Butler v. Astrue

Filing 17

ORDER granting 9 Motion for Summary Judgment; granting 9 Motion to Remand; denying 11 Motion for Summary Judgment; adopting 14 Report and Recommendations. Signed by District Judge Michael F. Urbanski on 5/31/13. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

FLOYD BUTLER,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY
Defendant.

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Civil Action No.: 5:12cv022

By: Hon. Michael F. Urbanski
United States District Judge

ORDER
This social security disability appeal is before the court for review of the Report and
Recommendation issued in this case by the magistrate judge on January 24, 2013, in which it is
recommended that this matter be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for
further consideration. The Commissioner has filed an objection to the Report and
Recommendation pursuant to Federal Rule of Civil Procedure 72(b).
The court has reviewed the magistrate judge’s report, the objections to the report, and the
pertinent portions of the administrative record and, in so doing, made a de novo determination of
those portions of the report to which the Commissioner objected. The court finds that the
magistrate judge was correct in concluding that the ALJ’s determination of the Butler’s residual
functional capacity (“RFC”) is not supported by substantial evidence in the record. First, as
noted by the magistrate judge, it appears that the ALJ did not account for and indeed, misquoted,
probative exhibits in the medical record. Second, the ALJ improperly afforded greater weight to
a non-treating, non-examining consultative examiner’s opinion, an opinion that, because of its
age, does not reflect more recent medical evidence.

As a result, there are two aspects of Butler’s RFC that are called into question. First, the
RFC does not contain a restriction requiring a cane but the objective medical evidence reveals
that claimant requires a cane to walk. Despite his use of a cane, the ALJ found that Butler could
perform a modified range of light work, including standing for two out of eight hours. Second,
while Dr. Stevens and Dr. Milligan each indicate that Butler suffers bilateral manual dexterity
limitations, neither the RFC nor the hypothetical question posed to the vocational expert included
any restrictions on his manual dexterity. As such, this case must be remanded for consideration
of the entirety of Dr. Stevens’ and Dr. Milligan’s opinions and a RFC determination consistent
with the entire medical record.
Accordingly, it is therefore ORDERED and ADJUDGED that the Commissioner’s
motion for summary judgment (Dkt. No. 11) is DENIED, Butler’s motion for summary
judgment (Dkt. No. 9) is GRANTED, and the report and recommendation (Dkt. No. 14) is
ADOPTED in its entirety, this case will be REMANDED to the Commissioner for further
consideration consistent herewith pursuant to sentence four of 42 U.S.C. § 405(g), and this
matter is STRICKEN from the active docket of the court.
IT IS SO ORDERED.
The Clerk is directed to send a certified copy of this Order to all counsel of record.
Entered: May 31, 2013

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge