Hosey v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION AND ORDER ADOPTING 13 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE. Granting in part and denying in part 10 Motion for Summary Judgment filed by Ramona L. Hosey; denying 11 Motion for Summary Judgment filed b y Commissioner of Social Security. The claim is REMANDED to the Commissioner for consideration pursuant to the recommendations contained in the magistrate judge's Report and Recommendation and this Order. This civil action is DISMISSED WITH PREJUDICE and RETIRED from the docket of this Court. The Clerk of Court is directed to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/29/2013. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RAMONA L. HOSEY,
Plaintiff,
v.

CIVIL ACTION NO. 1:11CV207
(Judge Keeley)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Pursuant to 28 U.S.C. §636(b)(1)(B), Fed. R. Civ. P. 72(b),
and L.R. Civ. P. 4.01(d), on December 17, 2011, the Court referred
this Social Security action to United States Magistrate John S.
Kaull with directions to submit proposed findings of fact and a
recommendation for disposition.
On August 31, 2012, Magistrate Judge Kaull filed his Report
and

Recommendation

(“R&R”),

which

directed

the

parties,

in

accordance with 28 U.S.C. § 636(b)(1) and Rule 6(e), Fed. R. Civ.
P., to file any written objections with the Clerk of Court within
fourteen (14) days after being served with a copy of the R&R. On
September 13, 2012, the plaintiff, Ramona L. Hosey (“Hosey”), by
her attorneys, Joyce H. Morton and Montie VanNostrand, filed
objections to the R&R. (Dkt. No. 14). On September 14, 2012, the
Commissioner also objected to the R&R. (Dkt. No. 15).

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I.

PROCEDURAL BACKGROUND

On October 2, 2007, Hosey filed an application for Disability
Insurance Benefits (“DIB”), alleging disability since April 1,
2005, due to arthritis, seizures, asthma, osteoporosis, stomach
acid reflux, hernia, and depression. (R. 232, 237). On January 24,
2008, the Commissioner denied her application initially, and then
on reconsideration, on April 9, 2008. (R. 16).
At a hearing on June 25, 2009, at which Hosey appeared without
counsel and without medical records (R. 42), an Administrative Law
Judge (“ALJ”) advised her of her right to counsel, provided her
with forms to obtain her medical records, and continued the hearing
until

November 18, 2009. (R. 50-51). At the second hearing, Hosey

appeared by counsel and testified. An impartial Vocational Expert
(“VE”) also testified. (R. 52).
Based

on

a

review

of

her

record

of

earnings,

the

ALJ

determined that Hosey had a sufficient number of quarters to remain
insured through December 31, 2008, her date last insured (“DLI”).1
(R. 16). On January 20, 2010, the ALJ determined that Hosey “was

11

Because Hosey’s date last insured (“DLI”) is December 31,
2008 (R. 196), she must prove she was disabled on or before that
date. Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005).
2

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
not under a disability within the meaning of the Social Security
Act from April 1, 2005 through her DLI.” (R.16).
The

Appeals

Council

denied

her

request

for

review

on

November 10, 2011 (R. 1), thus making the ALJ’s decision the final
decision of the Commissioner. (R. 1). On December 27, 2011, Hosey
timely filed this civil action seeking judicial review of the final
decision. (Dkt. No. 1).
II.

PLAINTIFF'S BACKGROUND

On her alleged onset date, April 1, 2005, Hosey was forty-nine
(49) years old and was considered a younger individual (age 18-49).
On December 31, 2008, her DLI, Hosey was fifty-two (52) years old
and was considered an individual closely approaching advanced age,
(20 CFR 404.1563). (R. 32, 212). She has a high-school education
and a secretarial diploma from West Virginia Career College. (R.
241). Her past relevant work history includes employment as a
salesperson, sewing machine operator, press machine operator,
census clerk, test clerk, convenience store clerk, stock clerk, and
cashier. (R. 92-93). The record reflects that Hosey did not work
outside the home from 1980 through 1993, worked in 1994 and 1995,
did not work in 1996 and 1997, worked in 2000, did not work in

3

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
2001, worked in 2002, 2003, 2004 and 2005, and has not worked since
2005. (R. 210).
III.
Utilizing
prescribed

in

ADMINISTRATIVE FINDINGS

the

five-step

sequential

the

Commissioner’s

evaluation

regulations

at

20

process
C.F.R.

§§ 404.1520, the ALJ made the following findings:
1.

Hosey last met the insured status requirements of
the Social Security Act on December 31, 2008 (R.
18);

2.

Hosey did not engage in substantial gainful
activity during the period from her alleged onset
date of April 1, 2005, through her date last
insured of December 31, 2008 (20 CFR 404.1571 et
seq.) (R. 18);

3.

