Opinion
7:19-CV-1-FL
02-19-2020
FRANK R. GONZALEZ, III, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Frank R. Gonzalez, III, ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew Saul ("Commissioner") denying his application for Supplemental Security Income ("SSI") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 25, 29. Both filed memoranda in support of their respective motions. D.E. 26, 30. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 13 Nov. 2019 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.
I. BACKGROUND
A. Case History
Plaintiff filed an application for SSI on 21 October 2014 alleging a disability onset date of 6 February 2005. Transcript of Proceedings ("Tr.") 22. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 22; 283-84. On 26 May 2017, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 22; 191-236. The ALJ issued a decision denying plaintiff's claims on 25 September 2017. Tr. 22-33.
Plaintiff timely requested review by the Appeals Council. Tr. 358. On 2 November 2018, the Appeals Council issued an order finding that additional evidence submitted by plaintiff"does not show a reasonable probability that it would change the outcome of the decision" and denied the request for review. Tr. 1, 2. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. On 2 January 2019, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 1383(c)(3). See D.E. 1 (In Forma Pauperis ("IFP") Mot.); D.E. 5 (Order Allowing IFP Mot.); D.E. 6 (Compl.).
The Appeals Council described this evidence as follows:
You submitted a transcript from Purnell Swett High School dated October 24, 2017 (3 pages); an undated statement from Paramedic Partnerships (3 pages); medical records from Southeastern Psychiatry Clinic dated March 3, 2017 to October 9, 2017 (63 pages); medical records from Southeastern Regional Physician Services dated May 29, 2017 to October 3, 2017 (17 pages); medical records from Southeastern Regional Medical Center dated July 13, 2017 to July 17, 2017 (59 pages); and medical records from Gibson Cancer Center dated August 8, 2017 to October 20, 2017 (13 pages).Tr. 2. Although the Appeals Council did not exhibit this evidence, the evidence appears to be included in the record at Tr. 13-190.
The court is reviewing the ALJ's decision under the versions of the regulations and Social Security rulings applicable to plaintiff's claim in this appeal, although several are subject to modifications that subsequently went into effect.
B. Standards for Disability
The Social Security Act ("Act") defines an individual as disabled for purposes of SSI "if he is unable 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 twelve months." 42 U.S.C. § 1382c (a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age,
education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
C. ALJ's Findings
Plaintiff was 36 years old on the alleged disability onset date and 38 years old on the date of the hearing and issuance of the ALJ's decision. See, e.g., Tr. 32 ¶ 6; 199. The ALJ found that plaintiff has at least a high school education (Tr. 32 ¶ 7) and past relevant work as a delivery route truck driver and material handler (Tr. 32 ¶ 5).
Applying the five-step analysis of 20 C.F.R. § 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the application date of 21 October 2014. Tr. 24 ¶ 1. At step two, the ALJ found that plaintiff has the following medically determinable impairments that are severe: depression, anxiety, carpal tunnel syndrome, gout, morbid obesity, traumatic arthropathy of the ankle and foot, osteoarthritis, and hypertension. Tr. 24 ¶ 2. At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 25 ¶ 3.
The ALJ next determined that plaintiff has the RFC to perform a limited range of sedentary work:
After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform sedentary work as defined in 20 CFR 416.967(a), with the following provisos: he is limited to occasional overhead reaching bilaterally, but frequent reaching in all other directions, handling, fingering, feeling, pushing, pulling, and/or operating hand controls with the upper
extremities; no pushing, pulling, and/or operating foot controls with the left lower extremity; he is limited to occasional climbing [of] ramps and stairs; no climbing [of] ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, and/or crouching; no crawling; he must avoid all exposure to workplace hazards, such as dangerous moving machinery and unprotected heights; he is able to understand and perform simple, routine, repetitive tasks, and he can maintain concentration, persistence, and pace to stay on task for 2 hour periods over the course of a typical 8-hour day, in [a] low stress setting, further defined to mean no production-paced or quota-based work; rather, he requires a goal-oriented job primarily dealing with things rather than people; no more than occasional changes in the work setting; no more than occasional social interaction with supervisors, co-workers, and/or members of the public.[ ]Tr. 27-28 ¶ 4.
These regulations describe sedentary work as "involv[ing] lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 416.967(a); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 19.91) ("DOT"), app. C § IV, def. of "S-Sedentary Work," 1991 WL 688702. "Sedentary work" and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. § 416.967.
At step four, as indicated, the ALJ found that plaintiff could not perform his past relevant work. Tr. 32 ¶ 5. At step five, citing the testimony of the vocational expert, the ALJ found that there are jobs in the national economy existing in significant numbers that plaintiff can perform, including jobs in the occupations of document preparer (DOT # 249.587-018) and final assembler (DOT # 713.687-018). Tr. 32-33 ¶ 9. The ALJ accordingly concluded that plaintiff was not disabled from the application date, 21 October 2014, implicitly, through the date of his decision, 25 September 2017. See Tr. 33 ¶ 10.
