Hively v Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained and that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 3/18/2016. Signed by Magistrate Judge Terence P. Kemp on 3/1/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sherry Lynn Hively,

:

Plaintiff,

: Case No.

v.

2:15-cv-1138

: CHIEF JUDGE EDMUND A. SARGUS, JR.

Carolyn W. Colvin, Acting
: Magistrate Judge Kemp
Commissioner of Social Security,
Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Sherry Lynn Hively, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

October 26, 2011, and alleged that Plaintiff became disabled on
December 26, 2010.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on September 26, 2013.

In a decision dated October 31,

2013, the ALJ denied benefits.

That became the Commissioner’s

final decision on February 3, 2015, when the Appeals Council
denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 22, 2015.

Plaintiff filed her

statement of specific errors on September 4, 2015, to which the
Commissioner responded on November 9, 2015.

Plaintiff filed a

reply brief on November 23, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 34 years old at the time of the
administrative hearing and who discontinued her schooling before

graduating, testified as follows.

Her testimony appears at pages

51-59 of the administrative record.
Plaintiff’s last job was in the laundry department of a rest
home.

She did that for almost four years, but was terminated for

missing work.

She also said that she was on an insulin pump for

diabetes and took several other medications.
As far as household chores and daily activities, Plaintiff
testified that she did some of the housework and some of the
cooking.

She could drive and go grocery shopping.

She had not

been looking for work, and went to as many as five doctors’
appointments each month, including blood work.
Plaintiff wore a special shoe which was prescribed by her
doctor.
time.

They were orthopedic shoes, and she wore them all the

She also testified that she got Bs and Cs in school and

never obtained her GED.
III.

The Medical Records

The medical records in this case are found beginning on page
287 of the administrative record.

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
to the extent that they are pertinent to Plaintiff’s statement of
errors.
Plaintiff reported bilateral hand pain to Dr. Nau, her
primary care physician, in August and September, 2011.

She

described numbness as well and said it had been present for
several months.
things.

Splints had not helped.

She was dropping

Her wrists were normal to inspection and palpation and

her strength was 5/5 bilaterally.

Two tests (Phalen’s test and

Tinel’s sign) were positive bilaterally, however.

Dr. Nau

diagnosed carpal tunnel syndrome - a diagnosis also based on EMG
results - and by September 14, 2011, had recommended surgery.
(Tr. 416-18).
A note from Dr. Nau dated April 16, 2012, shows that
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Plaintiff was reporting right wrist pain, with a gradual onset
spanning two weeks.
usage.

It was getting worse, and was painful with

A Finkelstein’s test (used to diagnose De Quervain’s

tenosynovitis, and which involves some manipulation of the thumb,
fingers, and wrist) was positive.

(Tr. 386-87).

A surgical

referral was made, but Plaintiff did not follow up at that time
because the condition improved.

(Tr. 405).

The surgery on Plaintiff’s left wrist occurred on May 18,
2012, and was performed by Dr. Holt.

At a follow-up visit, Dr.

Holt noted that Plaintiff still had occasional tingling but good
range of motion.
done.

She wanted to wait to have the right wrist

(Tr. 497).

Plaintiff was still having some shooting pains

as well as occasional tingling and numbness in the morning.
also reported decreased strength.

She

There was some thickening of

the incision, and Dr. Holt concluded that she was still healing.
(Tr. 496).

During this time, Plaintiff underwent a functional

capacity evaluation
testing.

in July, 2012, which involved two days of

Plaintiff’s diagnoses at that time were diabetes and

left hand surgery.

She gave maximal effort on the test and had

no discomfort lifting heavy weights.
hand grip, however.

She demonstrated weak left

(Tr. 427-28).

Plaintiff had her right wrist operated on in April, 2013.
Dr. Brautigan did that surgery.

It went without complications,

but Dr. Brautigan noted that her transverse carpal ligament was
very thick.

(Tr. 489).

improved significantly.

At the first recheck, her numbness had
That continued to be the case, but four

months post-surgery she was still reporting pain over the
incision site.

(Tr. 486).

