Mooney v. Astrue

Filing 14

PROPOSED FINDINGS AND RECOMMENDATION recommending that the presiding District Judge reverse the final decision of the Commissioner and remand this case for further proceedings pursuant to the fourth sentence of 42 U.S.C. Section 405(g) and dismiss th is matter from the Court's docket. Objections to Proposed F&R due by 11/15/2010. Case no longer referred to Magistrate Judge Mary E. Stanley. Signed by Magistrate Judge Mary E. Stanley on 10/29/2010. (cc: attys) (tmr) (Modified text to conform to filed document, to correct typographical error and to note the case is no longer referred to Magistrate Judge Stanley on 11/4/2010) (skh).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
KAREN LYNN MOONEY,
Plaintiff,
v.

CASE NO. 2:09-cv-01162

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

PROPOSED FINDINGS AND RECOMMENDATION
This is an action seeking review of the final decision of the
Commissioner of Social Security denying the Claimant’s application
for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-1383f.

This case was

referred to this United States Magistrate Judge by standing order
to consider the pleadings and evidence, and to submit proposed
findings of fact and recommendation for disposition, all pursuant
to 28 U.S.C. § 636(b)(1)(B).
Plaintiff, Karen Lynn Mooney (hereinafter referred to as
“Claimant”), protectively filed an application for SSI on March 15,
2006, alleging disability as of June 30, 1991, due to neuropathy in
her legs, arms and hands, high blood pressure, back problems,
nerves, diabetes and fibromyalgia.

(Tr. at 14, 190, 200, 240.)

The claim was denied initially and upon reconsideration.
79-81,

89-91.)

Claimant

requested

a

hearing

(Tr. at

before

an

Administrative Law Judge (“ALJ”).

(Tr. at 76.)

The hearing was

held on July 24, 2008, before the Honorable James P. Toschi.
at

26-43.)

By

decision

dated

September

23,

2008,

(Tr.

the

ALJ

determined that Claimant was not entitled to benefits. (Tr. at 1425.)

The

ALJ’s

decision

became

the

final

decision

of

the

Commissioner on August 24, 2009, when the Appeals Council denied
Claimant’s request for review.

(Tr. at 4-7.) On October 22, 2009,

Claimant brought the present action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. § 405(g).
Under

42

U.S.C.

§

423(d)(5)

and

§

1382c(a)(3)(H)(i),

a

claimant for disability benefits has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir.
1972).

A disability is defined 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 last for a continuous period of not less than 12 months
. . . .”
The

42 U.S.C. § 1382c(a)(3)(A).
Social

Security

Regulations

establish

a

evaluation" for the adjudication of disability claims.
§ 416.920 (2008).

"sequential
20 C.F.R.

If an individual is found "not disabled" at any

step, further inquiry is unnecessary. Id. § 416.920(a). The first
inquiry under the sequence is whether a claimant is currently
engaged in substantial gainful employment.

Id. § 416.920(b).

If

the claimant is not, the second inquiry is whether claimant suffers

2

from

a

severe

impairment.

Id.

§

416.920(c).

If

a

severe

impairment is present, the third inquiry is whether such impairment
meets or equals any of the impairments listed in Appendix 1 to
Subpart P

of the Administrative Regulations No. 4.

Id. §

416.920(d). If it does, the claimant is found disabled and awarded
benefits.

Id.

If it does not, the fourth inquiry is whether the

claimant's impairments prevent the performance of past relevant
work.

Id. § 416.920(e).

By satisfying inquiry four, the claimant

establishes a prima facie case of disability.
F.2d 260, 264 (4th Cir. 1981).

Hall v. Harris, 658

The burden then shifts to the

Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983), and leads to the fifth and final inquiry: whether the
claimant is able to perform other forms of substantial gainful
activity, considering claimant's remaining physical and mental
capacities and claimant's age, education and prior work experience.
20 C.F.R. § 416.920(f) (2008).
things:

(1)

that

the

The Commissioner must show two

claimant,

considering

claimant’s

age,

education, work experience, skills and physical shortcomings, has
the capacity to perform an alternative job, and (2) that this
specific

job

exists

in

the

national

economy.

McLamore

v.

Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant
satisfied

the

first

inquiry

because

she

has

not

engaged

in

substantial gainful activity since the alleged onset date. (Tr. at

3

16.) Under the second inquiry, the ALJ found that Claimant suffers
from the severe impairments of diabetes mellitus, lumbar disc
disease, fibromyalgia, major depressive disorder and generalized
anxiety disorder.