Through the date last insured, Hosey had the
following severe impairments: degenerative disc
disease of the lumbar spine, including mild
osteoporosis; tendonitis of the right shoulder;
seizure disorder unspecified and controlled; Major
Depressive Disorder; and Anxiety Disorder not
otherwise specified (20 CFR 404.1520(c)( (R. 18);

4.

Through the date last insured, Hosey did not have
an impairment or combination of impairments that
met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525 and 404.1526) (R.
19);

5.

Through the date last insured, Hosey retained the
residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) with the exception
of the opportunity to change positions briefly as
4

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
needed after sitting for 30 minutes or standing for
20 to 30 minutes, was unable to use her right upper
extremity for work above the shoulder level, was
unable to climb ladders, ropes or scaffolds, or
crawl and could only occasionally climb ramps and
stairs, balance, stoop, kneel, and crouch, needed
to avoid concentrated exposure to excessive cold,
dampness, dust and fumes, was unable to work in or
around
crowds,
was
limited
to
occasional
interaction with the public of a superficial
nature, and was unable to perform work requiring
sustained immediate memory or fast production rate
pace (R. 22);
6.

Through the date last insured, Hosey was unable to
perform any past relevant work (20 CFR 404.1565)
(R. 32);

7.

Hosey was born on February 25, 1956, and was 49
years old, which is defined as a younger individual
age 18-49, at the time of her alleged onset date.
During the pendency of the case, Hosey changed age
category to closely approaching advanced age, and
at her date last insured, was in the category of
closely approaching advanced age (20 CFR 404.1563)
(R. 32);

8.

Hosey has at least a high school education and is
able to communicate in English (20 CFR 404.1564)
(R. 42);

9.

Transferability of job skills is not material to
the determination of disability because using the
Medical-Vocational Rules as a framework supports a
finding that Hosey is “not disabled,” whether or
not she has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2) (R.
32);

10.

Through the date last insured, considering Hosey’s
age, education, work experience, and residual
5

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
functional capacity, jobs existed in significant
numbers in the national economy that she could have
performed (20 CFR 404.1569 and 404.1569(a)) (R.
32); and
11.

Hosey was not under a disability, as defined in the
Social Security Act, at any time from April 1,
2005, the alleged onset date, through December 31,
2008, the date last insured (20 CFR 404.1520(g))
(R. 33).

(R. 16-33)
IV. MEDICAL EVIDENCE
The Court incorporates the magistrate judge’s extensive review
of the medical records contained in his R&R. (R&R 2-35).
V. LEGAL ANALYSIS
A. Scope of Review
The scope of review of an administrative finding of no
disability is limited to determining whether “the findings of the
Secretary are supported by substantial evidence and whether the
correct law was applied.”
(4th Cir. 1990). In

Hays v. Sullivan, 907 F.2d 1453, 1456

Smith v. Schweiker, 795 F.2d 343, 345 (4th

Cir.1986), the Fourth Circuit described the scope of review as
“specific and narrow.

We do not conduct a de novo review of the

evidence, and the Secretary’s finding of non-disability is to be
upheld, even if the court disagrees, so long as it is supported by
substantial evidence.” Id. Substantial evidence is “such relevant
6

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
evidence

as

a

reasonable

mind

might

accept

to

support

a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Elaborating on this definition, the Fourth Circuit has
stated that substantial evidence “consists of more than a mere
scintilla

of

evidence

but

may

be

somewhat

less

than

a

preponderance. If there is evidence to justify a refusal to direct
a

verdict

where

the

case

‘substantial evidence.’”

is

before

a

jury,

then

there

is

Hays, 907 F.2d at 1456 (quoting Laws v.

Celebrezze, 368 F.2d 640, 642 (4th Cir. 1968)). In Coffman v.
Bowen, 829 F.2d 514, 517 (4th Cir. 1987), the Fourth Circuit
recognized that “[a] factual finding by the ALJ is not binding if
it was reached by means of an improper standard or misapplication
of the law.” 829 F.2d 514, 517 (4th Cir. 1987).
B.

Date Last Insured

As a threshold matter, it is undisputed that Hosey’s date last
insured (“DLI”) is December 31, 2008. (R. 16) The relevant time
frame for her claim therefore is April 1, 2005, the alleged onset
date, through December 31, 2008, her DLI. Accordingly, in order to
be entitled to a finding of disability, Hosey must establish a
disability on or before her DLI.
7

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
C. Objections to the R&R
Hosey objects to the magistrate judge’s recommendation that
there is substantial evidence in the record to support the ALJ’s
decision that the degenerative arthritis of her hands and wrists
and

her

status

post

carpal

tunnel

syndrome

were

not

severe

impairments. She contends that the ALJ failed to consider her
limitations in bilateral reaching and her limitation in handling
and fingering objects. She also argues that all of the jobs
identified by the VE require continuous or frequent reaching and
continuous or frequent handling, grasping, gripping or fingering.
She argues that, even though she can use her hands and wrists
during daily activities, her impairments affect her ability to
grasp and manipulate objects, and that even occasional or frequent
use of her hands while at work would “exacerbate and worsen these
pre-existing conditions,” making it unlikely that she would be able
to “sustain these repetitive functions on a daily basis at work.”
(Dkt. No. 15). She also argues that on remand the issues should not
be limited to the issue of reaching overhead.
The

Commissioner

objects

to

the

magistrate

judge’s

recommendation to remand this action. He argues that the record
supports the ALJ’s determination that Hosey did not have a severe
8

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
impairment or any functional limitations related to her left
shoulder,

and

that

the

findings

regarding

the

Dictionary

of

Occupational Titles (“DOT”) and the VE’s testimony related to
overhead reaching were not inconsistent. (Dkt. No. 14).
He

further

argues

that

the

magistrate

judge

based

his

recommendation to remand on evidence regarding a left shoulder
impairment

that

existed

prior

to

Hosey’s

alleged

date

of

disability, her own testimony regarding her symptoms, an improper
re-weighing of the medical evidence, and a conflict between the DOT
and the vocational expert’s testimony regarding overhead reaching.
(Dkt. No. 14).
The ALJ identified Hosey’s severe impairments as degenerative
disc disease of the lumbar spine, including mild osteoporosis,
tendonitis of the right shoulder, seizure disorder, unspecified and
controlled, major depressive disorder, and anxiety disorder. (R.
18). He also identified other impairments not considered severe
within the meaning of the Regulations as history of surgery for
carpal tunnel syndrome, chondromalacia of her knees, and GERD. (R.
18).

9

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
D.
1.

Review of the Evidence

Status Post Carpal Tunnel Syndrome and Degenerative
Arthritis

Although the ALJ determined that Hosey’s status post carpal
tunnel

syndrome

constituted

a

“severe”

impairment

within

the

meaning of the regulations, he concluded that neither it nor her
later

diagnosis

of

degenerative

arthritis

resulted

in

any

“continued work-related limitation of function of more than a
minimal degree.” (R. 18). At step two of the sequential evaluation,
Hosey bore the burden of producing proof that she had a severe
impairment. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Moreover,

as

the

magistrate

judge

noted

in

his

R&R,

a

mere

diagnosis of a condition is not enough to prove disability. There
must be a showing of related functional loss. See Gross v. Heckler,
785 F.2d 1163 (4th Cir. 1986). (R&R 40).
In his review of Hosey’s objections, the magistrate judge
considered the following evidence when determining the severity of
any functional work-related limitations Hosey might have as a
result

of

her

status

post

carpal

degenerative arthritis:

10

tunnel

syndrome

and

her

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
1.

An October 13, 1999 report from Dr. Bordonada indicating

that Hosey had surgery for release of carpal tunnel on her right
hand (R. 550);
2.

A December 7, 1999 report from Dr. Bordonada indicating

that Hosey had surgery for release of carpal tunnel on her left
hand (R. 541);
3.

A January 9, 2006 note from Dr. Stefanick, a neurologist,

indicating that Hosey had complained of numbness of the left hand
and noting a positive Tinel’s sign (R. 213);
4.

A February 19, 2006 note from Ronald Pearson, M.D.,

noting Hosey’s hands showed no clubbing or cyanosis, 2+ pulses
throughout all extremities and no edema (R. 528);
5.

A November 5, 2007 note from Dr. Khorshad, who

examined

Hosey on referral from the State agency, indicating a diagnosis of
degenerative arthritis of the hands but not carpal tunnel syndrome.
Significantly, his findings included that her fine manipulation was
intact and her grip strength was 4/5 (R. 364);
6.

A July 6, 2009 note from WVHR regarding an examination

conducted six months after her DLI that indicated Hosey had
reported “some pain and decreased strength in the right arm and
hand,”

a

normal

examination,

including
11

negative

Phalen’s

and

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Tinel’s signs, and a diagnosis of “status post carpal tunnel
surgery” (R. 577);
7.

An

October

1,

2010

report

from

Dr.

Mujheed

Rahman

indicating that Hosey complained of pain, numbness, and weakness of
both arms for about ten or twelve years. The examination revealed
symmetrical

strength

in

both

upper

and

lower

extremities,

unremarkable sensory exam, normal finger to nose test, normal gait
and positive Tinel’s and Phalen’s. He diagnosed bilateral carpal
tunnel syndrome and scheduled nerve conduction studies and an EMG.
Following receipt of normal test results, Dr. Rahman revised his
diagnosis, stating: “There is no electrodiagnostic evidence of
carpal tunnel syndrome or ulnar neuropathy or polyneuropathy or
cervical radiculopathy (R. 674);”
8.

