Roy v. Commissioner of Social Security

Filing 9

OPINION AND ORDER granting 7 MOTION for Order Reversing the Decision of the Commissioner; denying 8 MOTION for Order Affirming the Decision of the Commissioner. This case is remanded to the ALJ for proceedings consistent with this Opinion and Order. Signed by Judge William K. Sessions III on 8/7/2019. (jam) (Main Document 9 replaced on 8/7/2019) (law).

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
KEITH R.,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of the Social
Security Administration
Defendant.

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Case No. 2:17-cv-226

OPINION AND ORDER
Plaintiff Keith R. brings this action pursuant to 42 U.S.C.
§ 405(g) for review of the Commissioner’s determination that he
is not disabled and not entitled to disability insurance benefits
(DIB).

Now before the Court are Plaintiff’s motion for judgment

reversing the decision of the Commissioner, and the
Commissioner’s motion for judgment affirming that decision.

For

the reasons set forth below, Plaintiff’s motion is granted, the
Commissioner’s motion is denied, and the case is remanded for
further proceedings.
Factual Background
I.

Procedural History
Mr. R. filed an application for DIB on December 28, 2015,

alleging disability as of December 14, 2013.

His application was

denied initially and upon reconsideration, and he requested an
administrative hearing.

The hearing was held on May 9, 2017

before Administrative Law Judge (ALJ) Joshua Menard.

Mr. R. was

represented by counsel and provided testimony by video from
Burlington, Vermont.

The ALJ was in Manchester, New Hampshire.

A Vocational Expert (VE) and medical expert also testified.
The ALJ issued a written decision on June 6, 2017,
concluding that Mr. R. was not disabled within the meaning of the
Social Security Act.

Mr. R. requested review by the Appeals

Council, and that request was denied.

He subsequently filed this

action.
II.

Personal and Medical History
Mr. R. was born in 1963 and served in the United States Army

for over 30 years, including active duty between 2006 and 2013.
He worked for IBM from 1984 through 1999, and for Bombardier for
several years.

During his service in the Army, Mr. R. piloted

Blackhawk helicopters.

In 2013 he was in a helicopter crash in

Baghdad, sustaining injuries to his head and cervical spine.
After his deployment, Mr. R. worked for the National Guard
full-time as an Operations Officer and Standardization Pilot.

He

was honorably discharged in 2014, and has since been diagnosed
with traumatic brain injury (TBI) and post-traumatic stress
disorder (PTSD).

Mr. R. testified that he is currently

considered permanently and totally disabled by the Veterans
Administration.

In May 2013, Mr. R. was screened by Carlos G.

Tun, M.D. for possible TBI and polytrauma.

Dr. Tun concluded

that Mr. R.’s reported history of injuries and symptoms were

2

consistent with TBI.

Dr. Tun recommended medication for Mr. R.’s

ongoing headaches, physical therapy for balance issues, and
mental health treatment.
On June 25, 2013, Mr. R. underwent C5-6 anterior cervical
discectomy, interbody fusion and anterior metallic plate and
screw fixation surgery with orthopedic surgeon Robert D. Monsey,
M.D.

In December 2013, after his condition failed to improve,

Mr. R. had a second surgery involving C5-6 anterior hardware
removal, discectomy at C4-5, and fusion with allograft and plate.
Mr. R. has been prescribed hydromorphone and tramadol for pain,
and has been provided treatment injections.

His pain management

is overseen by general practitioner Whitney Calkins, M.D.
When Mr. R. continued to report neck and arm pain after his
second surgery, he received additional physical therapy and
hydromorphone (Dilauded) for pain.

Other medicines prescribed by

Dr. Calkins included Ambien and Viibryd.

In August 2014, Mr. R.

reported to Dr. Calkins that his average pain level was a six out
of ten without medication, and a three out of ten with
medication.

In October 2014, he reported that his average pain

level was four out of ten.
In May 2015, Mr. R. informed Dr. Monsey of the Spine
Institute that he was continuing to have pain in his neck similar
to the pain he experienced prior to his two surgeries.

Dr.

Monsey concluded that Mr. R.’s pain level was unlikely to

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improve.

As of October 2015, Mr. R. was suffering from bilateral

trochanteric bursitis.

In July 2016, he was treated with

injections.
Between January 2014 and December 2015, Mr. R. owned and
operated a restaurant.

The restaurant had 26 employees.

Mr. R.

continued to take two tramadol and two Dilaudid during the
workday.