(Tr. at 16.)

At the third inquiry, the ALJ

concluded that Claimant’s impairments do not meet or equal the
level of severity of any listing in Appendix 1.

(Tr. at 17.)

The

ALJ then found that Claimant has a residual functional capacity for
light work, reduced by nonexertional limitations. (Tr. at 19.) As
a result, Claimant has no past relevant work.

(Tr. at 24.)

Nevertheless, the ALJ concluded that Claimant could perform jobs
such as hand packer, assembler and laundry worker, which exist in
significant numbers in the national economy.
basis, benefits were denied.

(Tr. at 24.)

On this

(Tr. at 25.)

Scope of Review
The sole issue before this court is whether the final decision
of the Commissioner denying the claim is supported by substantial
evidence.

In Blalock v. Richardson, substantial evidence was

defined as
“evidence which a reasoning mind would accept
as
sufficient
to
support
a
particular
conclusion. It 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 were the
case before a jury, then there is 'substantial
evidence.’”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting
Laws

v.

Celebrezze,

368

F.2d
4

640,

642

(4th

Cir.

1966)).

Additionally, the Commissioner, not the court, is charged with
resolving conflicts in the evidence.
1453, 1456 (4th Cir. 1990).

Hays v. Sullivan, 907 F.2d

Nevertheless, the courts “must not

abdicate their traditional functions; they cannot escape their duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.”

Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the
Commissioner is not supported by substantial evidence.
Claimant’s Background
Claimant

was

forty-three

years

old

at

the

time

of

the

administrative hearing. (Tr. at 29.) Claimant graduated from high
school.

(Tr. at 30.)

Claimant worked in the past, but not long

enough to be considered past relevant work.

(Tr. at 39.)

The Medical Record
The court has reviewed all evidence of record, including the
medical evidence of record.

Claimant does not challenge the

medical evidence of record, except for the ALJ's treatment of the
opinion of Todd Berry, D.O., which the court will address below.
Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts that the Commissioner’s decision is not
supported

by

substantial

evidence

because

the

ALJ

afforded

"significant weight" to the opinion of Dr. Berry, who opined that
Claimant had manipulative limitations, but did not include them in

5

his

residual

functional

capacity

finding,

rejecting the opinion without explanation.

thereby

apparently

In addition, Claimant

complains that the ALJ erred in failing to adopt the hypothetical
question that included manipulative limitations (and eliminated all
jobs that Claimant could perform).

(Pl.'s Br. at

2-5.)

The Commissioner argues that substantial evidence supports the
ALJ's finding that Claimant could perform alternative light work.
The Commissioner contends that the ALJ did not reject the opinion
of

Dr.

Berry

and

instead,

actually

found

a

more

restrictive

residual functional capacity than Dr. Berry.

The Commissioner

further

in

asserts

that

the

ALJ

did

not

err

leaving

out

manipulative limitations from the residual functional capacity
because Claimant never proved that she had manipulative limitations
that would preclude the performance of unskilled light occupations
identified by the vocational expert.

(Def.'s Br. at 4-8.)

In his decision, the ALJ found that Claimant has the severe
impairments

of

diabetes

mellitus,

lumbar

disc

disease,

fibromyalgia, major depressive disorder and generalized anxiety
disorder.

(Tr. at 16.)

As for objective medical evidence related

to any hand impairment, a neurodiagnostic report dated November 15,
2004, revealed mild peripheral neuropathy most likely due to
diabetes, but there was no obvious evidence of carpal tunnel
syndrome.

(Tr. at 513.)

At the administrative hearing, Claimant

testified that she had “neuropathy in my ... hands ... they swell

6

up .. I can’t do a whole lot with my arms and hands” because of the
neuropathy.

(Tr. at 32.)

Todd Berry, D.O., Claimant’s treating physician, completed a
Medical

Assessment

of

Ability

to

do

Work-Related

Activities

(Physical) on January 3, 2007, and opined that Claimant’s ability
to lift and carry were not affected by her impairments, that she
could stand/walk a total of eight hours in an eight-hour workday,
four without interruption, that sitting was not interrupted, that
Claimant could frequently climb, balance, stoop, crouch, kneel and
crawl, that she had no environmental restrictions, that she had
manipulative limitations in feeling (skin receptors), but that she
was unlimited in reaching in all directions, handling (gross
manipulation) and fingering (fine manipulation).
expound

on

the

manipulative

limitations

found

When asked to
to

be

limited

(feeling), Dr. Berry checked boxes indicating that Claimant could
occasionally1 handle, finger and feel.

