Irvin v. Colvin
Filing
22
MEMORANDUM (Order to follow as separate docket entry)As the Court has noted (Page 20, ante), the record documents hand complaints that could be expected to limit Plaintiffs ability to finger, feel, handle, and grasp. The Court has also found that th e record is not adequately developed to intelligently quantify the limiting effects of Plaintiffs various hand afflictions. Thus, Plaintiffs allegations regarding the limiting effects of his hand symptomology must be credited unless the Agency can p oint to something in the existing record which this Court has been unable to find that reasonably discredits Plaintiff on this issue. In the alternative, as suggested earlier, it is likely necessary to expand this record to determine whether all Plaintiffs impairments, along with their cumulative effect, have been adequately accounted for by the ALJs RFC determination.Signed by Honorable Richard P. Conaboy on 7/6/17. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
John Irvin
:
Plaintiff
: Civil No. 3:16-CV-2007
v.
: (Judge Richard P. Conaboy)
Nancy A. Berryhill,1
Acting Commissioner of
Social Security
:
:
Defendant.
:
_________________________________________________________________
Memorandum
I.
Background.
We consider here the appeal of Plaintiff John Irvin from an
adverse decision of the Social Security Administration (“SSA”) or
(“Agency”) regarding his application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
Plaintiff’s claims were initially denied at the administrative
level on July 11, 2013.
Plaintiff then requested a hearing before
an administration law judge (“ALJ”) and received one on April 8,
2015 before ALJ Michael F. Colligan.
On May 20, 2015, the ALJ
issued a decision denying Plaintiff’s applications for benefits
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure which addresses the substitution of parties when a
public officer is replaced, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. Fed. R. Civ. P. 25(d). No further action needs to 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. Section 405(g), which states that “[a]ny action instituted in accordance with this
subsection shall survive notwithstanding any change in the person occupying the office of
Commission of Social Security or any vacancy in such office.”
1
whereupon Plaintiff requested review by the Appeals Council.
On
August 4, 2016, the Appeals Council affirmed the ALJ’s decision.
Plaintiff has appealed to this Court which enjoys jurisdiction over
this matter pursuant to 42 U.S.C. § 405(g).
Plaintiff’s applications for DIB and SSI are predicated on his
allegation that he became disabled on March 6, 2013.
Plaintiff
claims that his alleged disability is a result of a left shoulder
injury status post arthroscopy, left shoulder DJD, cervical
degenerative disc disease, asthma/COPD, Raynaud’s disease,
urticaria, and bilateral basal arthritis of the thumbs.
II.
Testimony Before the ALJ.
On April 8, 2015, Plaintiff testified before the ALJ.
accompanied by his attorney, Stephen J. Hogg.
He was
Also testifying was
a vocational expert (“VE”), Dr. Paul Anderson.
Plaintiff testified
that he was 54 years of age on the date of the hearing, that he was
right-handed, that he graduated from high school, that he served in
the military, and that he had training as a barber and held a
license as a barber manager.
(R.at 30).
Plaintiff stated that he had briefly worked at two jobs after
his alleged onset date.
He could not recall the identity of the
first employer but identified Amazon as the second employer.
first job had been as a cashier at a truck stop.
was work in a warehouse.
The
The job at Amazon
Plaintiff stated that the work at Amazon
was full-time but that he was forced to quit “when my thumbs came
2
into play.”
(R.31-21).
Before his alleged onset date Plaintiff
stated that he had worked as a self-employed barber and as a barber
in shops owned by others.
Before that, Plaintiff worked for the
Pennsylvania Bureau of Worker’s Compensation and the Pennsylvania
Liquor Control Board as a clerk doing general office work.
Even
earlier in his career Plaintiff had worked as a van driver
transporting indigent persons to medical appointments, school, and
work.
Plaintiff’s work history goes back to the mid 1980's.
(R.32-33).
In March of 2013, Plaintiff stopped working as a barber due to
pain in his left shoulder.
At that time working for one day would
so exacerbate his left shoulder pain that he would need to take
several days off for the pain to subside.
As of the date of his
hearing (April 8, 2015) Plaintiff described his shoulder as “better
than it was” but stated that he still has pain.
The pain is
aggravated if he tries to raise his arm to shoulder level.
makes it difficult to work as a barber.
This
He also testified to a
problem with his thumbs that began in the summer of 2014.
The
problem with his thumbs required surgery which was helpful to some
degree.