A November 9, 2010 report from Dr. Rahman indicating that

Hosey complained of bilateral hand and wrist pain, weakness, and
inability to sew and hold a book when she read. He diagnosed
arthritis (R. 680);
9.

A

February

7,

2011

note

from

Elk

Memorial

Clinic

indicating that Hosey had reported hand pain and stated she thought
it was rheumatoid arthritis. She reported that her pinky finger and
next finger went numb, her knuckles ached, the pads at the base of
12

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
her thumbs and little finger throbbed and made sewing difficult
because it was “hard to hold the needle.” The physical exam
revealed “generalized osteoarthritic changes of the fingers and
wrists (R. 693);” and
10.

A May 23, 2011 office note from Elk Memorial Clinic

indicating no edema or tenderness on examination and no diagnosis
of any kind. Hosey was directed to start taking an iron supplement
and was to return if symptoms continued or failed to improve.
(R.695)
The record further reflects that, on January 8, 2008, State
reviewing physician Porfirio Pascasio, MD, completed a Physical
Residual Functional Capacity Assessment (“RFC”) indicating that
Hosey could occasionally lift and carry 20 pounds, frequently lift
and carry 10 pounds, could stand and/or walk about 6 hours in an 8hour workday, sit about 6 hours in an 8-hour workday, could never
climb ladders, ropes or scaffolds, could occasionally perform all
other postural limitations, should avoid concentrated exposure to
temperature extremes, fumes, odors, dust etc. and hazards, and had
no manipulative, visual, or communicative limitations. (R. 292).
Additionally,

on

April

9,

2008,

State

agency

reviewing

physician Fulvio Franyutti completed an RFC indicating that Hosey
13

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
could

lift

and

carry

20

pounds

occasionally

and

10

pounds

frequently, could stand and/or walk 6 hours in an 8-hour workday,
could

sit

6

hours

in

an

8-hour

workday,

could

never

climb

scaffolds, ropes, or ladders, could occasionally perform all other
posturals,

had

no

manipulative,

visual

or

communications

limitations, should avoid concentrated exposure to temperature
extremes, fumes, odors, dust etc., and hazards, but had no other
environmental limitations. (R. 413).
Significantly, the magistrate judge noted that Hosey’s 1999
surgeries had occurred several years before her alleged onset date
and, according to her earnings records (R. 209), she continued to
work regularly for several years after the surgeries. (R&R 19) The
record in fact establishes that Hosey had earnings in 2000, 2002,
2003, 2004 and 2005. (R. 196).
During

the

administrative

hearing,

Hosey

admitted

that,

following her carpal tunnel release surgeries, she had worked as a
store clerk for Skidmore Development and Turnpike Grocery, as a
census clerk, going door to door gathering information for the
Census

Bureau,

administering

and

as

an

interviewer

tests

to

potential

for

census

the

Census

employees

at

Bureau
various

locations. She stated that she quit working at Skidmore Development
14

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
because she could no longer deal with “nasty” people at the flea
market and bargain store, or help load the oil barrels. (R. 79-80).
In

Cauthen v. Secretary, 426 F.2d 891, 892 (4th Cir. 1970),

“[t]he evidence reveal[ed] that the eye problem is one of long
standing and that claimant has worked regularly for many years
affected to virtually the same extent as at present.”

Here, in

like manner, Hosey worked after her carpal tunnel surgeries and the
medical evidence reflects no significant deterioration in her
condition prior to her DLI.
Thus, substantial evidence supports the ALJ’s determination
that, even though Hosey’s status post carpal tunnel syndrome and
degenerative

arthritis

of

the

wrist

and

hands

were

severe

impairments, they did not result in any functional work-related
limitations.
2.

Limitation of restrictions to only overhead reaching

Hosey argues that the evidence of record establishes that her
limitations should not be restricted to only overhead reaching
related to her right arm. According to the Commissioner, however,
when the magistrate judge recommended remand for consideration of
a possible left shoulder impairment, he improperly relied on
evidence generated prior to Hosey’s alleged onset date, Hosey’s
15

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
testimony regarding her symptoms, and his own reweighing of the
medical evidence. (Dkt. No. 14).
The following evidence, however, establishes that the findings
regarding both of her shoulders were consistent and similar:
1.

A February 28, 2005 report from Dr. Snead, an orthopedic

surgeon, indicating that Hosey had reported having difficulty
getting

both

arms

over

her

head

and

behind

her

back.

On

examination, he noted that both shoulders demonstrated only 90
degrees of abduction, with pain getting both arms behind her back,
and a positive impingement sign in both of her shoulders (R. 301);
2.

A March 17, 2005 report from Dr. Snead indicating that

Hosey had received a series of shots in her shoulders and knees
that provided no relief (R. 435);
3.

