HICKMAN v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, CAROLYN
Filing
12
ORDER granting 8 Motion for Summary Judgment and denying 10 Motion for Summary Judgment. The case is remanded for further evaluation in light of this Order. Signed by Judge Alan N. Bloch on 9/29/2016. (dpo)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID ROBERT HICKMAN,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
Civil Action No. 15-224-E
O R D E R
AND NOW, this 29th day of September, 2016, upon
consideration of Defendant’s Motion for Summary Judgment (Doc.
No. 10) filed in the above-captioned matter on February 8, 2016,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff’s Motion for
Summary Judgment (Doc. No. 8) filed in the above-captioned
matter on January 6, 2016,
IT IS HEREBY ORDERED that said Motion is GRANTED.
Accordingly, this matter is hereby remanded to the Commissioner
of Social Security (“Commissioner”) for further evaluation under
sentence four of 42 U.S.C. § 405(g) in light of this Order.
I.
Background
Plaintiff David Robert Hickman filed a claim for Disability
Insurance Benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. §§ 401-434, and for Supplemental Security
1
Income under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f, on
April 30, 2010, claiming that he became disabled on November 6,
2009, due to diabetes, seizures, neuropathy, fibromyalgia,
depression, and intestinal problems.1
(R. 227-33, 234-40, 273).
After being denied initially on August 10, 2010, Plaintiff
sought, and obtained, a hearing before an Administrative Law
Judge (“ALJ”) on August 16, 2011.
150-52).
(R. 29-51, 125-29, 131-35,
In a decision dated September 12, 2011, the ALJ denied
Plaintiff’s request for benefits.
(R. 101-114).
The Appeals
Council granted review of the ALJ’s decision on March 16, 2013,
and issued an order vacating the ALJ’s decision and remanding
the matter to an ALJ for a new hearing and re-consideration.
(R. 120-22).
A new hearing was held on August 26, 2013.
(R. 52-94).
On
November 20, 2013, a different ALJ issued a decision denying
Plaintiff’s claim for benefits.
(R. 15-26).
On July 9, 2015,
the Appeals Council declined further review of the case.
3).
(R. 1-
Having exhausted his administrative remedies, Plaintiff
filed a timely appeal with this Court, and the parties have
filed cross-motions for summary judgment.
1
As will be further discussed below, Plaintiff later also
alleged to be disabled due to injuries involving his right hand.
2
II.
Standard of Review
Judicial review of a social security case is based upon the
pleadings and the transcript of the record.
405(g).
See 42 U.S.C. §
The scope of review is limited to determining whether
the Commissioner applied the correct legal standards and whether
the record, as a whole, contains substantial evidence to support
the Commissioner's findings of fact.
See Matthews v. Apfel, 239
F.3d 589, 592 (3d Cir. 2001) (“[t]he findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive” (quoting 42 U.S.C. §
405(g))); Schaudeck v. Commissioner of Soc. Sec. Admin., 181
F.3d 429, 431 (3d Cir. 1999) (noting that the court has plenary
review of all legal issues, and reviews the administrative law
judge's findings of fact to determine whether they are supported
by substantial evidence).
“Substantial evidence” is defined as “more than a mere
scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate” to support a conclusion.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
Plummer v.
However, a “single
piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict
created by countervailing evidence.”
Morales v. Apfel, 225 F.3d
310, 317 (3d Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d
110, 114 (3d Cir. 1983)).
“Nor is evidence substantial if it is
3
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.”
Id.
A disability is established when the claimant can
demonstrate some medically determinable basis for an impairment
that prevents him or her from engaging in any substantial
gainful activity for a statutory twelve-month period.
See
Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001).
“A
claimant is considered unable to engage in any substantial
gainful activity ‘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 ....’”
Id. at
39 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration (“SSA”) has promulgated
regulations incorporating a five-step sequential evaluation
process for determining whether a claimant is under a disability
as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.
In
Step One, the Commissioner must determine whether the claimant
is currently engaging in substantial gainful activity.
C.F.R. §§ 404.1520(b), 416.920(b).
will be denied.
See 20
If so, the disability claim
See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
If not, the second step of the process is to determine whether
4
the claimant is suffering from a severe impairment.
C.F.R. §§ 404.1520(c), 416.920(c).
See 20
“An impairment or
combination of impairments is not severe if it does not
significantly limit [the claimant’s] physical or mental ability
to do basic work activities.”
416.921(a).
20 C.F.R. §§ 404.1521(a),
If the claimant fails to show that his or her
impairments are “severe," he or she is ineligible for disability
benefits.
If the claimant does have a severe impairment,
however, the Commissioner must proceed to Step Three and
determine whether the claimant’s impairment meets or equals the
criteria for a listed impairment.
416.920(d).
See 20 C.F.R. §§ 404.1520(d),
If a claimant meets a listing, a finding of
disability is automatically directed.
If the claimant does not
meet a listing, the analysis proceeds to Steps Four and Five.
Step Four requires the ALJ to consider whether the claimant
retains the residual functional capacity (“RFC”) to perform his
or her past relevant work.
416.920(e).
See 20 C.F.R. §§ 404.1520(e),
The claimant bears the burden of demonstrating an
inability to return to his or her past relevant work.
Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
See
If the
claimant is unable to resume his or her former occupation, the
evaluation moves to the fifth and final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate that the claimant is capable
5
of performing other available work in the national economy in
order to deny a claim of disability.
404.1520(g), 416.920(g).
See 20 C.F.R. §§
In making this determination, the ALJ
should consider the claimant’s RFC, age, education, and past
work experience.
See id.
The ALJ must further analyze the
cumulative effect of all the claimant’s impairments in
determining whether he or she is capable of performing work and
is not disabled.
See 20 C.F.R. §§ 404.1523, 416.923.
III. The ALJ's Decision
In the November 20, 2013 decision upon remand, the ALJ
found that Plaintiff met the insured requirements of the Social
Security Act through December 31, 2014.
(R. 18).
Accordingly,
to be eligible for DIB benefits, Plaintiff had to establish that
he was disabled on or before that date.
See 42 U.S.C. §§
423(a)(1)(A), (c)(1)(B); 20 C.F.R. §§ 404.101, .110, .131.
The ALJ then proceeded to apply the sequential evaluation
process when reviewing Plaintiff’s claims for benefits.
In
particular, the ALJ found that Plaintiff had not been engaged in
substantial gainful activity since the alleged onset date of
November 6, 2009.
(R. 18).
The ALJ also found that Plaintiff
met the second requirement of the process insofar as he had
several severe impairments, specifically: diabetes mellitus,
diabetic neuropathy, the residual effects of a neck fracture,
and major depressive disorder.
(R. 18).
6
The ALJ found that
Plaintiff’s alleged hand limitation did not qualify as a severe
impairment.
The ALJ concluded that Plaintiff’s impairments did
not meet any of the listings that would satisfy Step Three.
(R.
18-20).
The ALJ found that Plaintiff retained the RFC to perform
sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a), except that he can stand or walk for six hours in a
typical workday; he can sit for six hours in a typical workday;
he can lift 10 pounds occasionally and 3 to 5 pounds frequently;
he requires a brief bathroom break of 2 to 3 minutes three times
per day outside of regularly scheduled breaks; he can only
occasionally do work that involves reaching with the right
shoulder with the hand above shoulder level; he is limited to
the performance of simple, routine, repetitive tasks requiring
only simple work-related decisions; he is limited to incidental
collaboration with coworkers and the public; he can collaborate
with supervisors for thirty minutes during the workday; and he
can have no exposure to dangerous machinery or heat.
24).
(R. 20-
Based on this RFC, Plaintiff established that he is
incapable of returning to his past employment; therefore, the
ALJ moved on to Step Five.
(R. 24).
At Step Five, the ALJ used a vocational expert (“VE”) to
determine whether or not there were a significant number of jobs
in the national economy that Plaintiff could perform.
7
The VE
testified that, based on Plaintiff’s age, education, work
experience, and RFC, Plaintiff could perform jobs that exist in
significant numbers in the national economy, including
surveillance system monitor, mail sorter clerk, and clerical
sorter. (R. 25).
not disabled.
IV.
Accordingly, the ALJ found that Plaintiff was
(R. 25-26).
Legal Analysis
Plaintiff’s primary argument is that the ALJ erred in
failing to include in his RFC any restrictions related to his
right hand limitations.
The Court agrees and will remand the
case for further consideration of Plaintiff’s right hand injury
and its impact on the formulation of Plaintiff’s RFC.
As noted, this case had previously been remanded back to an
ALJ by the Appeals Council.
Between the first and second ALJ
decisions, on July 12, 2012, Plaintiff was involved in an
automobile accident causing damage to his neck and spine, which
impacted, among other things, his dominant right hand.
975).
(R.
Although the ALJ, on remand, considered evidence of
Plaintiff’s hand injury, he found it not to constitute a severe
impairment at Step Two of the sequential analysis.
(R. 18).