However, as of April 8, 2015, he still had difficulty
pinching or holding objects and has little power in his grip.
(R.33-35).
Plaintiff also testified that he has been asthmatic
since he was a child and that, while his asthma is always present,
it is typically well-controlled by mediation like Combivent and
3
Symbicort.
(R.36).
Upon questioning by his attorney, Plaintiff explained that
since March of 2013 his problems with his thumb function would not
permit him to work as a barber full-time.
These symptoms included
extreme stabbing pain at the base of his thumbs that, once started,
would persist for hours.
Even more problematic was his left
shoulder and this was so even after undergoing shoulder surgery in
2013.
He also began experiencing problems in his right shoulder at
some indeterminate time in 2013, but the right shoulder problem is
not as serious as that in his left shoulder.
He estimated that he
cannot lift more than ten pounds overhead with his left arm and
that his right arm is somewhat stronger.
He stated also that he
has more mobility in his right shoulder than in his left.
41).
(R.37-
Plaintiff then testified to neck problems that he
characterized as a “ratching wrench” or a “popping”.
He also
stated that he has a hard time turning his head and that when his
neck “pops” it produces pain that lasts for seconds.
He also
stated that he still drives but finds it impossible to wrap his
thumbs around the wheel.
He holds the bottom of the steering wheel
against his palms and exerts upward pressure as needed to turn the
wheel.
(R.42).
Plaintiff also testified that he suffers from urticaria and
4
Raynaud’s disease.2
Both these conditions result in a
discoloration of the hands caused by poor circulation.
weather aggravates both conditions.
Wet or cold
These conditions are
characterized by itching, swelling and hives.
During the winter
Plaintiff states that these symptoms are a daily occurrence.
While
these conditions have been present since Plaintiff’s alleged onset
date, the Plaintiff was initially diagnosed with these conditions
in 1985 or 1986.
Plaintiff also experiences bilateral numbness in
his hands and feet as a result of his urticaria and Raynaud’s
disease.
These symptoms prevent his participation in activities
such as climbing a rope, archery, using a rifle, and bicycling.
His ability to handle things is also compromised because his hands
lack sensitivity.
(R.42-45).
While complaining that he is sometimes short of breath,
Plaintiff indicated that he could walk from one half mile to a mile
without becoming winded.
He could not, however, provide any
estimate of his walking pace.
He also stated that, after walking
about one mile, pain in his lower back begins to appear. (R.46-47).
2
The Mayo Clinic website defined Urticaria (also known as chronic hives) as: “...a skin
reaction that causes red or white itchy welts. The welts vary in size and appear and fade repeatedly
as the reaction runs its course. Chronic hives are a condition in which the welts last more than six
weeks or recur over months or years. Chronic hives usually are not life threatening. But the
condition can be very uncomfortable and interfere with sleep and daily activities.” The Mayo Clinic
website defines Raynaud’s disease as a condition that “causes some areas of the body - - such as your
fingers or toes - - to feel numb and cold in response to cold temperatures or stress. In Raynaud’s
disease, smaller arteries that supply blood to your skin narrow, limiting blood circulation to affected
areas (vasospasm}.”
5
In describing a typical day since his alleged onset of
disability in March of 2013, Plaintiff stated: that he gets up and
makes coffee and something for breakfast; that he does the laundry
as needed but uses only his right hand to complete that task; that
his back pain limits his standing and walking; and that after his
shoulder surgery in September of 2013, he was “pretty limited” for
an unspecified time.
He stated further that when he worked in the
Amazon warehouse - -at a time after his alleged onset date - -he
was putting in ten hour days pushing carts that weighed up to 450
pounds.
This became difficult “after a while” due to pain in his
neck and back and the problems with his thumbs.
Plaintiff stated
that he would no longer be capable of doing the work he did at the
Amazon work site.
(R.48-50).
Also testifying was Dr. Paul Anderson, a VE.
Dr. Anderson
discussed the classifications of the jobs that Plaintiff had
performed in the past.
He described Plaintiff’s various work
experiences as light and skilled (barber); medium and semi-skilled
(van driver); and light and unskilled (cashier).
Dr. Anderson also
responded to a hypothetical question from the ALJ that asked him to
assume an individual the same age as the claimant and of the same
educational level and work history.