He complained to his physician that he could not carry

trays of dishes, and that his hands cramped when he drove.

Mr.

R. sold the business at the end of 2015.
Mental health notes from November 2015 indicate that Mr. R.
was experiencing intermittent panic triggered by concerns about
finances and the sale of the restaurant.

During the following

year he attended several counseling sessions.

By March 2016, Mr.

Mr. R.’s treating psychologist, Laura Gibson, Ph.D., noted that
Mr. R. had improved energy, concentration, mood and sleep.
In February 2016, Disability Determination Services
psychologist Edward Hurley, Ph.D., reviewed Mr. R.’s records and
concluded that he retained the concentration, persistence, and
pace to perform two to four-step tasks for two hours over an
eight hour period.

Dr. Hurley also concluded that Mr. R. was

moderately limited in his ability to complete a work day.
On March 29, 2016, Mr. R. was examined by Alan Lilly, M.D.
Mr. R. informed Dr. Lilly that prior to his two surgeries he had
been suffering from neck pain and pain both shoulders, with pain

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radiating down his arms and into his fingers.

These issues

resulted in weakness of his upper extremities and into his hands.
Mr. R. reported that the surgeries had not provided significant
relief, and that he was unable to engage in household activities
such as using a hammer, or recreational pursuits such as golf or
skiing.

Even driving was at times problematic.

Mr. R. also

reported leg pain, resulting in difficulty walking more than one
block before feeling fatigued.

Dr. Lilly observed that at times

when describing his problems, Mr. R. became weepy.
Dr. Lilly’s physical examination revealed mild weakness in
Mr. R.’s upper extremities, weakness in the fingers, and mild
weakness in grip strength bilaterally.
getting his arms above 90 degrees.

Mr. R. had difficulty

His lower extremities, aside

from mild trochanteric bursitis, where within normal limits.

His

gait was also within normal limits, and he was able to stand up
out of a chair without evidence of weakness.

Mr. R. emphasized

to Dr. Lilly the psychological effects of the helicopter crash,
and noted that therapy had been very helpful.
In May 2016, Mr. R. suffered four seizures.

There is no

record evidence of a diagnosis or treatment for the seizures.
In December 2016, Mr. R. reported having worked for UPS for
three weeks loading trucks.

He felt that the work exacerbated

his PTSD symptoms.
In February 2017, psychologist Pamela Guiduli Nash, Psy. D.,

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met with Mr. R. at her office.

Dr. Nash noticed that Mr. R. was

hyper vigilant, as upon entering her office he paid special
attention to the available exits and made note of things outside
the window.

When a garbage truck outside the office made a loud

noise, Mr. R. flushed in the face, clenched his hands, and winced
in apparent pain.

When questioned about his life, he again

clenched his fists and pushed them into the sofa.

At some points

in the meeting Mr. R. appeared to be trying to control rage,
while at other times he cried.
intermittent.

Eye contact with Dr. Nash was

Dr. Nash found that Mr. R.’s answers were

occasionally resistant or defensive, and that his thought process
was extremely negative.

Dr. Nash also conducted on objective

test, the Folstein Mini Mental Status Exam (MMSE).

Mr. R.’s

performance on the test indicated that he could not perform
memory tasks.
Dr. Nash concluded that a diagnosis of TBI would be
appropriate, and that Mr. R. exhibited almost all of the symptoms
of PTSD.

In her written report, she stated that Mr. R. had one

of the worst cases of PTSD she had ever seen.

She also found

that Mr. R. had significant functional impairment socially,
occupationally, and emotionally.

Dr. Nash opined that, in

addition to PTSD, Mr. R. fit the full diagnosis for Major
Depressive Disorder, and that he also suffered from Adjustment
Disorder, With Anxiety.

She found no evidence of substance

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abuse.
Dr. Nash concluded that depending upon the environment, Mr.
R. could have difficulty focusing, and that pain issues combined
with PTSD could impair his ability to make judgments.

Mr. R.’s

significant irritability led Dr. Nash to conclude that he would
have trouble interacting with others on a sustained basis.

She

further suggested assigning a payee to help Mr. R. manage his
finances.
In January 2017, treating psychologist Dr. Gibson wrote a
letter summarizing her opinions of Mr. R..

Dr. Gibson provided

therapy beginning in February 2013, and had met with Mr. R. over
70 times since then.

In treatment with Dr. Gibson, Mr. R. had

spoken about his professional experiences, including those as a
restaurant owner.