Shortly prior to that visit, Dr.

Brautigan wrote a short note indicating that Plaintiff was “quite
disabled” by her bilateral carpal tunnel syndrome and that
“[r]epetitive hand motions or heavy manipulation with her hands
is something that she cannot sustain.”
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He thought she was

restricted to lifting five to eight pounds on a repetitive basis.
(Tr. 495).
Two state agency physicians reviewed the records.

Dr. Bolz,

in a document dated January 8, 2012, which predated both
surgeries, concluded that Plaintiff was limited to light work
with a limited ability to do gross manipulation with both hands
and with a limited ability to push or pull with both upper
extremities.

(Tr. 64-67).

Dr. Manos reached a similar

conclusion on May 9, 2012, noting that she was limited to
frequent handling due to numbness.

(Tr. 84-87).

Finally, Plaintiff did submit some additional medical
records after the ALJ’s decision was rendered.

They showed

another wrist surgery by Dr. Brautigan on December 3, 2013,
preceded by a note from Dr. Brautigan dated November 18, 2013, in
which he noted that Plaintiff had a recurrence of her De
Quervain’s tenosynovitis, causing severe pain, and for which he
recommended the surgery.

(Tr. 516-21).

Dr. Brautigan also

completed a residual functional capacity report on February 24,
2104, containing a number of work-preclusive restrictions, which
he attributed both to diabetes with diabetic neuropathy and the
problems with her wrists.

(Tr. 11-15).

At that time, she was

reporting pain in both wrists, but had returned to factory work
for financial reasons.

(Tr. 16).

Later tests showed a

recurrence of carpal tunnel syndrome.
IV.

(Tr. 21).

The Vocational Testimony

Nancy Shapiro, a vocational expert, testified at the
administrative hearing.

Her testimony begins at page 59 of the

administrative record.
Ms. Shapiro began by testifying about Plaintiff’s past
relevant work.

She said that her work in the home health area

was medium ans semiskilled, and that Plaintiff also had
experience in the secretarial area (a sedentary job) and as a
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laundry worker, which was medium.
Ms. Shapiro was then asked to answer some questions about a
hypothetical person who could not do repetitive hand motion and
could lift no more than five to eight pounds on a repetitive
basis.

According to Ms. Shapiro, no jobs would be available for

such a person.

She explained that at the sedentary level,

repetitive use of the hands is always required, even for a job
like surveillance system monitor, which required repetitive hand
movement at times.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 3038 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through September 30, 2013.

Next, he found that she had not

engaged in substantial gainful activity since her onset date of
December 26, 2010.

Going to the second step of the sequential

evaluation process, the ALJ determined that Plaintiff had severe
impairments including bilateral carpal tunnel syndrome, diabetes
mellitus, and plantar fasciitis.

The ALJ also found that these

impairments did not, at any time, meet or equal the requirements
of any section of the Listing of Impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform medium work as defined in 20 C.F.R. §§404.1567(c) and
416.967(c).

That ability was consistent with the demands of one

of Plaintiff’s past jobs, that of secretary.

Consequently, the

ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises these

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issues.

She asserts (1) that the ALJ violated the treating

source rule in his evaluation of Dr. Brautigan’s opinions, and
(2) that a sentence six remand is necessary because the Appeals
Council erred in its consideration of new and material evidence.
The first issue is considered under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Dr. Brautigan’s Opinions

As it does in many cases where the sufficiency of the ALJ’s
reasoning in rejecting the opinion of a treating physician is at

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issue, the Court begins its analysis with a close look at how the
ALJ decided the matter.

Here is how the ALJ explained his

decision about how much weight to accord not just to Dr.
Brautigan’s opinions, but to all of the medical opinions found in
the record.
First, without reference either to Dr. Brautigan’s or any
other medical opinions, the ALJ reviewed the treatment records
concerning Plaintiff’s carpal tunnel syndrome and De Quervain’s
tenosynovitis and concluded that those records did not “warrant
restrictions beyond the established residual functional capacity”
- which did not include any limitations on Plaintiff’s use of her
wrists, hands, or fingers.