He was asked to further assume
that the individual would be capable of light work in terms of
exertion and would have additional restrictions in that he would
require an air-conditioned work environment and one in which there
6
would be no exposure to temperature extremes or dust and fumes
beyond what would be expected in a well-maintained home or office
setting.
Additional limitations would include: no reaching above
shoulder level with the left arm; and no climbing involving
ladders, ropes, or scaffolds.
(R.50).
After outlining the above-described hypothetical question, the
ALJ asked the VE whether jobs existed in the national economy
within the capacities stated in the hypothetical question.
The VE
then stated that the hypothetical individual would be capable of
performing as a cashier, an information clerk, or an usher.
The VE
added that the classifications he specified for the various jobs
that he mentioned were consistent with publications of the United
States Department of Labor (R.51-52).
The Plaintiff’s counsel then asked the VE whether his opinion
of the hypothetical individual’s ability to do the various jobs he
had identified would change if that hypothetical individual was
incapable of fingering, feeling, and handling more than
occasionally.
The VE responded that, given these additional
limitations, all the jobs he had identified would be precluded.
(R.53).
III. Relevant Medical Evidence.
A.
Dr. Keith Cordischi.
Dr. Cordischi treated Plaintiff at the Lebanon Veteran’s
Hospital.
In May of 2013, Dr. Cordischi saw Plaintiff for an
7
evaluation of his left shoulder.
He indicated that an MRI of
Plaintiff’s left shoulder revealed a large spinoglenoid cyst,
suprascapular nerve lesion, and loose bodies in the shoulder joint.
Dr. Cordischi noted also that Plaintiff denied numbness or tingling
but that he had pain with overhead reaching maneuvers and could not
maintain the left shoulder in a static position, such as for
cutting hair.
(R.370-71).
Dr. Cordischi noted that Plaintiff was
a candidate for arthoscopic surgery of the left shoulder to
alleviate the aforementioned conditions.
(R.371).
The arthroscopic procedure was performed in September of 2013
and Plaintiff experienced significant benefit from it.
On October
30, 2013, Dr. Cordischi assessed that Plaintiff was doing very well
and had minimal pain referable to his left shoulder.
Dr. Cordischi
stated: “The patient is doing amazingly well given the extent of
his injury and surgery.”
(R.575).
In January of 2014, Dr.
Cordischi saw Plaintiff for a scheduled follow-up visit.
The
progress notes of that visit indicate that Plaintiff continued to
progress and was “in very bright spirits and is very motivated.”
(R.572).
In April of 2014, Dr. Cordishci saw Plaintiff once again
and authored progress notes indicating: “The patient has done an
outstanding job rehabbing left shoulder and I emphasize to him the
importance of keeping up with his left shoulder home rotator
cuff/periscapular exercise program.
I provided him with a note
today allowing him to return to full unrestricted duties at
8
work....
We agree that I will see him back on a p.r.n. basis in
the future, and that we have both been quite pleased with the
results of his surgery, given the extent of his shoulder
pathology.”
(R.552).
On July 6, 2014, the Plaintiff called the VA to report that he
felt like he re-injured the bicep that Dr. Cordischi had repaired.
This happened while he was exercising and felt a sudden “pop” and
experienced some slight pain.
(R.540).
This incident prompted a
return to Dr. Cordischi on July 28, 2014 incident to which Dr.
Cordischi assessed left shoulder pain and a possible biceps tendon
rupture.
(R>537).
Dr. Cordischi ordered an MRI of Plaintiff’s
left shoulder which was performed on August 11, 2014.
That MRI
demonstrated: (1) post operative changes in the left shoulder; (2)
tear of the supraspinatus tendon with probable vertical split tear
of the long head of the biceps tendon anchor; and (3) a ganglion
cyst in the subacromial region.
B.
(R.517).
Dr. Daniel P. Healy, M.D.
On August 8, 2014, Plaintiff saw Dr. Healy with complaints of
pain in both thumbs.
thumbs.
The pain was concentrated at the base of the
Dr. Healy’s notes indicate that this bilateral thumb pain
affected Plaintiff’s “power pinch” and general ability to grip
objects.
Dr. Healy read x-rays of Plaintiff’s thumbs that he
interpreted to indicate basal joint arthritis involving both the
basal and scaphotrapezial joints in both thumbs.
9
Dr. Healy’s notes
reflect his plan to perform resection surgery at the basal joint of
both Plaintiff’s thumbs.
(R.583).
