SUGGS v. BERRYHILL
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/2/2018; that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings 1) as to why, for purposes of establishing an RFC, restricting Plaintiff to SRRTs adequately accounts for his moderate limitation in CPP (or, alternativel y, whether additional restrictions should apply and/or whether jobs that can accommodate any such additional restrictions exist in substantial numbers); and 2) reevaluation of the opinion of Dr. Leversedge in accordance with 20 C.F.R. § 404.1527 . As a result, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) should be granted in part (i.e., to the extent it requests remand), and Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) should be denied. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
COREY SUGGS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:17CV1105
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Corey Suggs, 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
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 7 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 9, 12; see also Docket Entry 10 (Plaintiff’s Brief); Docket
Entry 13 (Defendant’s Memorandum)).
For the reasons that follow,
the Court should remand this matter for further administrative
proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
August 14, 2013.
(Tr. 173-76.)
Upon denial of that application
initially (Tr. 75-82, 92-95) and on reconsideration (Tr. 83-91,
104-11),
Plaintiff
Administrative
Law
requested
Judge
a
hearing
(“ALJ”)
(Tr.
de
novo
112).
before
Plaintiff,
an
his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 43-74.)
The ALJ subsequently determined that Plaintiff did
not qualify as disabled under the Act.
(Tr. 19-38.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
18,
170-72,
240-41),
thereby
making
the
ALJ’s
ruling
the
Commissioner’s final decision for purposes of judicial review.
In
rendering
that
decision,
the
ALJ
made
the
following
findings:
1.
[Plaintiff] last met the insured status requirements
of the . . . Act on September 30, 2013.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
August 14, 2013 through his date last insured of
September 30, 2013.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: status post left upper
extremity fracture, with left radial and ulnar nerve
injuries; complex regional pain syndrome; and depression.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform less than
the full range of light work . . . . He could lift and
2
carry 10 pounds occasionally with the left upper dominant
extremity; lift and carry 20 pounds occasionally with the
right upper extremity and frequently lift and carry 10
pounds frequently with the right upper extremity; stand
and/or walk six hours in an eight-hour workday; sit six
hours in an eight-hour workday; occasionally push and
pull up with the left dominant upper extremity; and never
climb ladders, ropes, and scaffolds. He can occasionally
handle and finger with the left dominant upper extremity
and occasionally reach in all directions with the left
dominant upper extremity. He should avoid concentrated
exposure to extreme cold, moving machinery, hazardous
machinery, and unprotected heights.
He can perform
simple, routine, repetitive tasks.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.
was
. . .
10. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from August 14, 2013, the
alleged onset date, through September 30, 2013, the date
last insured.
(Tr. 24-37 (internal parenthetical citations omitted).)
II.
DISCUSSION
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).
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
3
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given
those limitations, the Court should remand this case for further
administrative proceedings.
A.
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).
reviewing
court must
uphold
the
factual
findings
Instead, “a
of
the
ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial 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, 390 (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) (internal brackets and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
4
adopted by the Social Security 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
disabled,
the
responsibility
for
that
decision falls on the [Social Security 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
engage in
any
substantial
gainful
activity
by
reason
of
any
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.
(quoting
42
U.S.C.
§
423(d)(1)(A)).1
“To
regularize
the
1
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . 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, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).
5
adjudicative process, the Social Security Administration has . . .
promulgated . . . detailed regulations incorporating longstanding
medical-vocational evaluation policies that take into account a
claimant’s age, education, and work experience in addition to [the
claimant’s] medical condition.”
Id.
“These regulations establish
a ‘sequential evaluation process’ to determine whether a claimant
is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“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 Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
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).
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
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
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
(‘RFC’).”
Id. at 179.3
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.
179-80.
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 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 government cannot carry its “evidentiary burden of
proving that
[the
claimant]
remains
3
able
to
work
other
jobs
“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 workrelated 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.