(Tr. 35).

It appears the ALJ reached

that conclusion because he interpreted the medical records to
show that all of her wrist problems had been successfully treated
with either surgery or injections and that all of her symptoms
had resolved.

The ALJ’s decision later confirms that he viewed

the records that way; he gave only limited weight to the opinions
of the state agency physicians, Drs. Bolz and Manos, on the
question of wrist restrictions, noting that “the claimant’s
carpal tunnel surgeries have been successful to resolve her
numbness and neurological symptoms.”

(Tr. 36).

The ALJ also

rejected the results of the functional capacity testing, which
showed both left wrist weakness and an inability to lift more
than 25 pounds, as not coming from a medical source and as
inconsistent with a notation in one medical report (the one from
Dr. Holt which was made five months after her left carpal tunnel
surgery) that she had “good strength.”

(Tr. 496).

Finally, turning to Dr. Brautigan’s opinion, the ALJ said
this:
The claimant’s treating orthopedist, Brad
Brautigan, M.D., submitted a letter dated July 22,
2013. ... Dr. Brautigan opined that the claimant
suffers from type I insulin diabetes and bilateral
carpal tunnel syndrome, which makes her “quite
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disabled.” Specifically, he noted that the claimant
has a very difficult time with manual tasks and she
cannot sustain repetitive hand motions or heavy
manipulation wit her hands. Hence, he concluded she
has a work restriction of lifting no greater than five
to eight pounds on a repeated basis. ... This opinion
is given limited weight. Although Dr. Brautigan is a
treating physician, his findings are inconsistent with
the claimant’s treatment records. Specifically, her
examinations reflect intact sensation to light touch,
no areas of altered sensation or hypersensitivity, no
atrophy or deformity, a good range of motion, and good
strength. ... Moreover, her carpal tunnel surgeries
were successful.
(Tr. 37).

Plaintiff argues that the ALJ did not follow the

proper method of analysis for treating source opinions, never
finding that the opinion was not supported by medically
acceptable clinical or diagnostic techniques, and that the ALJ
incorrectly determined that Dr. Brautigan’s opinions were
inconsistent with the medical evidence of record.

Among other

reasons, Plaintiff points out that all of the allegedly
inconsistent treatment notes are from 2012, which was prior to
the right carpal tunnel surgery.

Lastly, she claims that there

is nothing in the record supporting the ALJ’s own interpretation
of the medical records, and that a successful surgical procedure
cannot be equated with a resolution of the problems that created
the need for surgery in the first instance.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(c)(if “a treating source's opinion on the issue(s) of
the nature and severity of [a claimant's] impairment(s) is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, [the Commissioner]
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will give it controlling weight”); see also Lashley v. Secretary
of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983); Estes v. Harris,
512 F.Supp. 1106, 1113 (S.D. Ohio 1981).

However, in evaluating

a treating physician’s opinion, the Commissioner may consider the
extent to which that physician’s own objective findings support
or contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
The Court finds Plaintiff’s arguments about the
insufficiency of the ALJ’s decision-making process to be
persuasive.

First, the ALJ did not discuss whether Dr.

Brautigan’s opinions (or the opinions of the state agency
physicians, for that matter) were “well-supported by medically
acceptable clinical and laboratory diagnostic techniques,”
something which §404.1527(c) requires to be done before
discounting a treating source opinion.

The ALJ did discuss other

reasons for giving that opinion less than controlling weight but
“these factors are properly applied only after the ALJ has
determined that a treating-source opinion will not be given
controlling weight” based on the two criteria set forth in the
opening portion of §404.1527(c).

Gayheart v. Comm’r of Social

Security, 710 F.3d 365, 376 (6th Cir. 2013).
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Second, and more significantly, the ALJ engaged in an
impermissible interpretation of the medical evidence, and did so
without any support from the record.

It appears, for example,

that he rejected both state agency physicians’ opinions as to
Plaintiff’s lifting capacity - they both limited it to 20 pounds
occasionally and ten pounds frequently - simply because one postoperative report dealing with Plaintiff’s left wrist issue showed
“normal strength.”

