Marshall v. Commissioner of Social Security Administration

Filing 27

Memorandum Opinion and Order that the decision of the Commissioner denying Marshall's applications for disability insurance benefits and social security income is reversed and remanded for further administrative proceedings. (Related Doc. 1 , 23 ). Signed by Magistrate Judge William H. Baughman, Jr., on 3/28/2018. (S,MD)

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

KATHARINA MARSHALL,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 3:16 CV 2620

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION & ORDER

Introduction
Before me1 is an action for judicial review of the final decision of the Commissioner
of Social Security denying the applications of the plaintiff, Katharina T. Marshall for
disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and

1

ECF # 23. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 8.

4

ECF # 9.

5

ECF # 5.

procedural6 orders the parties have briefed their positions.7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Marshall, who was 43 years old at the time of the administrative hearing,11 graduated

high school, is single, and lives with her three children, two of them being minors.12 Her past
relevant employment history includes employment as a photographer/photo studio manager,
fast food worker, and assembly worker.13
The Administrative Law Judge (“ALJ”), whose decision became the final decision of
the Commissioner, found that Marshall had severe impairments consisting of cervical
degenerative disc disease, bilateral carpel tunnel syndrome, fibromyalgia, depressive
disorder, anxiety disorder, obsessive-compulsive disorder, history of alcohol abuse, and

6

ECF # 10.

7

ECF # 14 (Marshall’s brief), ECF #21 (Commissioner’s brief).

8

ECF # 21-1 (Commissioner’s charts); ECF # 14-1 (Marshall’s charts).

9

ECF # 13.

10

ECF # 26.

11

ECF # 13 at 1.

12

ECF # 9, Transcript (“Tr.”) at 187.

13

Id. at 172.
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histrionic personality disorder.14 The ALJ made the following finding regarding Marshall’s
residual functional capacity:
The claimant has the residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant cannot
crawl or climb ladders, ropes, or scaffolds; but she can frequently stoop, kneel,
crouch, and climb ramps and stairs. The claimant is capable of frequent
handling, fingering, and reaching in all directions. She must not be exposed
to workplace hazards such as unprotected machinery or heights and cannot
perform commercial driving. The claimant is limited to work with no strict
production quotas or fast paced work, such as an assembly line. In addition,
the claimant is limited to simple, routine, and repetitive tasks that involve only
simple work-related decisions. Finally, the claimant can have only occasional
and superficial interaction with the general public and co-workers.15
Given that residual functional capacity, the ALJ found Marshall incapable of
performing her past relevant work as photographer/portrait studio manager, fast food worker,
and an assembly worker.16
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Marshall
could perform.17 The ALJ, therefore, found Marshall not under a disability.18

14

Id. at 159.

15

Id. at 163.

16

Id. at 172.

17

Id. at 173.

18

Id. at 174.
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B.

Issues on judicial review
Marshall asks for reversal of the Commissioner’s decision on the ground that it does

not have the support of substantial evidence in the administrative record. Specifically,
Marshall presents the following issues for judicial review:
•

Whether the ALJ’s residual functional capacity finding is supported by
substantial evidence.

•

Whether remand is warranted for the consideration of new and material
evidence.19

As more detailed fully below, I will find that the decision of the Commissioner should
be reversed, and the matter remanded under Sentence Six of 42 U.S.C. 405(g) for the
consideration of new and material evidence.

Analysis
A.

Standards of review

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.

19

ECF # 14 at 1.
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Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.20
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.21 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.22
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standards
This matter initially centers on whether there was substantial evidence to support the

RFC finding that Marshall could perform a reduced range of sedentary work. In particular,
Marshall challenges the RFC’s limitation as to gross and fine manipulation, which was
determined to be “frequent.” Marshall then raises a second issue involving a remand for new
and material evidence.

20

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

21

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
22

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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By way of background, Marshall notes that the record shows that she has been treated
for weakness in her hands, multiple tender points consistent with fibromyalgia, evidence of
radicular pain along the C6. C7 and C8 nerve distributions and tremors of the hands
bilaterally.23 She further notes that diagnostic studies have shown moderate to severe carpal
tunnel syndrome, advanced cervical degenerative changes with canal stenosis, and disc
collapse and stenosis at C4-5, C5-6 and C6-7.24 She also points out that she underwent
bilateral carpal tunnel releases and a cervical fusion after the state agency reviewers rendered
their opinions.25
In addition, Marshall asserts that her testimony at the hearing is that she is constantly
drowsy and fatigued, and that she has ongoing shaking/tremors in her hands that make it
difficult to grasp objects, a problem that is exacerbated by numbness in her hands and wrists
despite her carpal tunnel surgery.26
Taken together, she contends, as to the first question here, that the “outdated nonexamining source opinions,” together with the evidence cited above, meant that the ALJ
should have brought in a medical expert to provide an acceptable evidentiary foundation for
the RFC.