Dr. Healy performed a right thumb basal joint arthroplasty on
Plaintiff on September 2, 2014.
(R.585).
On October 15, 2014, Dr.
Healy observed that Plaintiff still lacked full mobility in his
right thumb and that he was experiencing minimal tenderness on
palpation.
He stated that he would re-examine Plaintiff in six
weeks and that if he had progressed well he would schedule surgery
on Plaintiff’s left thumb.
(R.612).
Dr. Healy did perform a left thumb basal joint arthroplasty on
Plaintiff on November 25, 2014.
A follow-up examination of
December 3, 2014 revealed that Plaintiff was doing “well” with no
sign of infection and Dr. Healy’s progress note of that examination
indicates that Plaintiff was cautioned against overuse of the left
hand and advised that gradual return of function would take six to
eight weeks.
(R.610-11).
Dr. Healy saw Plaintiff again on January
7, 2015 and observed at that time that there had been a steady
improvement in Plaintiff’s symptoms in both thumbs and that the
right thumb had improved significantly.
The left thumb, which had
been operated on more recently, still showed “persistent swelling,
pain, and limited mobility”.
Dr. Healy opined that both thumbs
were improved following surgery.
(R.609).
On February 13, 2015,
Dr. Healy saw Plaintiff again and noted that he was “gaining
mobility and confidence.”
Dr. Healy also noted that Plaintiff
10
exhibited pain-free motion with improved grip strength and power
pinch, but that he still exhibited some weakness.
Dr. Healy’s plan
called for Plaintiff to progress to full activity through
strengthening and motion exercises.
(R.713).
Dr. Healy’s last
progress note was recorded some seven months after his first
session with the Plaintiff.
C.
Harshadkumar Patel, M.D.
On June 25, 2013, Dr. Patel reviewed all medical documents
compiled to that time concerning Plaintiff preparatory to executing
a disability evaluation for the Agency.
Dr. Patel did not
physically examine the patient and there is no indication in the
record that he ever saw him.
Based upon his review of the medical
notes and diagnostic testing that had been performed by Plaintiff’s
medical providers, Dr. Patel found that Plaintiff’s various
problems with his left shoulder constituted a severe impairment and
that his COPD was “mild” and, consequently, rated it as a nonsevere impairment.
(R.63).
Dr. Patel did not address Plaintiff’s
basal thumb arthritis because the records documenting that
condition were not available to him.
Dr. Patel’s assessment of Plaintiff’s residual functional
capacity included certain limitations.
He found that Plaintiff:
could only occasionally lift up to 20 pounds; could frequently lift
up to ten pounds; could stand and walk for six hours in and eighthour day; could only occasionally climb ropes or ladders; had
11
limited ability to lift overhead with his left hand; and should
avoid exposure to machinery or heights.
IV.
(R.64-65).
ALJ Decision.
The ALJ’s decision (Doc. 11-2) includes the following Findings
of Fact and Conclusions of Law:
1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2018.
2.
The claimant has not engaged in substantial gainful
activity since March 6, 2013, the alleged onset date.
3.
The claimant has the following severe impairments:
left shoulder injury s/p arthroscopy; left shoulder DJD;
cervical degenerative disc disease; and asthma/COPD.
4.
The claimant does not have an impairment or combination
of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(b), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926.
5.
After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that he: will have to work in an airconditioned environment so that he would not have to be
exposed to temperature extremes or dust, fumes, or odors
beyond that found in a well-maintained home or office
12
setting; cannot reach above the shoulder level with the
left arm; and cannot climb ladders, ropes, or scaffolds.
6.
The claimant is capable of performing past relevant work
as a Cashier II as it is generally performed in the
economy.
This work does not require the performance of
work-related activities precluded by the claimant’s
residual functional capacity.
(20 CFR 404.1565 and
416.965).
7.
The claimant has not been under a disability, as defined
in the Social Security Act, from March 6, 2013, through
the date of this decision.
V.
Disability Determination Process.
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3
It is necessary for the
Commissioner to ascertain: 1) whether the applicant is engaged in a
3
“Disability” is defined as 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 that 12
months . . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled
only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area
in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
13
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 CFR §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
work.
If the claimant satisfies this burden, then the Commissioner
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found that Plaintiff is able
to perform his past relevant work as a cashier.
(R.at 17).
VI. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
14
Substantial evidence
means “more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
The Third
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise.
A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence.
Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion.