In
so finding, the ALJ cited to a record indicating that Plaintiff
had only mild fine fingering limitation and that his gross
handling was intact.
(R. 18).
He did not include any
8
restrictions regarding Plaintiff’s right hand in the RFC.2
20).3
(R.
However, the ALJ failed to account for the substantial
body of other evidence regarding Plaintiff’s right hand injury
contained in the record.
The one piece of evidence to which the ALJ cites in
dismissing Plaintiff’s hand issues is an August 20, 2012
treatment note from Plaintiff’s treating neurosurgeon, William
Diefenbach, M.D.
(R. 940).
While this note does indicate that
Plaintiff is regaining function in his hands and feels that he
is improving,4 other evidence in the record tells a different
2
RFC is defined as “that which an individual is still able
to do despite the limitations caused by his or her
impairment(s).” Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir.
2001). See also 20 C.F.R. §§ 404.1545(a), 416.945(a). Not only
must an ALJ consider all relevant evidence in determining an
individual’s RFC, the RFC finding “must ‘be accompanied by a
clear and satisfactory explication of the basis on which it
rests.’” Fargnoli, 247 F.3d at 41 (quoting Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981)). “‘[A]n examiner’s findings
should be as comprehensive and analytical as feasible and, where
appropriate, should include a statement of subordinate factual
foundations on which ultimate factual conclusions are based, so
that a reviewing court may know the basis for the decision.’”
Id. (quoting Cotter, 642 F.2d at 705). See also S.S.R. 96-8p,
1996 WL 374184 (S.S.A.), at *7 (“The RFC assessment must include
a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities,
observations).”).
3
The RFC does contain a restriction regarding Plaintiff’s
reaching with his right shoulder but does not address
Plaintiff’s issues with his right hand.
4
Even the exhibit to which the ALJ cites references
continued weakness in Plaintiff’s right hand. (R. 940).
9
story.
Plaintiff points out, for example, that Dr. Diefenbach
himself, in a September 15, 2013 report, indicated that
Plaintiff has numbness in his right upper extremity and severe
weakness and lack of function in his dominant right hand.
976).
(R.
Although the ALJ did address the September 15 report in
his decision, he did so only in regard to Dr. Diefenbach’s
ultimate conclusion that Plaintiff is disabled.
(R. 23-24).
Plaintiff does not dispute that a physician’s statement that a
claimant is “disabled” or “unable to work” is not binding on the
ALJ, as the opinion as to whether a claimant is disabled is
reserved to the Commissioner.
See 20 C.F.R. §§ 404.1527(d)(1),
416.927(d)(1); Griffin v. Commissioner of Soc. Sec., 305 Fed.
Appx. 886, 891 (3d Cir. 2009).
Accordingly, the ALJ was not
required to accept the opinion of Dr. Diefenbach to the extent
that he opined merely that Plaintiff was disabled.
However, the ALJ was not at liberty to ignore Dr.
Diefenbach’s findings regarding Plaintiff’s medical condition.
His statement in the September 15 report about Plaintiff’s hand
function was not an opinion, but rather part of his findings as
one of Plaintiff’s treating physicians.
Indeed, he was not
opining as to Plaintiff’s RFC, but reporting his clinical
observations in discussing the numbness, weakness, and lack of
function in Plaintiff’s right hand.
The ALJ appears to dismiss
these findings as merely reporting the subjective complaints of
10
Plaintiff, but fails to explain why Dr. Diefenbach’s statements
should be treated as such, especially in light of his treating
relationship with Plaintiff.
Moreover, the record contains other evidence indicating
possible functional limitations regarding Plaintiff’s ability to
use his right hand.
Other records from Dr. Diefenbach from
after the August 20, 2012 treatment note upon which the ALJ
relied demonstrate continued problems with Plaintiff’s right
hand.
For instance, on August 13, 2013, he noted that Plaintiff
“has had good return to function” from his accident, “but still
with severe disability and lack of function in his dominant
right upper extremity.”
(R. 942).
Furthermore, records from
Dr. Heath Fallin, M.D. of the Pain Management Center at
Meadville Medical Center from April 8, 2013 discuss pain and
numbness in Plaintiff’s right hand.
(R. 828).
Also, records
from Healthsouth Rehabilitation Hospital from shortly before
August of 2012 show substantial weakness in Plaintiff’s right
hand.
(R. 983).
Finally, although the ALJ did make mention of
Plaintiff’s physical therapy records from Meadville Medical
Center from August of 2013, he did not discuss the records fully
in regard to Plaintiff’s right hand.