He informed Dr. Gibson that he found the

ownership experience overwhelming, and had made errors such as
firing his best waitress and mismanaging finances.

Mr. R. also

had trouble with simple tasks such as operating the cash
register, despite years of computer experience.
Dr. Gibson’s letter noted that Mr. R. was continuing to
experience significant levels of anxiety and PTSD despite almost
three years of focused treatment.

In Dr. Gibson’s clinical

opinion, it was more likely than not that Mr. R.’s mental health
symptoms would interfere with his ability to work in the
foreseeable future due to interference with attention,

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concentration, interpersonal relationships, and ability to cope
effectively with stress.
Mr. R. maintains contact with his ex-wife, with whom he
shared custody of their two children since the couple’s divorce
in 2005.

He also maintains contact with his mother and brothers.

III. Hearing Testimony
A.

Mr. R.’s Testimony

At the hearing on May 9, 2017, Mr. R. explained that he
began flying helicopters in 1982, and was an instructor pilot for
approximately 25 years.
heavy combat.

He deployed overseas three times and saw

He attributes his PTSD, at least in part, to his

experiences in combat as a med-evac pilot.

Mr. R. has not flown

a helicopter since late 2013.
Mr. R. testified that has trouble concentrating, and with
performing simple tasks such as paying bills or following the
plot of a movie.

Sometimes he is startled by sounds,

particularly those that resemble an explosion or gunshot.

He

reportedly suffers from permanent, untreatable tinnitus as a
result of his time in helicopters and in combat.
Mr. R. described himself as super vigilant, meaning that he
tenses up and becomes acutely aware of his surroundings.

While

he used to engage in social activities, he has lost interest in
being social.

He has very few friends, and finds it difficult to

be around people.

He sometimes suffers from panic attacks as a
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result of being in public or stressful situations.

Mr. R. also

testified that since the helicopter accident, in which he
suffered nerve damage, he has had trouble executing motor skills
with his hands.
Although he owned a restaurant, he describes himself as
having been a glorified host.

The restaurant had accountants,

two chefs, and a general manager to guide daily operations.

Mr.

R. testified that his role included signing checks, and that he
did his best to ensure that things were operating properly.
However, it was the general manager who was responsible for day
to day operations and personnel management.

While owning the

restaurant, Mr. R. was reportedly irritable with his employees,
possibly because of his PTSD.

He testified that medication

currently helps him control his anger, but only somewhat.

Mr. R.

sold the restaurant because it was not financially successful and
because he found ownership overwhelming.
Mr. R. explained that as a result of his TBI, he experiences
periodic and debilitating headaches.

As a result of his two neck

surgeries, he suffers pain down both arms and numbness and
tingling in the tips of his fingers.

Simple motor skills such as

buttoning a shirt are very difficult, and he drops things
frequently.

He also suffers from pain when he moves his head,

with a pain level between seven and eight out of ten.

The VA has

provided him with medication for pain, but the medication makes

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him extremely drowsy.
Mr. R. has applied for work in both the public and private
sectors.

He was offered a job as a baggage handler, but did not

accept it because he thought he was applying to be a ticket
handler.

He also applied to be a project manager with the State

of Vermont Department of Safety, but was not offered the job.
B.

The Vocational Expert’s Testimony

A Vocational Expert testified at the hearing.

The ALJ asked

the VE to consider a hypothetical person of Mr. R.’s age,
education level, and job history.

That person would be limited

to occasional overhead reaching, occasional ability to use
ladders and scaffolds, occasional ability to crawl, and the
ability to handle things frequently with both left and right
hands.

With respect to environmental limitations, the ALJ asked

the VE to assume a moderate noise limitation or quiet noise
environment only.

As to psychological limitations, the

hypothetical worker would have no more than occasional
interaction with coworkers and the general public.
Based upon this hypothetical, the VE concluded that the
individual could not perform any of Mr. R.’s past work.

With

respect to other available work, the VE concluded that the
individual could perform light cleaning, work as a collator
operator at a light level, and as a mail sorter at a light level.
When Mr. R.’s attorney asked the VE to assume that the worker

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could only occasionally use his right and left hands because of
numbness and tingling in the fingertips, the VE testified that
none of the three jobs (cleaning, collator operator, and mail
sorter) could be performed.
The ALJ also asked the VE to consider an individual who must
be off task at least 15% of the day with issues of chronic pain.
The VE testified that no jobs could be sustained with that level
of off-task behavior on a regular basis.