See Cotter, 642 F.2d at 706
(“Substantial evidence” can only be
considered as supporting evidence in
relationship to all the other evidence in the
15
record.”) (footnote omitted).
The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.
If she has not done so and has not
sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
In Cotter, the Circuit Court clarified that the ALJ must
not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an
exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
16
See, e.g., Knepp v.
“There is no requirement
that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).
Hur v. Barnhart, 94 F. App’x 130, 133 (3d
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s decision, . .
.
the Cotter doctrine is not implicated.”
Hernandez v.
Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
Hartranft,
181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
“However,
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
Where the ALJ’s decision
is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.
See, e.g., Albury v.
Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
17
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).
An ALJ’s
decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII. Discussion.
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.
See Dobrowolsky,
Social Security proceedings are not strictly
adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.
Id.
“These
proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”
Hess v. Secretary of Health,
Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).
As such,
the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.
Dobrowolsky, 606
Further, the court in Dobrowolsky noted “the cases
demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
18
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.
Id.
Plaintiff’s Allegation of Error.
Plaintiff’s counsel asserts that the ALJ made four errors
that, individually or collectively, require a reversal or remand of
the Agency’s decision.
We shall consider these in the order they
were presented.
1.
Whether the ALJ Erred in Failing to Give Controlling
Weight to the Opinion of Plaintiff’s Treating Physicians?
Plaintiff’s counsel correctly asserts that the “treating
physician rule” (20 CFR § 404.1527) requires that an ALJ accord
controlling weight to the medical opinion of a treating source if
that opinion is well-supported by the medically accepted clinical
and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence of record.
While Plaintiff has
correctly stated the rule, it unfortunately does not apply to the
evidence of record in this case.
The only “opinion” Plaintiff cites is an excerpt from a
progress note authored by Dr. Keith Cordischi on May 22, 2013.
(R.372).
The relevant language states: “Given the extent of his
suprascapular nerve injury and the fact that he can no longer
function as a barber, and the fact that we are planning to go forth
with surgery, I told him that certainly I could fill out disability
paperwork for him and the patient will work on getting back to me
19
before the surgery.”
This excerpt addresses only Plaintiff’s
shoulder injury and refers only to his ability to function as a
barber.
Because the operative standard for a claimant Plaintiff’s
age to receive DIB or SSI is the inability to perform any work that
exists in the national economy, Dr. Cordischi’s willingness to fill
out “disability paperwork” in that context hardly qualifies as a
medical opinion of total disability that would last one year as
required by Social Security regulations.4
Rather, Dr. Cordischi’s
comment can most charitably be seen only as an opinion that
Plaintiff would likely be incapable of working as a barber.
Even
if we accept that to be a statement of fact, disability for
purposes of DIB or SSI would not be established here.
Accordingly,
Plaintiff’s assignment of error on this point must be rejected.
2.
Whether the ALJ Failed to Consider the Combined Effect of
all of Plaintiff’s Impairments?
Plaintiff correctly asserts that, in establishing a claimant’s
residual functional capacity (“RFC”) the ALJ must consider the
combined effect of all Plaintiff’s impairments, be they severe or
non-severe.
Burnett v. Commissioner of Social Security
Administration, 220 F.3d, 112, 122 (3d. Cir. 2000).
4
Plaintiff then
Because the record reveals that Dr. Cordischi is a Veteran’s Administration doctor, the
disability he refers to is likely the sort of service-connected disability administered by the Veteran’s
Administration through one of its programs. The concept of disability and the standards for
establishing it in the sense used by the Veteran’s Administration is markedly different than the
standard used in Social Security cases and, for that reason, cannot be dispositive of disability in this
case.
20
contends that the ALJ’s RFC determination failed to consider the
limiting effects of Plaintiff’s urticaria, Raynaud’s disease, and
bilateral basal joint arthritis in his thumbs.
Plaintiff testified
that he has difficulty with grasping, fingering, and handling
(R.42-45) as a result of these conditions.
The ALJ recognized the
existence of Plaintiff’s urticaria, Raynaurd’s disease, and basal
thumb arthritis, but did not meaningfully provide for the limiting
effects, however slight, these conditions may present in his RFC
determination (R.13).
While the ALJ did provide that Plaintiff should work only in
an environment where he is not exposed to temperature extremes,
thus potentially accommodating Plaintiff’s urticaria symptoms, none
of the other limitations that could be expected to result from
Raynauds’s disease or basal joint arthritis are addressed in the
RFC determination.