A May 13, 2005 MRI of the left shoulder from BCMH

indicating

“mild

increased

signal

intensity

in

the

distal

supraspinatus tendon with subchondral cystic changes in the humeral
head. Findings are most consistent with chronic tendon degeneration
or partial under surface tear.

No evidence of full thickness or

complete tear (R. 283);”
4.

A May 13, 2005 MRI of the right

shoulder indicating

“Chronic tendon degeneration versus partial under surface tear of
16

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
the distal supraspinatus tendon.
complete tear.

No evidence of full thickness or

Findings similar to left shoulder.

No evidence of

acute abnormality or joint effusion (R. 283);”
5.
Hosey

had

A June 1, 2005 report from Dr. Snead indicating that
complained

of

ongoing

bilateral

shoulder

pain.

On

examination the right shoulder was the most painful one with
crepitation and grinding and 90 degrees abduction. He noted that
she had received four shots with no relief and recommended as “the
only solution an arthroscopic rotator cuff decompression of the
right shoulder (R. 300);
6.
Hosey

had

A July 19, 2005 report from Dr. Snead indicating that
undergone

arthroscopic

acromioplasty

on

her

right

shoulder. The preoperative diagnosis was rotator cuff tendinitis of
the right shoulder and a postoperative diagnosis of rotator cuff
tendinitis of the right shoulder (R. 299);
7.

A July 28, 2005 office note from Dr. Snead indicating

that Hosey had reported a lot of bilateral shoulder pain. Dr. Snead
demonstrated how Hosey should perform Codman’s exercises at home to
increase

the

motion

in

her

shoulder,

prescription for Darvocet (R. 431);

17

and

he

refilled

her

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
8.

An August 17, 2005 office note from Dr. Snead indicating

that Hosey had “ongoing bilateral shoulder pain.” Dr. Snead noted
that Hosey was doing better, had 160 degrees of abduction, had lost
some internal rotation but her pain was much better. He opined, “I
think she is going to be okay (R. 429);”
9.

A

September

15,

2005

office

note

from

Dr.

Piggott

indicating that Hosey had reported her shoulders were “still sore”
even with the exercises from Dr. Snead (R. 358);
10.

An October 13, 2005 progress note from Dr. Piggott

indicating that Hosey had reported both of her shoulders were very
sore, and that in the morning she couldn’t move because her
shoulders were very stiff (R. 357); and
11.

A November 5, 2007 report from Miraflor Khorshad, M.D.

documenting findings that both of Hosey’s rotators were “tight” and
both shoulder joints exhibited “limited range of motion,” and a
diagnosis of degenerative arthritis of both shoulders and hands.
(R. 361-64).
The ALJ considered the severity of Hosey’s right shoulder
impairment pursuant to section 1.02B of the listings. Listings 1.02
A and B both require:

18

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Major dysfunction of a joint(s) (due to any
cause): Characterized by gross 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 findings on
appropriate medically acceptable imaging of
joint space narrowing, bony destruction, or
ankylosis of the affected joints.
He then determined that, following Hosey’s July, 2005 arthroscopic
acromioplasty on her right shoulder for rotator cuff tendinitis,
the record did not establish any continued joint space narrowing,
bony destruction or ankylosis of the affected joints, nor any
inability to perform fine and gross movements effectively as
defined in 1.00B2C. Accordingly, he determined that her impairment
did not satisfy the required level of severity in the Listing.
The magistrate judge, however, noted that, although the record
established that Hosey had repeatedly complained of bilateral
shoulder

pain,

the

ALJ

failed

to

address

a

left

shoulder

impairment. He therefore determined there was evidence of record
strongly suggesting Hosey might have a left shoulder impairment as
well as one of the right shoulder.
The record is clear that Dr. Snead performed surgery only on
the right (dominant) shoulder and does not establish that he ever

19

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
planned to operate on the left shoulder. On a disability report
dated June 22, 2005, however, Hosey reported that Dr. Snead had in
fact planned to operate on both of her shoulders. (R. 220).
After finding that Hosey’s right shoulder impairment was
severe, the ALJ, in his RFC, stated that she was unable to use her
right upper extremity for any work above the shoulder level.
However, he failed to evaluate a possible left shoulder impairment
or to address any limitations that might be associated with the
left shoulder. The magistrate judge therefore found it unclear
whether Hosey should be limited to jobs that preclude any work
above the shoulder level. Accordingly, he correctly recommended
remand to the Commissioner for a determination regarding a possible
left shoulder impairment and consideration of whether Hosey was
prohibited from reaching above either shoulder.
3.