When the ALJ removed

the 15% off-task limitation and replaced it with two missed days
of work each month, again due to issues of chronic pain, the VE
testified that such a rate of absenteeism would not be tolerated.
When the ALJ proposed a hypothetical based on a less than
sedentary exertional level generally defined as the inability to
complete an eight hour work day, the VE confirmed that in such a
situation there would be no available competitive work.
C.

Dr. Strahl’s Testimony

Psychiatrist Nathan Strahl, M.D., Ph.D., testified as a
medical expert.

Dr. Strahl had reviewed Mr. R.’s medical records

and found four primary diagnoses related to mental impairments:
depressive disorder, PTSD, generalized anxiety disorder, and
substance abuse of alcohol and marijuana.

Dr. Strahl testified

that Mr. R. is capable of simple, routine, and repetitive tasks.
He based his opinion in part on Mr. R.’s management and sale of
the restaurant in 2014 and 2015.

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That experience, Dr. Strahl

opined, suggested an ability to also handle complex or detailed
tasks.

Dr. Strahl further opined that Mr. R. could work

adequately with supervisors and could tolerate limited to
occasional interaction with coworkers.

Because Mr. R. startles

easily, Dr. Strahl concluded that he would need a quiet work
environment.
IV.

The ALJ’s Decision
The ALJ used a five-step sequential process to evaluate Mr.

R.’s disability claim.
81 (2d Cir. 2004).

See Butts v. Barnhart, 388 F.3d 377, 380-

The first step requires the ALJ to determine

whether the claimant is presently engaging in “substantial
gainful activity.”

20 C.F.R. §§ 404.1520(b), 416.920(b).

If the

claimant is not so engaged, step two requires the ALJ to
determine whether the claimant has a “severe impairment.”
C.F.R. §§ 404.1520(c), 416.920(c).

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If the ALJ finds that the

claimant has a severe impairment, the third step requires the ALJ
to make a determination as to whether that impairment “meets or
equals” an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“the Listings”).
416.920(d).

20 C.F.R. §§ 404.1520(d),

The claimant is presumptively disabled if his or her

impairment meets or equals a listed impairment.

Ferraris v.

Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is
required to determine the claimant’s residual functional capacity

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(RFC), which means the most the claimant can still do despite his
or her mental and physical limitations based on all the relevant
medical and other evidence in the record.

20 C.F.R. §§

404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1).

The

fourth step requires the ALJ to consider whether the claimant’s
RFC precludes the performance of his or her past relevant work.
20 C.F.R. §§ 404.1520(f), 416.920(f).

Finally, at the fifth

step, the ALJ determines whether the claimant can do “any other
work.”

20 C.F.R. §§ 404.1520(g), 416.920(g).

The claimant bears

the burden of proving his or her case at steps one through four,
Butts, 388 F.3d at 383; and at step five, there is a “limited
burden shift to the Commissioner” to “show that there is work in
the national economy that the claimant can do,” Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the
burden shift to the Commissioner at step five is limited, and the
Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
In this case, the ALJ first determined that Mr. R. has
worked since his alleged disability date of December 2013, but
that his work activity did not rise to the level of substantial
gainful activity.

At step two, the ALJ found the following

severe impairments: degenerative disc disease; spine disorder;
PTSD; depression; anxiety; and substance abuse.

The ALJ found

that Mr. R.’s TBI was a non-severe impairment, but considered the

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TBI symptoms when determining Residual Functioning Capacity
(RFC).

At step three, the ALJ found that none of Mr. R.’s

impairments, alone or in combination, met or medically equaled a
listed impairment.
The ALJ based this conclusion in large part upon the
opinions of the testifying medical expert, Dr. Strahl.
also gave great weight to the opinions of Dr. Lilly.

The ALJ

The ALJ

gave Dr. Nash’s opinion limited weight, finding no indication
that she had reviewed Mr. R.’s medical records.

He also gave

little weight to the opinion of Mr. R.’s treating psychologist,
Dr. Gibson.
Next, the ALJ determined that Mr. R. had the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b), except that he
could only lift and/or carry and push/pull ten pounds frequently
and 20 pounds occasionally; sit for up to six hours in an eighthour workday; and stand and/or walk up to six hours in an eighthour workday.

The ALJ further found that Mr. R. can occasionally

reach overhead bilaterally, and can handle items frequently in
his left and right hands.