7
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to account for [Plaintiff’s]
moderate
limitation
in
concentration,
persistence,
[or]
pace
[(‘CPP’)] in the RFC and hypothetical question” (Docket Entry 10 at
6 (italics omitted)); and
2)
“[t]he
physician’s
ALJ
opinion
erred
by
failing
controlling
to
weight”
give
(id.
the
at
7
treating
(italics
omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 3-12.)
1. CPP
In Plaintiff’s first issue on review, he claims that “[t]he
ALJ
erred
by
failing
to
account
for
[Plaintiff’s]
moderate
limitation in [CPP] in the RFC and hypothetical question.” (Docket
Entry 10
at
6 (italics
omitted).)
4
In
particular,
Plaintiff
A claimant thus can qualify as disabled 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 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.”).
8
contends that “[i]n Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015),
the [United States Court of Appeals for the] Fourth Circuit held
that an ALJ does not account ‘for a claimant’s limitations in [CPP]
by restricting the hypothetical question to simple, routine tasks
or unskilled work.’”
F.3d at 638).)
(Docket Entry 10 at 6 (quoting Mascio, 780
According to Plaintiff, the restriction in the RFC
and dispositive hypothetical question to simple, routine, and
repetitive tasks (“SRRTs”) “do[es] not account for [Plaintiff’s]
moderate
limitations
in
[CPP].”
(Id.
at
7.)
Plaintiff’s
contentions warrant relief.
The Fourth Circuit has held that “the ability to perform
simple tasks differs from the ability to stay on task” and that
“[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”
Mascio, 780 F.3d at 638.
However, as a
neighboring district court has explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by
district judge) (unpublished) (emphasis added); see also Hutton v.
9
Colvin, No. 2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,
2015)
(unpublished)
(finding
reliance
on
Mascio
“misplaced,”
because ALJ “gave abundant explanation” for why unskilled work
adequately accounted for claimant’s moderate limitation in CPP, by
highlighting
the
claimant’s
physicians’ opinions).
daily
activities
and
treating
Here, however, the ALJ’s decision provides
no explanation as to why a restriction to SRRTs (see Tr. 27)
sufficiently accounted for Plaintiff’s moderate deficit in CPP (see
Tr. 26).
As an initial matter, the ALJ’s decision does not clarify
whether the ALJ found that Plaintiff’s depression, traumatic brain
injury (“TBI”), or pain caused him to suffer moderate limitation in
his ability to maintain CPP.
The ALJ first found that Plaintiff’s
TBI constituted a non-severe impairment which caused Plaintiff to
suffer only mild deficit in CPP at step two of the SEP.
24-25.)
(See Tr.
However, at step three, as support for the ALJ’s finding
that Plaintiff’s depression caused moderate limitation in CPP, the
ALJ relied, in part, on Plaintiff’s hearing testimony that his TBI
caused him to suffer limitations in “his short-term memory, longterm concentration, and focus.”
(Tr. 26; see also Tr. 53.)
Still
later, the ALJ cited a treatment note reporting that Plaintiff’s
“concentration was related to his pain level.”
added); see also Tr. 401.)
(Tr. 32 (emphasis
The ALJ’s shifting attribution for the
10
cause of Plaintiff’s concentration difficulties impedes the Court’s
ability to engage in meaningful judicial review.
Nor does the ALJ’s assessment and weighing of the opinion
evidence
explain
dispositive
why
a
restriction
hypothetical
to
question
Plaintiff’s moderate limitation in CPP.
SRRTs
in
adequately
the
RFC
and
encompassed
Although the ALJ accorded
“significant weight” to the opinions of the state agency medical
consultants (Tr. 35), those consultants did not find that Plaintiff
suffered
from
any
mental
impairments
(see
Tr.
77,
86)
and,
therefore, neither assessed Plaintiff’s ability to maintain CPP,
nor determined a mental RFC (see Tr. 77-79, 86-88).
