Erb v. Commissioner of Social Security Administration

Filing 21

Memorandum Opinion and Order that the Commissioner's no disability finding lacks substantial evidence. Signed by Magistrate Judge William H. Baughman, Jr on 3/13/19. (D,Ky)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARRIE ERB,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

Defendant.

CASE NO. 1:18 CV 0136
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION &
ORDER

Introduction
In this disability insurance benefits case1 before me, 2 Carrie Erb challenges the
findings that she has the residual functional capacity (“RFC”) for sedentary work and that
she can perform her past relevant work as a wholesaler. She submits that these findings
are not supported by substantial evidence.

Analysis
This case presents the following issue:


1
2

Both the treating source and the consulting examiner/medical expert source
opined occasional limitations on the use of upper extremities based on the
objective medical evidence. The Administrative Law Judge (“ALJ”) gave
these sources no more than some weight and did not include any limitations on
the use of the upper extremities in the RFC without articulation for that
exclusion. Does substantial evidence support the weight assigned to these
sources and the RFC?

ECF No. 1.
ECF No. 12. The parties have consented to my exercise of jurisdiction.

This is essentially a challenge to the ALJ’s weight assignment to the opinions of
Erb’s treating source and a consulting examiner.

These sources opined that Erb had

limitations in the use of her upper extremities. The ALJ incorporated no such limitations
into the RFC finding or the hypothetical posed to the vocational expert (“VE”).
The Commissioner justifies the weight assigned to the treating and examining
sources based upon the medical records as a whole and Erb’s testimony at the hearing
regarding her daily activities.

The limitations opined by the treating source are very

restrictive, and under the substantial evidence standard may not be totally consistent with
the medical evidence in the treatment notes and the results of medical testing performed.
But as to the use of the upper extremities, abundant evidence supports some restrictions on
such use in the RFC.
As counsel for the Commissioner conceded, the RFC adopted incorporates no
limitations on the use of the upper extremities and, therefore, provides for full use thereof.
Additionally, the RFC provides for occasional climbing of ropes and scaffolds.3 Clearly,
such climbing exceeds Erb’s functional capacity.
The treating source opined that Erb can rarely reach, push, pull, or do fine or gross
manipulation.4 He gave a narrative attributing the reach, push, and pull limitations to her
use of abdominal muscles, which is painful after surgery. He linked the manipulation
limitations to joint deformities in her hands. After physical examination and review of

3
4

ECF No. 9, Transcript (“Tr.”) at 20.
Id. at 1074.
2

the treatment notes of Erb’s treating source,5 the consulting examining physician opined
that Erb would be limited to occasional gripping and grasping and occasional handling.6.
The consulting examining physician supported these limitations with explicit examination
findings. Although she opined that Erb could do sedentary work, she stipulated that Erb
needed work that would accommodate those functional limitations.7
The ALJ’s unified statements giving reasons for the weight assigned to these
sources acknowledges these limitations but gives no reason for disregarding them. 8
Further, nothing in the ALJ’s articulation outside the unified statement supports the
sources’ limitations on the use of the upper extremities.
As observed at the oral argument, the examination and testimony of the VE is
difficult to follow because of the extensive use of incomplete sentences in the questions
and answers, answers given before questions were completed, and questions presented
before answers were completed. Nevertheless, I find no examination on the effect of
limitations on the use of the upper extremities upon Erb’s capability for past relevant work.9

5

In effect, the consulting examining physician served as both a consulting examiner and a
medical expert because she not only did a one-time examination of Erb but also reviewed
the notes of Erb’s treating physician before giving a detailed RFC opinion that included
limitations on the use of the upper extremities to occasional. Although this is rarely done,
this type of source probably warrants slightly less deference that that of a treating source
but more deference than that of a mere consulting examiner. To put it another way, this
review is longitudinal.
6
Id. at 1126.
7
Id. at 1127.
8
Id. at 24-25.
9
“Any significant manipulative limitation of an individual's ability to handle and work
with small objects with both hands will result in a significant erosion of the unskilled
3

Conclusion
The Commissioner’s no disability finding lacks substantial evidence. On remand,
the ALJ must consider whether, based on the medical evidence, Erb can do any of her past
relevant work. I decline to reach the issue of whether the ALJ’s opinion went to a
composite job or to a distinct, single job.
IT IS SO ORDERED.
Dated: March 13, 2019

s/ William H. Baughman, Jr.
United States Magistrate Judge

sedentary occupational base. . . .When the limitation is less significant, especially if the
limitation is in the non-dominant hand, it may be useful to consult a vocational resource.”
Social Security Administration, Social Security Ruling (“SSR”) 96-9p, Titles II and XVI:
Determining Capability to do Other Work – Implications of a Residual Functional Capacity
for Less Than a Full Range of Sedentary Work, 1996 WL 374185, at *8 (July 2, 1996)
(emphasis in original).
4