It is hard to see how that comment relates to

her overall lifting ability with both hands.

He did the same for

the physical capacity evaluation even though Plaintiff gave
maximal effort during that evaluation and her ability to lift was
actually tested.

Further, the

comment relied upon by the ALJ

came prior to the right carpal tunnel surgery and was made at a
time when that condition was still present.

A reasonable person

could not have interpreted that isolated comment as a medical
conclusion about the extent of Plaintiff’s ability to lift and
carry, both occasionally and repetitively, in a work setting.
Additionally, Plaintiff is correct that there is not a
necessary correlation between the successful nature of a surgical
procedure and total resolution of the issue which precipitated
the surgery, especially when carpal tunnel syndrome affects
repetitive, rather than occasional, use of the hands and wrists.
Dr. Holt’s note, relied heavily upon by the ALJ, does not address
the issue of repetitive use of the left wrist or hand at all.
Further, the note does not demonstrate complete resolution of the
problem; Dr. Holt reported abnormal signs including thickness in
the incision area and some tenderness.

Also, at that office

visit, Plaintiff reported occasional numbness or tingling in the
morning, some lack of sensitivity of touch, and occasional
shooting pains in the incision area, none of which were
contradicted by the objective findings, and none of which were
addressed by the ALJ.

The same can be said for Dr. Brautigan’s

June 20, 2013 note, also relied on by the ALJ, which reports pain
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over the incision site but a resolution of numbness.

Although

that note does not address whether Plaintiff was, after surgery,
able to resume normal lifting and other repetitive activities
with either hand or wrist, Dr. Brautigan’s opinion, which came
only a month later, affirmatively addresses that question, saying
that she could not.

The ALJ simply chose to interpret the

earlier treatment note as being inconsistent with the opinion
even though they do not address the same aspects of Plaintiff’s
functional capacity.
In many respects, this case is very similar to another case
recently decided by this Court, Mabra v. Commissioner of Social
Sec., 2012 WL 2319245 (S.D. Ohio June 19, 2012), adopted and
affirmed 2012 WL 3600127 (S.D. Ohio Aug. 21, 2012).

There,

Magistrate Judge Deavers extensively recited the law concerning
an ALJ’s duty not to engage in an independent, and unsupported,
analysis of the medical evidence, noting that some courts had
even gone so far as to hold that an ALJ may never make a residual
functional capacity finding on the basis of “bare medical
findings” without some expert interpretation of those findings.
Id. at *9-10, citing Roso v. Comm'r of Soc. Sec., 2010 WL
1254831, *8 (N.D. Ohio March 11, 2010).

While there may be cases

in which an ALJ’s own interpretation of medical findings is
permissible, at least to some extent, this is not one of them.
The conclusion the ALJ drew here is that someone who has suffered
from carpal tunnel syndrome and De Quervain’s tenosynovitis, and
has had two surgeries which did not produce any significant
complications, must be able to lift up to fifty pounds
occasionally and 25 pounds frequently with absolutely no
restrictions on the repetitive use of the hands for either fine
or gross manipulation.

To draw that conclusion without any

expert support would, under Mabra and the cases cited therein, be
questionable; to do so in a way that contradicts all of the
medical opinions of record, including the opinion of the treating
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physician, and to rely on that physician’s own records in
reaching that conclusion, is reversible error.

Plaintiff may not

be as limited as Dr. Brautigan has concluded, but there is no
reasonable support for the ALJ’s conclusion that she was capable
of medium work without any limitations at all, including
limitations on repetitive lifting and repetitive hand movements.
A remand under sentence four is therefore required.
B.

Sentence Six Remand

Plaintiff has also moved for a sentence six remand.

The

disposition of her request for a sentence four remand moots that
issue.

The ALJ should, however, consider the additional

evidence, especially as it relates to the recurrence of symptoms
of De Quervain’s tenosynovitis in 2013 and the impact that
Plaintiff’s return to work had on her carpal tunnel syndrome.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained and that the case be
remanded to the Commissioner pursuant to 42 U.S.C. §405(g),
sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
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object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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