23

ECF # 14 at 20 (citing record).

24

Id. (citing record).

25

Id. (citing record).

26

Id. (citing record).
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As to the second issue of new evidence, Marshall contends that evidence produced
subsequent to the hearing before the ALJ but prior to the decision shows more significant
limitations from hand tremors greater those recognized in the RFC. Specifically, Marshall
points to visits in June and July 2015 with Dr. Adil Kataby, M.D., during which Marshall
was found to be experiencing cervical radicular pain bilaterally.27 Further, she notes that in
July 2015 Dr. Halina Pritula, M.D., found that Marshall’s tremors in her hands were now
worse due to anxiety, and that the tremors interfered with her ability to do daily activities.28
Dr. Pritula diagnosed Marshall with “essential tremor” and prescribed Topomax for headache
preventive management, as well as treating her tremors.29
In addition, Marshall also raises new evidence from December 2015 - or after the date
of the decision - where Patricia Young, a physical therapist, notes that Marshall was
experiencing “constant” tremors and weakness, and displayed “very weak” postural muscles
on both wrists during an examination.30
It is noted initially that although the parties have expended significant resources
debating the question of whether the ALJ found sufficient evidentiary support in the record
he reviewed for the RFC, I find that I do not need to address that question. In short, even if

27

Tr. at 1163, 1167.

28

Id. at 1268-75.

29

Id.

30

Id. at 103-103.
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the ALJ could be found to have properly formulated the RFC based on the evidence before
him, the new and material evidence cited by Marshall requires that the matter be remanded.
In that regard, the ALJ made a point of stating that Marshall had only been observed
twice with tremors, and further stated in the opinion that on both occasions the tremors had
been noted as “slight.”31 Moreover, in addition to specifically questioning the frequency of
the tremors and their severity, the ALJ then essentially questioned whether any tremors were
caused by Marshall being non-compliant with her pain medications.32
Whatever support these particular notations by the ALJ gave to his conclusion
regarding the RFC’s limitation on gross and fine manipulation, these findings are directly
impacted by the new evidence from Dr. Kataby and Dr. Pritula. Dr. Kataby, for instance, had
been treating Marshall for pain and loss of feeling in her arms and hands since 2012 with
multiple therapies including steroid injections, lumbar radiofrequency procedures and
cervical medial branch blocks; all treatments not easily susceptible to abuse or noncompliance by a patient and all with only limited success.33 Moreover, Dr. Pritula, who had
been treating Marshall since 2013, was explicit in noting hand tremors during the
examination, and in concluding that the tremors were “essential.”

31

Tr. at 170.

32

Id.

33

See, id. at 574, 575, 576, 802, 803-07, 843-45, 846-48, 849-51, 902-06, 907-11,,
912-15, 1010-13, 1014-16, 1017-19.
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Thus, this evidence is both new and material, in that there is more than a reasonable
probability that no ALJ would conclude that Marshall’s tremors were infrequent or slight and so not a basis for any more significant functional limitation - if there is a recent
treatment note from a physician directly contradicting both points. The recent nature of such
a finding by a physician is highlighted here by the fact - clearly apparent in the record - that
apart from this new evidence, the only medical opinions here are over two years old.
It is noted again that sending the matter back for consideration of this new evidence
does not involve any decision by me as to whether the ALJ properly formulated an RFC here
without additional opinion evidence. As the foregoing discussion makes clear, even if it was
proper of him to fashion the RFC on the record as it then existed, several fundamental points
supporting that RFC - and in particular the findings made in the opinion concerning the
frequency and severity of the tremors - are now highly suspect in light of the new evidence.

Conclusion
Accordingly, and for the reasons stated, the decision of the Commissioner denying
benefits to Katharina Marshall is hereby reversed. The matter is remanded for further
proceedings consistent with this opinion under Sentence Six of 42 U.S.C. § 405(g).

Dated: March 28, 2018

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

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