Significant Number of Jobs in the National and Local
Economy That Hosey Can Perform and Inconsistency with DOT

Hosey contends she cannot perform any of the jobs identified
by the VE because all require more than occasional reaching,
grasping and fingering. The Commissioner, on the other hand,
contends the magistrate judge incorrectly recommended remand due to
the ALJ’s failure to resolve an “alleged inconsistency between the

20

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Dictionary

of

Occupational

Titles

(“DOT”)

and

the

vocational

expert’s testimony regarding overhead reaching.” (Dkt. No. 14).
The

United

States

Department

of

Labor’s

Dictionary

of

Occupational Titles (4th ed., Rev. 1991) (“DOT”) defines “reaching”
as

“[e]xtending

hand(s)

and

arm(s)

in

any

direction.”

This

definition clearly includes reaching above shoulder level.
All of the jobs identified by the VE require at least frequent
“reaching.” Since the ALJ directed the VE to omit the requirement
of overhead reaching with the right arm, it is possible that the
particular jobs he identified might not require reaching above the
shoulder level with the right arm. He was never asked, however,
whether the jobs would be available to an individual who was unable
to use either arm to work overhead.
The ALJ posed the following hypothetical questions to the VE:
Q.

... For the first hypothetical question, lets assume that
we have an individual of the claimant’s age. She has gone
from a younger individual to an individual approaching
advanced age with high school education and the work
background as described. Lets assume that this individual
is limited to light exertion, as that term is defined in
the regulations. Would not be capable of performing
medium or heavy work. We’ll assume that the individual
will require an opportunity to change position briefly
after standing 20 to 30 minutes or sitting 30 minutes. We
will assume that this individual should not have to use
the right upper extremity to perform activities above
shoulder level. We will assume this individual would not
21

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
be able to climb any ladders, ropes or scaffolds or
engage in any crawling activities. Essentially would be
limited to occasional postural activities, such as stair
climbing balancing, kneeling and crouching. We are going
to assume further that the individual should have
minimal, by that I mean, less than occasional exposure to
any type of hazards, such as dangerous machinery or
unprotected heights or operate automotive equipment. No
concentrated exposure to excessive cold or dampness and
no concentrated exposure to dust or fumes. We are going
to assume for this hypothetical the individual would be
able to perform tasks regularly with the customary breaks
every two hours. We are going
to assume that the
individual cannot perform tasks that would require
sustained memory. Immediate memory. And we are going to
assume that the individual should not have to work in or
around crowds. Would be capable of occasional interaction
with the public, essentially of a superficial or simple
nature. With the above limitations, lets keep it to those
restrictions. Would such an individual be able to perform
any of the claimant’s past work?
A.

No. I don’t think she would be able to, Your Honor.

Q.

All right. Would there be unskilled, light occupation
such an individual could perform?

A.

The region I will be using today is all of West Virginia,
Western Maryland, Western Pennsylvania, and eastern Ohio.
Under the light exertion level, Your Honor, a laundry
worker working as a folder, 88,000 nationally, 1,300
regionally and because the hypothetical includes a change
of position briefly every 30 minutes, I would reduce
those numbers in half, Your Honor, and that is based upon
my experience in placing individuals. The DOT code is
369.687-018. Also under the light exertion level, a
garment sorter, 178,000 nationally, 1,500 regionally and,
again, I would reduce those numbers in half, Your Honor,
because of the same reasoning of the change of position
briefly every 30 minutes. The DOT code is 222.687-014.
These are samplings, Your Honor.
22

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Q.

Okay. What about sedentary positions?

A.

Under the sedentary level, Your Honor, an addresser
stuffer, 240,000 nationally, 2000 regionally. The DOT
code is 209.587-010. Also a general sorter and setter,
25,000 nationally and 900 regionally. The ODT code is
734.687-010. That, again, Your Honor, is a sampling.

(Emphasis added).
Hosey’s own testimony about her daily activities supports the
conclusion that she can reach in any direction except possibly
above the shoulder. Hosey testified that her daily activities
included taking care of her own personal needs, straightening the
house in the morning, fixing dinner, working on the house in the
afternoon, reading, watching television, playing games, making the
bed, running the vacuum, washing dishes, cooking, cleaning the
bathroom,

putting

groceries

away,

washing

windows,

ironing

clothing, mopping the floor, going grocery shopping, and driving a
car. (R. 28).
The magistrate judge identified an apparent inconsistency
between

the

jobs

the

ALJ

identified

and

the

DOT.

Prior

to

questioning the VE, the ALJ inquired: “If your testimony conflicts
with the dictionary of occupational titles, would you let us know
and provide the basis for your opinion?” (R. 92), which the VE
agreed to do. In the R&R, however, the magistrate judge observed
23

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
that, even though the ALJ’s hypothetical contained a restriction on
any work above shoulder level with the dominant right hand, the DOT
provides for at least frequent “reaching” (“extending hand(s) and
arm(s) in any direction”) in each of the job identified by the VE.
(R&R 45).
Social Security Ruling (“SSR”) 00-4p clarifies 20 C.F.R.
section 404.1566, which provides that, without more, an ALJ will
consider both the Dictionary of Occupational Titles and vocational
expert testimony to determine whether a Social Security claimant
can find work suited to his residual functional capacity.