Furthermore,
although the ALJ afforded “partial weight” to the opinion of
Plaintiff’s treating neurosurgeon, Dr. Fraser J. Leversedge (Tr.
35), the ALJ specifically discredited only Dr. Leversedge’s opinion
that Plaintiff could “never use the left hand to handle and finger
and could only lift five pounds,” implying that the ALJ credited
Dr. Leversedge’s opinion that Plaintiff “often had pain severe
enough to interfere with attention and concentration” (id.; see
also Tr. 331).
The ALJ’s discussion of Plaintiff’s daily activities also did
not provide the needed explanation under Mascio.
Although the ALJ
noted that Plaintiff could “drive[] 100 miles per week” and “pay[]
bills on the computer,” activities that arguably require a degree
of CPP to complete, the ALJ did not link Plaintiff’s engagement in
11
such activities to an ability to perform SRRTs.
(See Tr. 34.)
Indeed, after including SRRTs in the RFC (see Tr. 27), the ALJ’s
decision does not mention SRRTs again (see Tr. 27-38).
As a result, without further explanation, the ALJ’s decision
does not provide “an accurate and logical bridge,” Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000), between the ALJ’s
conclusion that Plaintiff suffered moderate CPP and the ALJ’s
decision
that
Plaintiff
could
perform
SRRTs.
Under
these
circumstances, the Court should remand for further administrative
proceedings consistent with Mascio.
2. Treating Physician’s Opinion
In Plaintiff’s second and final assignment of error, he
alleges that “[t]he ALJ erred by failing to give the treating
physician’s opinion controlling weight.”
(italics omitted).)
(Docket Entry 10 at 7
More specifically, Plaintiff contends that
“the ALJ did not provide ‘persuasive contradictory evidence’ to
overcome” the opinion of Dr. Fraser J. Leversedge, Plaintiff’s
treating neurosurgeon (id. at 11 (quoting Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987)), who limited Plaintiff to less than
sedentary work (id. at 7 (citing Tr. 329-35)). Moreover, according
to Plaintiff, “the evidence provided by the [s]tate agency nonexamin[ing
consultants]
cannot
serve
as
substantial
evidence
supporting denial of benefits because the medical testimony of
12
examining and treating physicians does not go both ways.”
(Id. at
11-12 (citing Long v. United States Dep’t of Health & Human Servs.,
1990 WL 64793, at *3 (4th Cir. 1990) (emphasis in original)).)
As an initial matter, Plaintiff misrelies on the “persuasive
contradictory evidence” standard.
That phrasing of the “treating
physician rule” no longer represents the governing standard.
See
Stroup v. Apfel, No. 96-1722, 205 F.3d 1334 (table), 2000 WL
216620, at *5 (4th Cir. Feb. 24, 2000) (unpublished) (“The 1991
regulations supersede the ‘treating physician rule’ from our prior
case law.”);
Shrewsbury
v.
Chater,
No.
94-2235, 68
(table), 1995 WL 592236, at *2 n.5 (4th
F.3d 461
Cir. Oct. 6, 1995)
(unpublished) (“As regulations supersede contrary precedent, the
cases cited by [the plaintiff] defining the scope of the ‘treating
physician rule’ decided prior to 20 C.F.R. § 416 and related
regulations are not controlling.” (internal citation omitted));
accord Brown v. Astrue, Civil Action No. CBD-10-1238, 2013 WL
937549, at *4 (D. Md. Mar. 8, 2013) (unpublished); Benton v.
Astrue, Civil Action No. 0:09-892-HFF-PJG, 2010 WL 3419272, at *1
(D.S.C. Aug. 30, 2010) (unpublished); Pittman v. Massanari, 141 F.
Supp. 2d 601, 608 (W.D.N.C. 2001); Ward v. Chater, 924 F. Supp. 53,
55-56 (W.D. Va. 1996).