He does mention, for
example, that Plaintiff’s grip strength is 43 pounds in his
right hand (R. 9, 953), he does so only in the context of
discussing Plaintiff’s neck injury and does not consider the
11
evidence in regard to Plaintiff’s hand condition.
Further, he
does not discuss that Plaintiff’s grip strength in his dominant
right hand is significantly less than the grip strength in his
left hand (68 pounds).
(R. 953).
He also does not mention the
finding, in the same report, that Plaintiff had decreased fine
motor coordination in his right hand.
(Id.).
The ALJ’s failure to address the evidence potentially
contradicting his finding that Plaintiff had no hand limitation
requires remand.
Where, as here, there is potentially
conflicting evidence in the record, the ALJ must explain which
evidence he accepts and rejects and the reasons for his
determination.
See Cruz v. Commissioner of Soc. Sec., 244 Fed.
Appx. 475, 479 (3d Cir. 2007) (citing Hargenrader v. Califano,
575 F.2d 434, 437 (3d Cir. 1978)).
at 42.
See also Fargnoli, 247 F.3d
The findings of Dr. Diefenbach and others must be
considered by the ALJ in considering the limitations caused by
Plaintiff’s hand injury.
The Court notes that, not only did the ALJ not include any
restrictions in Plaintiff’s RFC to account for his right hand
issues, he dismissed the condition out of hand as not even
meeting the low threshold of Step Two.
This step is a de
minimus screening device to dispose of groundless claims.
See
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).
12
It is hard to see how Plaintiff’s pain, numbness, and weakness
in his right hand did not at least reach de minimus status.
It is true that the mere fact that the ALJ did not include
Plaintiff’s right hand limitations as a severe impairment does
not in itself warrant remand.
The Step Two determination as to
whether a claimant is suffering from a severe impairment is a
threshold analysis requiring the showing of only one severe
impairment.
See Bradley v. Barnhart, 175 Fed. Appx. 87, 90 (7th
Cir. 2006).
In other words, as long as a claim is not denied at
Step Two, it is not generally necessary for the ALJ specifically
to have found any additional alleged impairment to be severe.
See Salles v. Comm’r of Soc. Sec., 229 Fed. Appx. 140, 145 n.2
(3d Cir. 2007); Lee v. Astrue, 2007 WL 1101281, at *3 n.5 (E.D.
Pa. Apr. 12, 2007); Lyons v. Barnhart, 2006 WL 1073076, at *3
(W.D. Pa. March 27, 2006).
Since Plaintiff’s claim was not
denied at Step Two, it really does not matter whether the ALJ
correctly or incorrectly found Plaintiff’s right hand condition
to be non-severe.
What does matter is that he failed to consider all of the
evidence regarding Plaintiff’s right hand in determining
Plaintiff’s functional capacity, because even if an impairment
is non-severe, it may still affect a claimant’s RFC.
In
assessing a claimant’s RFC, the ALJ “must consider limitations
and restrictions imposed by all of an individual’s impairments,
13
even those that are not ‘severe.’” S.S.R. 96-8p, 1996 WL 374184
(S.S.A.), at *5 (July 2, 1996).
404.1545(a)(2), 416.945(a)(2).
See also 20 C.F.R. §§
“While a ‘not severe’
impairment(s) standing alone may not significantly limit an
individual’s ability to do basic work activities, it may – when
considered with limitations or restrictions due to other
impairments – be critical to the outcome of a claim.”
96-8p at *5.
S.S.R.
Accordingly, regardless of whether the ALJ were to
find Plaintiff’s right hand injury to be severe, he still must
consider what impact it may have on Plaintiff’s RFC.
As noted,
there is evidence in the record that potentially conflicts with
the ALJ’s finding that Plaintiff’s right hand causes him no
functional limitations that the ALJ has not addressed.
The Court takes no position as to what functional
limitations may need to be included in the RFC to account for
Plaintiff’s right hand injury.
Rather, it is the need for
further discussion of all of the evidence pertaining to this
condition that warrants remand in this case.5
V.
Conclusion
In short, the record does not permit the Court to determine
whether the findings of the ALJ regarding Plaintiff’s right hand
injury and its impact on Plaintiff’s RFC are supported by
5
On remand, the ALJ should also consider what impact, if
any, this evidence has on Plaintiff’s credibility in regard to
his subjective complaints regarding his right hand.
14
substantial evidence, and, accordingly, the Court finds that
substantial evidence does not support the ALJ’s decision in this
case.
The Court hereby remands this case to the Commissioner
for reconsideration consistent with this Order.
s/Alan N. Bloch
United States District Judge
ecf:
Counsel of record
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