SSR 00-

4p, 2000 WL 1898704 at *2 (December 4, 2000) additionally provides:
Occupational evidence provided by a VE or VS generally
should be consistent with the occupational information
supplied by the DOT. When there is an apparent unresolved
conflict between [VE] evidence and the DOT
the
adjudicator must elicit a reasonable explanation for the
conflict before relying on the [VE] evidence to support
a determination or decision about whether the claimant is
disabled. At the hearings level, as part of the
adjudicator’s duty to fully develop the record, the
adjudicator will inquire, on the record, as to whether or
not there is such consistency.
Neither the DOT nor the VE or VS evidence automatically
‘trumps’ when there is a conflict. The adjudicator must
resolve the conflict by determining if the explanation
given by the VE or VS is reasonable and provides a basis
for relying on the VE of VS testimony rather than on the
DOT information.

24

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
. . .
When a VE or VS provides evidence about the requirements
of a job or occupation, the adjudicator has an
affirmative responsibility to ask about any possible
conflict between that VE or VS evidence and information
provided in the DOT. In these situations, the adjudicator
will:
Ask the VE or VS if the evidence he or she has provided
conflicts with information provided in the DOT; and
If the VE’s or VS’s evidence appears to be in conflict
with the DOT, the adjudicator will obtain a reasonable
explanation for the apparent conflict.
. . .
When vocational evidence provided by a VE or VS is not
consistent with information in the DOT, the adjudicator
must resolve this conflict before relying on the VE or VS
evidence to support a determination or decision that the
individual is or is not disabled. The adjudicator will
explain in the determination or decision how he or she
resolved the conflict. The adjudicator must explain the
resolution of the conflict irrespective of how the
conflict was identified.
Even before the effective date of SSR 00-4p, in Byrd v. Apfel,
168 F.3d 481 (4th Cir. 1998) (unpublished), the Fourth Circuit had
noted VE testimony that overhead reaching was usually not required
in the jobs at issue in that case. Here, in contrast, the ALJ
failed to inquire of the VE whether the jobs he identified required
frequent reaching above the shoulder level.

25

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Considering that the ALJ failed to explain his reasons for not
considering the possibility of a left arm impairment, and the
apparent inconsistency between the jobs named by the VE and the
DOT’s descriptions of those jobs, the Court agrees with the
magistrate judge’s conclusion that the record did not contain
substantial evidence to support a determination that jobs existed
in significant numbers in the national economy that Hosey could
perform.
4.

Credibility Analysis

Hosey contends the ALJ applied an incorrect pain standard and
failed

to

adequately

analyze

her

subjective

symptoms

and

limitations. (Dkt. No. 15). The Fourth Circuit has previously
stated that “[b]ecause he had the opportunity to observe the
demeanor and to determine the credibility of the claimant, the
ALJ's observations concerning these questions are to be given great
weight.”

Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984)

(citing Tyler v. Weinberger, 409 F.Supp. 776 (E.D. Va. 1976)).
In Craig v. Chater, 76 F. 3d 585 (4th Cir. 1996), the Fourth
Circuit established a two-prong test for evaluating a claimant’s
subjective complaints of pain. Under the first prong, an ALJ must
determine whether the objective evidence of record establishes the
26

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
existence of a medical impairment or impairments resulting from
anatomical, physiological or psychological abnormalities that could
reasonably be expected to produce the pain or other symptoms
alleged.

Id.

at

594.

Under

the

second

prong,

the

ALJ

must

“expressly consider” whether a claimant has such an impairment. Id.
at 596.
If a claimant satisfies these two prongs, the ALJ then must
evaluate the “intensity and persistence of the claimant’s pain, and
the extent to which it affects her ability to work.” Id. at 595. In
this evaluation, an ALJ must consider
not only the claimant’s statements about her
pain, but also ‘all the available evidence,’
including the claimant’s medical history,
medical signs, and laboratory findings . . .
and any other evidence relevant to the
severity of the impairment, such as evidence
of the claimant’s daily activities, specific
descriptions of the pain, and any medical
treatment taken to alleviate it.
Id.
Here, the ALJ determined that Hosey satisfied the first prong
of the test and proceeded to the second step of evaluating the
intensity and persistence of her pain and the extent to which it
affected her ability to work at the time on or before her DLI. The
ALJ considered Hosey’s statements about her pain, her medical