In light of the VE’s testimony (R.53-54) that
the inability to finger, feel, and handle on less than an
occasional basis would preclude Plaintiff from performing the jobs
the ALJ has found to be within his capacities, the Court finds that
the record is inadequately developed to properly determine the
combined extent of Plaintiff’s limitations from his urticaria,
Raynaurd’s disease and basal joint arthritis.
Accordingly, the
Court finds for Plaintiff on this point and will remand for further
consideration of this issue to include amplification of the record
if necessary.
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3.
Whether the ALJ Erred in Finding that Plaintiff Did Not
Meet the Criteria of Listing 1.02?
Listing 1.02, as applied to Plaintiff’s upper extremity
limitations, reads as follows:
1.02 Major dysfunction of a joint(s)(due to any cause):
Characterized by gross and anatomical deformity(e.g.
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of
the affected joint(s), and finding on appropriate
medically acceptable imaging of joint space narrowing,
bony destruction, or ankylosis of the affected joint(s).
With:...
b.
Involvement of one major peripheral joint in each
upper extremity (i.e. shoulder, elbow, or wristhand), resulting in inability to perform fine and
gross movements effectively as defined in 1.00B2c.
Plaintiff argues that “[t]he Administrative Law Judge failed to
explain why the left shoulder impairment after the recurrence of
symptoms in May of 2014 and the bilateral thumb impairments did not
meet or equal the listing.”
(Doc. 18 at 20).
The ALJ’s explanation for rejecting the notion that Plaintiff
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satisfied Listing 1.02 stated:
Listing 1.02, relating to major dysfunction of a joint,
requires gross anatomical deformity and chronic joint
pain and stiffness with signs of limitation of motion or
other abnormal motion of the affected joint(s), and
findings on appropriate medically acceptable imaging of
joint space narrowing, bony destruction or ankylosis of
the affected joint.
The Listing also requires
involvement of one major peripheral joint in each upper
extremity resulting in an inability to perform fine and
gross movements effectively.
The alleged impairments do
not meet this listing because there is no evidence of the
foregoing in the record.
(R.at 13).
Having considered the ALJ’s explanation and having reviewed
the record, the Court concludes that the ALJ’s rejection of
Plaintiff’s claim that he satisfied Listing 1.02 was appropriate.
The record simply does not support the proposition that Plaintiff
had the requisite profound loss of use or anatomical deformity in
each upper extremity to justify a finding of disability under
Listing 1.02.
Specifically, the medical evidence of the
restrictions in Plaintiff’s right shoulder does not establish the
requisite severity of impairment in that joint to satisfy the
Listing.
Similarly, the evidence of the impairment caused by
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Plaintiff’s bilateral thumb problems is not well-quantified in the
record and, as such, does not establish the expressed criteria of
the Listing.
Certainly Plaintiff’s brief does not point the Court
to any evidence of that nature.
Accordingly, Plaintiff’s argument
on this point will be rejected.
4.
Whether the ALJ Erred in Finding the Plaintiff Not Fully
Credible Regarding His Allegations of Pain and Loss of
Function?
Plaintiff’s argument on this point is that the ALJ
inappropriately found that his acknowledgments that he had danced
at a wedding, continued to drive, and walked several miles each
night even after his alleged onset date were reason enough to
conclude that all his claimed limitations were overstated.
Plaintiff argues that while these admissions tend to cast doubt on
the severity of his low back and hip problems, they in no way
provide a reason to discount his testimony regarding his hand
limitations.
The Court finds that Plaintiff’s argument on this
point is valid.
As the Court has noted (Page 20, ante), the record documents
hand complaints that could be expected to limit Plaintiff’s ability
to finger, feel, handle, and grasp.
The Court has also found that
the record is not adequately developed to intelligently quantify
the limiting effects of Plaintiff’s various hand afflictions.
Thus, Plaintiff’s allegations regarding the limiting effects of his
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hand symptomology must be credited unless the Agency can point to
something in the existing record which this Court has been unable
to find that reasonably discredits Plaintiff on this issue.
In the
alternative, as suggested earlier, it is likely necessary to expand
this record to determine whether all Plaintiff’s impairments, along
with their cumulative effect, have been adequately accounted for by
the ALJ’s RFC determination.
BY THE COURT
S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court
Dated: July 6, 2017
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