. 1399[; see also Tr. 1454]) and that
section” reflects Plaintiff’s significant loss of grip strength on
the right (see Tr. 1399, 1455 (finding four kilograms of force on
the right and 50 to 52 kilograms on the left)).
(Docket Entry 15
Thus, the ALJ’s error regarding the results of Dr.
undermines the ALJ’s conclusion that Dr. Burgess’s opinions “do not
adequately reflect [Plaintiff’s] symptoms.”
Second, Plaintiff challenges the ALJ’s statement that Dr.
Burgess did not include any “objective range of motion testing to
substantiate his conclusions.”
(Docket Entry 11 at 11 (citing Tr.
extension and flexion, and in both, his [range of motion] was
(Id. (citing Tr. 1398, 1453.) In fact, Dr. Burgess also
found the range of motion in Plaintiff’s finger joints decreased in
(See Tr. 1398-99, 1454.)
objective range of motion testing by Dr. Burgess cannot support the
ALJ’s decision to discount Dr. Burgess’s opinions.
Third, Plaintiff argues that the ALJ’s “assignment of ‘partial
weight’ to Dr. Burgess’s opinions . . . tells us nothing about
which parts of [his] opinion the ALJ found to be supported and
which she did not.”
(Docket Entry 11 at 11 (citing Mascio v.
Colvin, 780 F.3d 632, 640 (4th Cir. 2015).)
Indeed, the ALJ’s
affording of “partial weight” to Dr. Burgess’s opinions remains
ambiguous under the facts of this case.
In the first
ability to lift and carry qualified as “mildly impaired” (Tr.
1400), but then limited Plaintiff to lifting and carrying at the
medium level of exertion only with his left hand, while using the
right hand for “brief actions” (Tr. 1401), a limitation which the
ALJ did not discuss (see Tr. 24).
Thus, the ALJ did not clarify
whether she gave partial weight to Dr. Burgess’s opinion because
(1) she felt that Plaintiff’s right hand impairment caused even
greater limitations than those found by Dr. Burgess, such that
Plaintiff could only lift and carry at the light level of exertion;
or (2) that Plaintiff’s hand injury resulted in fewer restrictions
than those opined by Dr. Burgess, because Plaintiff could lift and
carry using both hands.
Similarly, in the second consultative examination, Dr. Burgess
again found that Plaintiff’s ability to lift and carry qualified as
“mildly impaired” (Tr. 1455), but then limited Plaintiff to lifting
10 pounds frequently and 50 pounds occasionally (in between the
light and medium levels of exertion) and carrying at the light
“particular medical or clinical findings . . . which support your
assessment of any limitations and why the finding support the
(emphasis added).) Accordingly, the ALJ did not make clear whether
she gave partial weight to Dr. Burgess’s opinion because (1) she
felt that Plaintiff’s right hand impairment caused even greater
limitations than those found by Dr. Burgess, such that Plaintiff
could only lift at the light level of exertion; or (2) that
Plaintiff’s hand injury resulted in fewer restrictions than those
opined by Dr. Burgess, because Plaintiff could lift and carry using
This ambiguity renders the ALJ’s analysis of Dr.
Burgess’s opinions unsupported by substantial evidence.7
Fourth, the ALJ found that Dr. Burgess’s opinions “d[id] not
adequately reflect [Plaintiff’s] symptoms as shown in the remaining
“remaining medical evidence.”
As Plaintiff argues
(see Docket Entry 11 at 11), the ALJ failed to explain how Beck’s
evaluation did not support Dr. Burgess’s opinions.
found “[s]ignificantly decreased grip strength to [the] right hand,
[t]enderness over the carpal tunnel on [the] right[,] [p]ositive
Tinel’s sign over the carpal tunnel on [the] right[,] Phalen’s and
reverse Phalen’s sign positive on [the] right[,] [w]eakness mainly
to [the] median nerve distribution with diminished strength to
[the] radial and ulnar nerves as well [as] on [the] palmar aspect
of [the] right hand[,] [and] palmar aspect of [the] right hand
[with] diminished sensation.”