II. STANDARD OF REVIEW
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Where, as here, additional evidence is submitted to the Appeals Council before it denies the claimant's request for review of the ALJ's decision, the court must review the record as supplemented in determining whether substantial evidence supports the Commissioner's findings. See Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (citing Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
III. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded him or, alternatively, that this case should be remanded for a new hearing on the grounds that the ALJ erred in: (1) improperly determining plaintiff's RFC and (2) posing an improper hypothetical to the vocational expert. The court will address each contention in turn below.
IV. ALJ'S RFC DETERMINATION
A. Applicable Legal Principles
As noted, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 416.945(a)(1) More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. § 416.945(a)(3). This assessment includes consideration of impairments deemed severe as well as those that are nonsevere. See Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) ("In determining a claimant's RFC, the ALJ must consider 'all of [the claimant's] medically determinable impairments of which [the ALJ is] aware,' including those not labeled severe at step two.'" (quoting Mascio, 780 F.3d at 635); Coniglio v. Berryhill, No. 3:16-CV-847-MR, 2018 WL 1161137, at *3 (W.D.N.C. 5 Mar. 2018) ("'[I]n assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not "severe." While a 'not severe' impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim.'" (quoting Soc. Sec. Ruling 96-8p) (emphasis in original)). In sum, an ALJ's decision must state the claimant's RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7 (RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence").
In determining a claimant's RFC, Social Security Ruling 96-8p requires the ALJ to perform a function-by-function analysis. The ruling states that the "RFC assessment must . . . assess [the individual's] work-related abilities on a function-by-function basis." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *1. However, the Fourth Circuit has declined to adopt a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis. Mascio, 780 F.3d at 636. Rather, "'remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The Mascio court held that a function-by-function analysis is deficient if the ALJ's assessment does not contain an analysis of a claimant's work-related abilities "including the functions listed in the regulations." 780 F.3d at 636 (citing SSR 96-8p). Functions listed in the regulations include a claimant's "physical abilities, 'such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching).'" Id. at 636 n.5 (quoting 20 C.F.R. § 416.945(b)-(d)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14- CV-00120, 2015 WL 4389533, at *3 (W.D.N.C. 17 July 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with SSR 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. 26 July 2010))).
B. Analysis
Plaintiff contends that in determining his RFC the ALJ failed to properly address limitations in the use of his hands. The court agrees. The ALJ committed multiple errors in making his RFC determination with respect to plaintiff's hands.
The evidence of record regarding plaintiff's carpal tunnel syndrome includes, of course, his testimony about it. As summarized by the ALJ in his decision, plaintiff testified that his carpal tunnel syndrome "causes hand cramping and swelling" and that "[h]e is sometimes unable to open his hand." Tr. 28 ¶ 4. The ALJ himself commented to plaintiff at the hearing, "the way you're holding your hands, they're kind of clamped like you're just kind of keeping them closed." Tr. 208. Plaintiff confirmed to the ALJ that he could not open his hands further and that they were becoming worse. Tr. 208-09.
In his decision, the ALJ noted additional limitations arising from plaintiff's carpal tunnel syndrome that are reflected in medical records:
By June 2016, the claimant reported sustained numbness and weakness of the left upper extremity. A carpal tunnel release was recommended. However, his surgery was not scheduled because he was under a financial assistance program with the hospital and his condition was not considered emergent (Exhibit 8F/41 [Tr. 842]).Tr. 28 ¶ 4 (emphasis added). The office visit to which the ALJ refers was with orthopedist Eric Breitbart, M.D., ostensibly of Southeastern Regional Physician Services. See Tr. 836-42.
Significantly, the ALJ erred by attributing plaintiff's reports of numbness and weakness to only his left upper extremity. Plaintiff reported, and tested positive for, weakness and numbness in both hands due to carpal tunnel syndrome. Tr. 840, 842. The record of this visit states in relevant part:
[Right] NEURO EXAM: Significantly decreased sensation to 1st to 3rd digits in median nerve distribution, moderate thenar wasting with + tinels and phalens. [Tr. 840]
. . . .
[Left] NEURO EXAM: Decreased sensation to 1st to 3rd digits in median nerve distribution, mild thenar wasting[ ] with + tinels and phalens. [Tr. 842]
Notes: Patient has significant bilateral carpal tunnel syndrome R>L confirmed on EMG from 2 years ago with worsening clinical symptoms over past year. He also has history of recurrent Left shoulder dislocations from 1998 with a partial cuff tear and labral injury. A long discussion was had with the patient regarding these issues and which to address first. His carpal tunnel is too severe at this point to address with conservative management as he [ ]is having sustained numbness and weakness and surgical intervention would be with a hope of preventing further deterioration. Also, his left shoulder should be scoped and stabilized. We will plan to start with his right carpal tunnel release. [Tr. 842]
See Nat'l Center for Biotechnology Information website, Thenar Muscle Atrophy, https://www.ncbi.nlm.nih.gov/medgen/355274 (last visited 19 Feb. 2020) (defining thenar wasting as the "[w]asting of thenar muscles, which are located on palm of the hand at the base of the thumb."); Cleveland Clinic website, Carpal Tunnel Syndrome: Diagnosis and Tests, https://my.clevelandclinic.org/health/diseases/4005-carpal-tunnel-syndrome/diagnosis-and-tests (last visited 19 Feb. 2020) (explaining tinel's sign and Phalen test and their use in diagnosing carpal tunnel syndrome).