(Tr. at 463-64.)

Dr. Berry

wrote that Claimant “needed to check her blood sugar frequently and
may need to have extra time to manage her blood glucose levels.
The patient may also have difficulty with finger/hand movements
requiring fine precision.”

(Tr. at 465.)

In his decision, the ALJ made the following finding about the
Dr. Berry’s opinion:

1

In an earlier section of the Assessment, “occasionally” is defined
as “from very little up to 1/3 of an 8 hour day.” (Tr. at 464.)

7

On January 3, 2007, Todd Berry, D.O., the claimant’s
treating physician, completed a Medical Assessment of
Ability to do Work-Related Activities (physical) and
concluded that the claimant was not limited with lifting
and/or carrying. She could stand and/or walk eight hours
in an eight-hour workday and four hours without
interruption. She was not limited with sitting. She did
not have any limitations with posturals and environmental
restrictions.
She could occasionally reach, handle,
finger, and feel. She did not have any limitations with
seeing, hearing, and speaking .... Significant weight is
given to this opinion as it is consistent with the
evidence of record.
(Tr. at 22.)
The

ALJ

made

the

following

residual

functional

capacity

finding:
[C]laimant has the residual functional capacity to
perform light work ....
She would be limited to
occasionally (two hours or 1/3 of the workday) climbing,
balancing, stooping, kneeling, crouching, and crawling.
She should avoid concentrated exposure to extreme cold,
humidity, vibration, fumes, odors, hazards including
heights and machinery.
She would be limited to
understanding, remembering, and carrying out simple
instruction and tasks only.
She would require a low
stress, low production requirement with only occasional
contact with co-workers and no contact with the public.
(Tr. at 19.)
When the ALJ posed a hypothetical including these limitations
to the vocational expert, the vocational expert identified the jobs
of hand packer, assembler and laundry worker.

(Tr. at 40-41.)

Claimant’s counsel posed the following hypothetical question:
Q *** [I]f an individual had limitations in reaching,
hand – or let’s just, fingering and feeling, and these
were limited to less than six hours in an eight-hour
workday, would there be jobs?
A They’re going to have to have at least average use of
8

their hands for the majority of all jobs. So six hours
would not comply with the eight-hour work-day.
(Tr. at 42.)
The court proposes that the presiding District Judge find that
the ALJ’s decision is not supported by substantial evidence because
the ALJ failed to correctly acknowledge and weigh the manipulative
limitations in Dr. Berry’s opinion or to explain why he did not
adopt the hypothetical question posed by Claimant’s counsel that
included limitations in fingering and feeling.
The ALJ found that Dr. Berry opined that Claimant could
occasionally reach, handle, finger and feel and that he afforded
this and his other opinions “[s]ignificant weight ...”
22.)

(Tr. at

In fact, Dr. Berry found that Claimant was limited only in

feeling and that, as a result, she could only occasionally handle,
finger and feel.

Dr. Berry makes no mention of any limitation in

Claimant’s ability to reach, as the ALJ found.
Berry

found

Claimant’s

ability

to

finger

Furthermore, Dr.

and

handle

to

be

unlimited, but then found that Claimant could only occasionally
perform these functions.

As noted above, the Assessment defines

occasionally as “from very little up to 1/3 of an 8 hour day.”
(Tr. at 465.)

Dr. Berry later states that Claimant “may also have

difficulty with finger/hand movements requiring fine precision.”
(Tr. at 465.)

The ALJ’s decision omits and/or does not correctly

state Dr. Berry’s somewhat confusing opinion in its entirety, yet
the ALJ purports to afford significant weight to the opinion. This
9

becomes problematic in light of the hypothetical question posed by
Claimant’s counsel that the ALJ also failed to address in his
decision.
At the administrative hearing, the vocational expert testified
that an individual who was limited to fingering and feeling “less
than six hours in an eight-hour workday” could not work.

(Tr. at

42.) The vocational expert testified that “[t]hey’re going to have
to have at least average use of their hands for the majority of all
jobs. So six hours would not comply with the eight-hour workday.”
(Tr. at 42.)