The ALJ concluded that Mr. R. can

occasionally climb ladders, ropes, or scaffolds; can crawl; can
be exposed to a moderate to quiet noise environment; and can
occasionally interact with the public and co-workers.
Given this RFC, the ALJ found that Mr. R. could not perform
his past relevant work as a helicopter pilot.

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Based upon the

testimony of the VE, the ALJ also found that Mr. R. could perform
jobs such as light cleaning, light collator operator, and light
mail sorter, and was therefore not disabled.
Standard of Review
The Social Security Act defines the term “disability” 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 than 12 months.”

42 U.S.C. § 423(d)(1)(A).

A person will

be found disabled only if it is determined that her “impairments
are of such severity that [s]he is not only unable to do [her]
previous work[,] but cannot, considering [her] age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.”

42 U.S.C. §

423(d)(2)(A).
In considering a Commissioner’s disability decision, the
court “review[s] the administrative record de novo to determine
whether there is substantial evidence supporting the . . .
decision and whether the Commissioner applied the correct legal
standard.”

Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)

(citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42
U.S.C. § 405(g).

In its deliberations, a court should bear in

mind that the Social Security Act is “a remedial statute to be

15

broadly construed and liberally applied.”

Dousewicz v. Harris,

646 F.2d 771, 773 (2d Cir. 1981).
Discussion
The ALJ relied almost exclusively upon the conclusions of
non-examining expert Dr. Strahl.

Mr. R. submits that such

reliance upon Dr. Strahl was misplaced as his conclusions were
inconsistent with other medical professionals, both treating and
non-treating.

Mr. R. also notes that Dr. Strahl based his

opinion upon Mr. R.’s ownership of a restaurant, notwithstanding
Mr. R.’s inability to manage the restaurant effectively or
profitably.

Finally, Mr. R. submits that Dr. Strahl

mischaracterized Dr. Nash’s opinions.

The Court generally agrees

with each of these three points, and finds that substantial
evidence does not support the ALJ’s conclusions.
Dr. Strahl’s opinions, based solely upon a review of medical
records, were not consistent with providers who either met with
or treated Mr. R. in the years prior to the hearing.

For

example, Dr. Gibson was Mr. R.’s treating psychologist for three
years.

Dr. Gibson opined, based upon over 70 meetings with Mr.

R., that Mr. R. was unlikely to be able to work given his
significant levels of anxiety and PTSD.1
1

The ALJ gave the

Although not specifically raised in the briefing, the
Court notes the possible application of the “treating physician
rule” to Dr. Gibson’s opinion. A “treating” physician is a
claimant’s “own physician, psychologist, or other acceptable
medical source who provides [a claimant] . . . with medical
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opinion of Dr. Gibson little weight.
The ALJ downgraded the impact of Dr. Gibson’s opinions
because (1) there was no indication that she had reviewed the
entire medical record as of the hearing date, and (2) she did not
account for Mr. R.’s ownership of a restaurant.

Given Dr.

Gibson’s lengthy clinical relationship with Mr. R., her failure
to review a few months of medical records should not have
factored so significantly.

And as discussed above, Mr. R.’s

experience with restaurant ownership was overwhelming and largely
a failure.

He explained to Dr. Gibson during therapy sessions

that he had mismanaged the business’s finances, had fired his
best waitress, and was unable to learn how to use the cash
register despite years of computer experience.

In his testimony

treatment or evaluation and who has, or has had, an ongoing
treatment relationship with [the claimant].” Brickhouse v.
Astrue, 331 F. App’x. 875, 877 (2d Cir. 2009) (citing C.F.R. §
404.1502). Social Security Association regulations give the
opinions of treating physicians “controlling weight” so long as
those opinions are “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and [are] not
inconsistent with the other substantial evidence in . . . [the]
record.” 20 C.F.R. § 416.927(c)(2); see also Lesterhuis v.
Colvin, 805 F.3d 83, 88 (2d Cir. 2015). “Even if the treating
physician’s opinion is contradicted by other substantial
evidence, and so is not controlling, it may still be entitled to
significant weight ‘because the treating source is inherently
more familiar with a claimant’s medical condition than are other
sources.’” Tankisi v. Comm’r of Social Sec., 521 F. App’x 29, 33
(2d Cir. 2013) (quoting Schisler v. Bowen, 851 F.2d 43, 47 (2d
Cir. 1988)). The Court highlights the treating physician rule so
that upon remand the rule, specifically with respect to Dr.
Gibson, can be fully considered.
17

before the ALJ, Mr. R. explained that he was sometimes volatile
with his employees and was essentially a glorified host.
The ALJ failed to properly address Dr. Gibson’s treatment
relationship with Mr. R., the fact that her opinions were
consistent with those of Dr. Nash, or her expertise as a
psychologist.