27

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
history, medical signs, laboratory findings and objective medical
evidence of pain, and the medical treatment used to alleviate her
pain. The ALJ also considered her own testimony regarding her daily
activities, all of which supports his credibility determination.
Furthermore, the ALJ noted that the results of Hosey’s first
Minnesota Multiphasic Personality Inventory (MMPI-2) were evaluated
as very likely invalid by the administering psychologist. (R. 461)
When Hosey again took the same battery of tests at a later time,
another psychologist warned that her profile “should be interpreted
with caution” because there was “some possibility that the clinical
report is an exaggerated picture of the present situation and
problems.” (R. 589-593). These opinions that Hosey may have, or in
fact did, exaggerate her symptoms on a self-report test such as the
MMPI-2 support the ALJ’s credibility determination. Moreover, in
his RFC assessment, Dr. Franyutti opined that Hosey was only
partially credible because the evidence in the record did not fully
support her allegations. (R. 413). Dr. Pascasio also stated that he
was unable to assess Hosey’s credibility because she had not
returned a function report or account of her activities of daily
living. (R. 397).

28

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
The ALJ, as required, considered Hosey’s statements regarding
her pain and limitation, her daily activities and the evidence of
record. He then limited her residual functional capacity to light
jobs with the following limitations: 1) ability to change positions
briefly after sitting for 30 minutes or standing for 20 to 30
minutes; 2) inability to use her right arm for work above the
shoulder level; 3) inability to climb ladders, ropes or scaffolds,
or crawl; 4) only occasional climbing of ramps or stairs; 5) only
occasional balancing, stooping, kneeling and crouching; 6) must
avoid concentrated exposure to excessive cold, dampness, dust and
fumes; 7) inability to work around crowds; 8) only occasional
interaction in a superficial nature with the public; and 9)
inability to perform work requiring sustained immediate memory or
a fast production rate pace. (R. 22).
Relying on the Fourth Circuit’s holding in Shively, the
magistrate judge correctly concluded that there was substantial
evidence in the record supporting the ALJ’s determination that
Hosey’s allegations relating to her pain and limitations during the
time period from April 1, 2005, her alleged onset date through
December 31, 2008, her DLI, were not credible. 739 F.2d at 989.
E.

Remand
29

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
To the extent that Hosey, without citing to any relevant
authority, or even to the R&R, included a one-sentence “object[ion]
to the limitations on remand,” the Court overrules that objection
as lacking the specificity required by Fed. R. Civ. P. 72(b), see
United States v. Midgett, 478 F.3d 616, 622 (4th Cir 2007), and for
running afoul of well-settled law. See, e.g., Sullivan v. Hudson,
490 U.S. 877, 886 (1989) (“[T]he district court’s remand order will
often include detailed instructions concerning the scope of the
remand. . . . Deviation from the court’s remand order in the
subsequent

administrative

proceedings

is

itself

legal

error,

subject to reversal on further judicial review.” (citing Hooper v.
Heckler, 752 F.2d 83, 88 (4th Cir. 1985); Mefford v. Gardner, 383
F.2d 748, 758–759 (6th Cir. 1967)); see also Adkins v. Barnhart,
351 F.Supp.2d 505, 507-08 (W.D. Va. 2005).
VI. CONCLUSION
The R&R recommended reversing the Secretary’s decision under
sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3), and remanding
this case to the Secretary for further proceedings consistent with
this Recommendation. After careful examination of the objections,
it appears that neither the Commissioner nor Hosey has raised any
issues that were not thoroughly considered by the magistrate judge
30

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
in his R&R. Moreover, after an independent de novo consideration of
all matters before it, the Court is of the opinion that the R&R
accurately

reflects

the

law

applicable

to

the

facts

and

circumstances before it in this action. It therefore ACCEPTS the
magistrate judge’s R&R in whole and ORDERS that this civil action
be disposed of in accordance with the recommendation of the
magistrate judge.

Accordingly:

1.

The plaintiff's motion for Summary Judgment (Docket No.
10) is GRANTED IN PART;

2.

The defendant's motion for Summary Judgment (Docket No.
11) is DENIED;

3.

The claim is REMANDED to the Commissioner for
consideration pursuant to the recommendations contained
in the magistrate judge's Report and Recommendation and
this Order; and

4.

This civil action is DISMISSED WITH PREJUDICE and RETIRED
from the docket of this Court.

The Clerk of Court is directed to enter a separate judgment
order. Fed. R. Civ. P. 58.

If a petition for fees pursuant to the

Equal Access to Justice Act (EAJA) is contemplated, the plaintiff
is warned that, as announced in Shalala v. Schaefer, 509 U.S. 292
(1993),

the

time

for

such

a

thereafter.

31

petition

expires

ninety

days

HOSEY V. ASTRUE

1:11CV207

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
The Court directs the Clerk of Court to transmit copies of
this Order to counsel of record.
DATED: March 29, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

32