The manipulative limitations in the hypothetical

question posed to the vocational expert by Claimant’s counsel are
less restrictive than the manipulative limitations opined by Dr.
Berry. At a minimum, the ALJ should have explained his reasons for
not adopting the hypothetical question posed by Claimant’s counsel,
particularly when it contained limitations similar to, if not less
restrictive than, limitations posed by Dr. Berry, whose opinion he
purportedly adopted.
The

ALJ

must

accompany

his

decision

with

sufficient

explanation to allow a reviewing court to determine whether the
Commissioner’s decision is supported by substantial evidence.
“[T]he [Commissioner] is required by both the Social Security Act,
42 U.S.C. § 405(b), and the Administrative Procedure Act, 5 U.S.C.
§ 557(c), to include in the text of [his] decision a statement of
the reasons for that decision.”

Cook v. Heckler, 783 F.2d 1168,

10

1172

(4th

Cir.

1986).

The

ALJ’s

“decisions

should

refer

specifically to the evidence informing the ALJ's conclusion.
duty

of

explanation

is

always

administrative charge . . . .”
426 (4th Cir. 1985).

an

important

aspect

of

This
the

Hammond v. Heckler, 765 F.2d 424,

In the instant matter, such explanation is

lacking and, as a result, the court is constrained to recommend
remand.
The court has considered the Commissioner’s argument that the
jobs identified by the vocational expert
especially inspector/packer and laundry [worker] do not
appear to require precision finger movements, but rather
only gross manipulation, which Dr. Berry stated was
“unlimited” (Tr. 464.) As the vocational expert stated,
most jobs (and the identified jobs), require “at least
average” ability to use the hands (Tr. 42).
(Def.'s Br. at 7.)
The vocational expert did not explicitly state that the
identified jobs required average use of the hands, he stated that
“the majority of all jobs” have to have at least average use of
their hands.

(Tr.

at

42.)

In

fact, in the

Dictionary of

Occupational Titles (“DOT”), the jobs of hand packer, assembler and
laundry

worker

contain

the

following

handling,

fingering

and

feeling requirements:
Hand Packer:
Handling: Constantly Fingering: Constantly Feeling: Occasionally -

Exists 2/3 or more of the time
Exists 2/3 or more of the time
Exists up to 1/3 of the time

Assembler:
Handling: Frequently -

Exists 1/3 to 2/3 of the time

11

Fingering: Frequently Feeling: Not Present -

Exists 1/3 to 2/3 of the time
Activity or condition does not
exist

Laundry Worker:
Handling: Frequently Exists 1/3 to 2/3 of the time
Fingering: Occasionally - Exists up to 1/3 of the time
Feeling: Not Present Activity or condition does not
exist
U.S.

Department

of

Labor,

Dictionary

of

Occupational

Titles,

784.687-042, 706.687-010, 361.687-030 (4th ed. 1991).
Clearly, if the ALJ had adopted Dr. Berry’s opinion about the
limitations in Claimant’s ability to handle, finger and feel as
occasional, i.e., from very little up to 1/3 of an eight-hour day,
Claimant likely could not have performed these jobs. However, what
is puzzling about the decision is that Claimant’s counsel actually
posed a less restrictive hypothetical question, that Claimant could
only finger and feel less than six hours in an eight-hour workday.
In

response,

the

vocational expert

could

identify

no

jobs.

Presumably with even more stringent limitations as opined by Dr.
Berry,

Claimant

also

could

not

perform

the

jobs

particularly given their description in the DOT.

identified,
Against this

confusing backdrop, the court sees no option but to recommend
remand for clarification and further consideration of this issue.
For the reasons set forth above, it is hereby respectfully
RECOMMENDED that the presiding District Judge REVERSE the final
decision of the Commissioner, and REMAND this case for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g)

12

and DISMISS this matter from the court’s docket.
The parties are notified that this Proposed Findings and
Recommendation is hereby FILED, and a copy will be submitted to the
Honorable John T. Copenhaver, Jr.

Pursuant to the provisions of

Title 28, United States Code, Section 636(b)(1)(B), and Rules 6(d)
and 72(b), Federal Rules of Civil Procedure, the parties shall have
fourteen

days

(filing

of

objections)

and

then

three

days

(mailing/service) from the date of filing this Proposed Findings
and Recommendation within which to file with the Clerk of this
court, specific written objections, identifying the portions of the
Proposed Findings and Recommendation to which objection is made,
and the basis of such objection.

Extension of this time period may

be granted for good cause shown.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals. Snyder
v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn,
474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

Copies of such objections shall be served on opposing

parties, Judge Copenhaver, and this Magistrate Judge.

13

The Clerk is directed to file this Proposed Findings and
Recommendation and to transmit a copy of the same to counsel of
record.
October 29, 2010
Date

14