When compared to a review of documents by Dr.

Strahl, Dr. Gibson’s ongoing relationship with Mr. R. was more
likely to generate an accurate understanding of Mr. R.’s
capabilities.

There is no dispute as to Dr. Gibson’s

professional qualifications, and the Court finds that the ALJ
failed to give her opinions appropriate weight.
The ALJ also failed to give Dr. Nash’s opinions appropriate
weight.

The ALJ discounted those opinions in part because Dr.

Nash only met with Mr. R. once.

However, as Mr. R. notes in his

briefing, the ALJ postponed the original hearing date so that Dr.
Nash could conduct a consultative examination.

If the ALJ felt

that the consultation was sufficiently significant to warrant a
delay, his subsequent discounting of Dr. Nash’s report on the
basis of that single consultation was, at best, inconsistent.
The ALJ also criticized Dr. Nash’s opinions as based largely
upon Mr. R.’s subjective complaints.

Dr. Nash’s report, however,

included observations of Mr. R.’s mannerisms, including hyper
vigilance, that were separate from his personal narrative.
Nash also administered the MMSE exam, which indicated an

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Dr.

inability to complete memory-related tasks.
Dr. Strahl’s conclusions, including his finding that Mr. R.
could likely perform detailed and complex tasks due to his
ownership of a restaurant, are largely unsupported.

Mr. R.’s

tenure as a restaurant owner was not successful, as Mr. R. was
unable to manage not only the complexities of financial and
personnel management, but also the simpler tasks of operating the
cash register or carrying trays.
In addition to clear mental health issues, Mr. R. is
physically impaired.

Dr. Lilly, whose opinions the ALJ gave

significant weight, found mild weakness in Mr. R.’s upper
extremities, weakness in his fingers, and mild weakness in his
grip strength in both hands.

Mr. R. has consistently reported

numbness and tingling his hands and fingers, as well as
difficulty holding or manipulating objects with his hands since
his helicopter crash.

Mr. R. continues to suffer from pain in

his neck and shoulders, and while pain medication is helpful in
reducing but not eliminating that pain, the medication also makes
him drowsy.
Despite these impairments, both mental and physical, the ALJ
asked the VE to imagine an individual who could occasionally
reach over his head, handle things frequently with both his left
and right hands, tolerate an environment with only a moderate
noise limitation, and interact with coworkers and the general

19

public on occasion.

When it was suggested to the VE that the

hypothetical person would be off task 15% of the day because of
chronic pain, or might miss two days of work each month, the VE
testified that no work would be available.

Mr. R.’s medical

records plainly support a finding of such chronic pain.

The VE

also opined that if that person could only occasionally use his
hands because of numbness and tingling in the fingertips, none of
the identified jobs could be performed.

Numbness, tingling, and

weakness are also plainly supported by the record.
Mr. R.’s final argument is that there is an inconsistency
between the VE’s testimony and the job definitions set forth in
the Dictionary of Occupational Titles (DOT).

Mr. R. submits that

while the VE listed three possible occupations, the DOT states
that each such occupation requires frequent reaching.

The

hypothetical presented to the VE specified limited overhead
reaching.

The Commissioner responds that the DOT is silent as to

overhead reaching, and that none of the listed occupations
necessarily involve overhead reaching.

As each of the three

occupations listed by the VE may involve overhead reaching, this
question may be explored upon remand if further VE testimony is
necessary and provided.
In sum, the ALJ failed to give sufficient weight to the
opinions of Dr. Gibson and Dr. Nash, relied too heavily upon the
opinions of Dr. Strahl, and the initial hypothetical presented to

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the VE failed to adequately consider the entire medical record.
Consequently, the Court finds that substantial evidence does not
support the ALJ’s conclusion.

This matter must therefore be

remanded for proper consideration of the evidence.
Conclusion
For the reasons stated above, the motion for an order
reversing the Commissioner’s decision (ECF No. 7) is granted, the
motion for an order affirming the decision of the commissioner
(ECF No. 8) is denied, and this case is remanded to the ALJ for
proceedings consistent with this Opinion and Order.
DATED at Burlington, in the District of Vermont, this 7th
day of August, 2019.

/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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