Under the proper standard, the treating source rule does
generally require an ALJ to give controlling weight to the opinion
of a treating source regarding the nature and severity of a
13
claimant’s impairment. See 20 C.F.R. § 404.1527(c)(2) (“[T]reating
sources . . . provide a detailed, longitudinal picture of [a
claimant’s]
medical
impairment(s)
and
may
bring
a
unique
perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
examinations,
such
as
hospitalizations.”).
consultative
examinations
or
brief
The rule also recognizes, however, that not
all treating sources or treating source opinions merit the same
deference.
The nature and extent of each treatment relationship
appreciably tempers the weight an ALJ affords an opinion.
C.F.R. § 404.1527(c)(2)(ii).
See 20
Moreover, as subsections (2) through
(4) of the rule describe in great detail, a treating source’s
opinion, like all medical opinions, deserves deference only if
well-supported
by
medical
signs
and
laboratory
findings
and
consistent with the other substantial evidence in the case record.
See 20 C.F.R. § 404.1527(c)(2)-(4). “[I]f a physician’s opinion is
not supported by clinical evidence or if it is inconsistent with
other substantial evidence, it should be accorded significantly
less weight.”
Craig, 76 F.3d at 590 (emphasis added).
On September 7, 2016, Dr. Leversedge completed a “Medical
Source Statement About What the Claimant Can Still Do Despite
Impairment(s)” (“MSS”) (Tr. 329-35), diagnosing Plaintiff with
status post left humerus fracture, left radial and ulnar nerve
injuries, and complex regional pain syndrome (“CRPS”), which caused
14
Plaintiff to suffer pain, reduced range of motion, reduced grip
strength, and sensory changes in the left hand, as well as muscle
weakness and atrophy in the left upper extremity (see Tr. 329). As
a result of those impairments, Dr. Leversedge concluded that,
although Plaintiff had no restrictions in lifting and carrying with
his right, non-dominant upper extremity, he could lift and carry
only one to five pounds occasionally with the left upper extremity.
(See Tr. 332.)
Dr. Leversedge further opined that Plaintiff could
never reach in any direction, handle, or finger with his left upper
extremity (see Tr. 332, 334), and that his impairment would cause
his absence from work more than three times per month (see Tr.
335).
The ALJ discussed Dr. Leversedge’s opinion, and then weighed
it as follows:
The [ALJ] gives partial weight to this opinion. That
[Plaintiff] can never use the left hand to handle and
finger and could only lift five pounds is not fully
supported by the medical evidence of record, in light of
[Plaintiff’s] activities of daily living and earlier
clinical and electromyography findings [(Tr. 347, 426,
431, 463)], which show he is clearly doing better. He
was occasionally helping a friend at a customer service
desk [(Tr. 337)], was running the household with the
children [(Tr. 541)], and running up to two miles per day
[(Tr. 456)].
He said his pain was reasonably well
controlled [(Tr. 350-51)].
(Tr. 35.)
The ALJ’s finding that Dr. Leversedge’s opinion did not
harmonize
with
Plaintiff’s
daily
15
activities
and
“the
medical
evidence
of
record”
(id.)
lacks
the
support
of
substantial
evidence.
The ALJ improperly relied on Plaintiff’s daily activities to
discount Dr. Leversedge’s significant restrictions on Plaintiff’s
use of his left arm, because none of the activities cited by the
ALJ demonstrated that Plaintiff enjoyed more functional use of his
left arm than prescribed by Dr. Leversedge.
Although the ALJ
relied on Plaintiff’s statement to a treatment provider on November
20, 2015, that “[h]e was occasionally helping a friend at a
customer service desk” (id.; see also Tr. 337), the statement
occurred over two years after Plaintiff’s date last insured, and
neither indicated how often Plaintiff assisted his friend nor
elaborated
any
further
regarding
what
types
of
activities
Plaintiff’s assistance to his friend entailed, let alone whether
(and to what extent) such activities involved the use of his left
arm (see Tr. 337).