(Tr. 1468 (emphasis added).)
only did the ALJ fail to explain how those findings might conflict
with the findings and opinions of Dr. Burgess (see Tr. 24), but the
ALJ did not even discuss these significant findings in her decision
Although state agency consultant Ellen Huffman-Zechman found in November 2012
at the reconsideration level that Plaintiff remained able to lift at the medium
level of exertion with no manipulative limitations (see Tr. 195-96), the ALJ
assigned “partial weight” to that opinion as “without the benefit of viewing the
entire record as it was available at the time of the hearing [or] . . . the
benefit of hearing [Plaintiff’s] testimony or observing [Plaintiff] in person[,]
[and] [Plaintiff’s] testimony, coupled with the medical evidence of record,
indicates that his impairments pose more of a limitation to his ability to
perform work-related functions than originally determined” (Tr. 22-23 (emphasis
at all and erroneously indicated that Beck found Plaintiff’s
sensation “normal” and his strength “normal” except his “lower left
extremity” (Tr. 21).
Given the significant consistency between
Beck’s and Dr. Burgess’s findings, the ALJ’s incorrect recitation
of Beck’s examination findings cannot support her decision to
discount Dr. Burgess’s opinions.
Furthermore, the ALJ also did not specifically discuss or
support her apparent rejection of Dr. Burgess’s critical, outcome
handle, finger, feel, push, and pull with the right hand. (See Tr.
1458; see also Tr. 1403 (providing that Plaintiff could only
occasionally reach overhead, handle, finger, push, and pull and
could never feel with his right hand).)
At the hearing, the VE
testified that an individual limited to occasional contact with the
public and only occasional use of his right hand would not remain
able to engage in any competitive employment.
(See Tr. 114-15.)
Although the ALJ gave ALJ Hazel’s opinions from the prior decision
findings that Plaintiff could not lift with his right hand and
could only occasionally use his right hand for certain manipulative
movements (see Tr. 208).
Moreover, the ALJ discounted
ALJ Hazel’s opinions because “his decision suggest[ed] that he
relied heavily on a consultative examiner’s opinion that was based
on a single examination of [Plaintiff] and [Plaintiff’s] self-
However, as Plaintiff emphasizes,
Dr. Burgess’s opinions did not constitute “simply a parroting of
[Plaintiff’s] subjective statements[,] [but] w[ere] based on . . .
[grip] strength testing[,] . . . his inability to write or pick up
coins . . ., [or] form a fist with his right hand[,] as well as his
limited range of motion with the muscle groups and tendons of his
(Docket Entry 15 at 4 (citing Tr. 1398).)
In sum, the ALJ lacked substantial evidence to support her
findings that Plaintiff remained able to lift at the light level of
exertion using his right hand and to engage in frequent handling
and fingering with his right hand. “If the reviewing court decides
that the ALJ’s decision is not supported by substantial evidence,
it may affirm, modify or reverse the ALJ’s ruling ‘with or without
remanding the cause for a rehearing.’” Radford v. Colvin, 734 F.3d
288, 295 (4th Cir. 2013) (quoting 42 U.S.C. § 405(g)).
remand for further proceedings would serve no useful purpose, but
instead only would result in further, unnecessary delay, because
the record as a whole does not contain substantial evidence that
would warrant rejection of Dr. Burgess’s findings (which, paired
See Crider, 624 F.2d at 17 (finding
reversal for award of benefits warranted where, “[o]n the state of
the record, [the claimant’s] entitlement to benefits is wholly
established”); Smith v. Astrue, No. 3:10–66–HMHJRM, 2011 WL 846833,
at *3 (D.S.C. Mar. 7, 2011) (unpublished) (“Whether to reverse . .
. for an award of benefits or remand for a new hearing rests within
the sound discretion of the district court.”) (citing Edwards v.
Bowen, 672 F.Supp. 230, 237 (E.D.N.C. 1987)).
Plaintiff has established an error warranting a reversal for
an award of benefits.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be reversed, that Plaintiff’s Motion for
Judgment on the Pleadings (Docket Entry 10) be granted, that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)
be denied, and that the matter be remanded for an award of
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 8, 2017
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