Russo v. Berryhill
Filing
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ORDER granting 13 Motion to Reverse, Modify or Remand Decision of the Commissioner; denying 14 Motion to Affirm the Decision of the Commissioner- So Ordered by District Judge John J. McConnell, Jr. on 4/24/2018. (Urizandi, Nisshy)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
HUMBERT J. RUSSO,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner,
Social Security Administration,
Defendant.
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C.A. No. 17·515-JJM·PAS
ORDER
Plaintiff Humberto J. Russo is 64 years old and suffers from chronic pain
because of severe degenerative disc disease. Previously, he had worked as a regional
sales representative and as a corporate manager in the jewelry industry. He applied
for Disability Insurance Benefits under Title II of the Social Security Act but was
denied and now appeals. The Administrative Law Judge ("ALJ") determined that
Mr. Russo was not disabled at Step Four-residual function capacity ("RFC").
Mr. Russo raises a singular point of error, which does not require extensive
recitation of the facts or much legal analysis.
Dr. Stephen G. McCloy, an occupational medicine physician, reviewed Mr.
Russo's entire medical record that spanned from 2012 through 2016. In September
2016, he conducted a complete physical examination of Mr. Russo. Dr. McCloy opined
that Mr. Russo's ability to stand, sit, walk, use his upper right extremities, and use
foot controls is very limited. He opined that Mr. Russo should only sometimes be
exposed to unprotected heights, moving machinery, noise, vibration, dust fumes, and
gas. Dr. McCloy concluded that Mr. Russo's need to pace often and move about during
the day would be barriers to regular employment. He also opined that Mr. Russo's
chronic pain was disabling and interfered with his concentration and ability to seek
and maintain work.
The ALJ decision ignores Dr. McCoy's opinion. There is no mention of it at all
in the ALJ's decision. 1 Ignoring the opinion was legal error and caused the ALJ's
decision to lack substantial evidence, making a remand necessary. Nguyen v. Chater,
172 F.3d 31, 35·36 (1st Cir. 1999). Because Dr. McCoy's opinion was based on the
entire record and was the only evidence in the record of RFC, "by disregarding the
only residual functional capacity evaluation in the record, the ALJ in effect has
substituted [her] own judgment for uncontroverted medical opinion. This [she] may
not do." Rosado v. Secretary of Health and Human Services, 807 F.2d 292, 293-94
(1st Cir. 1986).2
For these reasons, the Court holds that the ALJ's decision was not based on
substantial evidence because it failed to consider adequately and weigh Dr. McCloy's
expert medical opinion. The Court thus GRANTS Mr. Russo's Motion to Reverse
(ECF No. 13) and DENIES the Commissioner's Motion for an Order Mfirming the
1 The Commissioner concedes that the ALJ did not consider the medical
opinion of Dr. McCoy. ECF No. 14·1 at 6.
2 The Commissioner's argument that the ALJ could ignore Dr. McCoy's opinion
because it was belated is not well taken. Dr. McCoy examined Mr. Russo after his
last insured date. However, he reviewed Mr. Russo's entire medical and work record
starting before his date of last insured and then he offered his opinion about the
applicable period. This timing does not justify the ALJ ignoring his opinion.
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Decision. ECF No. 14. The Court remands this matter for reconsideration consistent
with this Order.
John J. McConnell, Jr.
United States District Judge
April24, 2018
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