Similarly, the ALJ’s reliance on Plaintiff’s
ability to “run[] the household” and take care of his children (see
Tr. 35) misses the mark, because Plaintiff consistently stated that
he wore a brace on his left arm all the time, and did not use his
left arm to pick up or handle objects or to perform household
chores (see Tr. 51, 57-58, 63).
In the same vein, the ALJ fails to
explain how Plaintiff’s ability to run one to two miles per day,
which Plaintiff testified he does while wearing a brace on his left
16
arm (see Tr. 65), demonstrated that Plaintiff could use his left
arm to a greater degree than that opined by Dr. Leversedge.
The ALJ’s reliance on the “medical evidence of record” and/or
“earlier clinical and electromyography findings” to discount Dr.
Leversedge’s opinion fares no better.
426, 431, 463).)
cited
by
the
(Tr. 35 (citing Tr. 347,
The four pages of the administrative transcript
ALJ
do
not
reflect
“earlier
clinical
and
electromyography findings” that contradict Dr. Leversedge’s opinion
regarding Plaintiff’s left arm functionality.
431, 463.)
(See Tr. 347, 426,
Those pages contain the following findings:
C
A cover page for an office visit to Dr. Leversedge
on October 27, 2015, which does not contain any
medical findings at all (see Tr. 347);
C
A September 25, 2014, treatment note from Dr.
Leversedge
reflecting
decreased
strength
in
Plaintiff’s left triceps, biceps, flexor carpi
radialis,
flexor
digitorum
profundus,
and
lumbricals, no firing of the intrinsic muscles in
Plaintiff’s left hand, no sensation in the
superficial
branch
of
the
radial
nerve
distribution, dysesthesias in the ulnar nerve
distribution, and significantly decreased range of
motion in Plaintiff’s left wrist (see Tr. 426);
C
A Duke pain clinic visit on September 24, 2014,
which records visible atrophic skin changes and
diminished hair growth on Plaintiff’s posterior
left hand, absent extension of the wrist and digits
and decreased grip strength of Plaintiff’s left
hand, and severely diminished sensation to light
touch and pin prick in Plaintiff’s left forearm,
hand,
and
fingers,
as
well
as
abnormal
electromyography results showing evidence of left
ulnar, radial, musculocutaneous, and anterior
interosseous nerve axonal loss (see Tr. 431); and
17
C
A treatment note dated July 28, 2016, from the Duke
pain clinic indicating a normal mental status
evaluation, Plaintiff’s assessment of his arm pain
as a six on a scale of one to ten, and the
clinician’s notation that Plaintiff’s left upper
extremity remained in a splint and displayed
“reduced strength grossly” (Tr. 463).
The above-described findings do not undermine (and in fact appear
to support) Dr. Leversedge’s opinion regarding Plaintiff’s limited
ability to use his left arm.
In sum, as substantial evidence does not support the ALJ’s
decision to discount Dr. Leversedge’s opinion as it related to
Plaintiff’s left arm functionality, Plaintiff has demonstrated an
entitlement to remand on this issue as well.
CONCLUSION
Plaintiff has established errors warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under
sentence
administrative
four
of
proceedings
42
1)
U.S.C.
as
to
§
405(g),
why,
for
for
further
purposes
of
establishing an RFC, restricting Plaintiff to SRRTs adequately
accounts for his moderate limitation in CPP (or, alternatively,
whether additional restrictions should apply and/or whether jobs
that can accommodate any such additional restrictions exist in
substantial numbers); and 2) reevaluation of the opinion of Dr.
Leversedge in accordance with 20 C.F.R. § 404.1527.
18
As a result,
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 9)
should be granted in part (i.e., to the extent it requests remand),
and Defendant’s Motion for Judgment on the Pleadings (Docket Entry
12) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 2, 2018
19
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