Moreover, as this note indicates, the carpal tunnel syndrome was worse in plaintiff's right hand than his left: "Patient has significant bilateral carpal tunnel syndrome R>L." Tr. 842 (emphasis added). The same record indicates that plaintiff is right-handed. Tr. 838 ("Hand dominance: right.").
It is true, as the ALJ stated, that Dr. Breitbart stated in his office visit note that hospital administration informed him that it did not consider his carpal tunnel surgery emergent. But Dr. Breitbart further stated that he "informed the admin[i]stration that with the worsening of [plaintiff's] symptoms, we should not put these surgeries off for longer than 6 months." Tr. 842.
In his description of a visit by plaintiff with orthopedist David Dalsimer, D.O. of Southeastern Regional Physician Services about a year earlier, on 27 July 2015, the ALJ mischaracterizes Dr. Dalsimer's recommendation regarding the use of conservative treatment for plaintiff's carpal tunnel syndrome as opposed to surgery. The ALJ stated: "Conservative treatment of his carpal tunnel syndrome was recommended if a neurological workup was negative in July 2015 (Exhibit 8F/89)." Tr. 29 ¶ 4. In fact, Dr. Dalsimer stated the opposite: "Patient may require surgical release of the carpal tunnel[.] [T]his will be performed if his neurological work up is normal[.]" Tr. 890. He was recommending "conservative treatment this time," that is, pending receipt of the neurological reports. Tr. 890.
The court recognizes that the need for surgery to address an impairment does not necessarily establish the degree of functional limitation resulting from the impairment. But the need for surgery does provide insight into the severity of the impairment, and an accurate understanding of the severity of an impairment is fundamental to an accurate assessment of the functional limitations the impairment imposes.
In light of the foregoing and other evidence of plaintiff's carpal tunnel syndrome, the ALJ found that the carpal tunnel syndrome is a severe impairment. Tr. 24 ¶ 2. He thereby determined that the carpal tunnel syndrome had more than a minimal effect on plaintiff's ability to perform basic work activities. See Soc. Sec. Ruling 85-28, 1985 WL 56856, at *3 (1 Jan. 1985) (providing that an impairment is not severe "when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered"); see also 20 CF.R. § 416.920(c) (providing that an impairment is severe only if it "significantly limits . . . [a claimant's] physical or mental ability to do basic work activities").
But the ALJ never performed a function-by-function analysis of plaintiff's use of his hands. Nor was there an assessment by a nonexamining consulting state agency physician that could substitute for a function-by-function analysis by the ALJ. The physical assessment of plaintiff at the initial level of review was performed by a single decision maker, and the ALJ properly gave her assessment no weight. Tr. 30 ¶ 5; Smith v. Berryhill, No. 7:17-CV-139-D, 2018 WL 3800044, at *4 (23 July 2018), mem. & recomm. adopted, 2018 WL 3785399 (9 Aug. 2018) (citing, e.g., Nicholson v. Astrue, Civ. No. 1:09cv271, 2010 WL 4506997, at *6 & n.2 (W.D.N.C. 29 Oct. 2010) (collecting cases)). While a physician, Kevin White, M.D., performed the physical assessment at the reconsideration level, on 3 August 2015, he found that plaintiff's carpal tunnel syndrome was not a severe impairment. See Tr. 256 (list of impairments found not including carpal tunnel syndrome); 258 ("He has no evidence of impairments due to CTS."); 259 (finding plaintiff was capable of unlimited handling, fingering, and feeling). In giving this assessment partial weight, the ALJ noted that he found there to be "greater limitations in the claimant's [RFC] after considering his testimony and the more recent evidence of record, to which State Agency medical . . . consultants were not privy." Tr. 30 ¶ 4. The evidence not available for the review at the reconsideration level appears to have included Dr. Dalsimer's note on his 27 July 2015 visit with plaintiff. See Tr. 255-56 (discussion of evidence reviewed not including the note on the 27 July 2015 visit).
The ALJ went on to conclude, as indicated, that plaintiff could frequently handle and finger with both hands. Tr. 27 ¶ 4. Frequently means one-third to two-thirds of the time. See Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (U.S. Dep't of Labor 1993) ("SCO") app. C, p. C-3 (definition of "frequently"). Both occupations the ALJ found plaintiff able to perform require frequent handling and fingering. See SCO, p. 371, DOT # 249.587-018, DOCUMENT PREPARER/MICROFILMING; p. 283, DOT # 713.687-018, FINAL ASSEMBLER.
The SCO is a supplement or companion to the DOT that lists the specific functional requirements for specific DOT occupations. See Soc. Sec. Ruling 83-14, 1983 WL 31254, at *1 (1983).
In the absence of a function-by-function analysis or other explanation, the ALJ fails to make clear how the restriction of him to frequent handling and fingering in the RFC determination accommodates the limitations resulting from his carpal tunnel syndrome as reflected in the evidence of record. While the ALJ did discount generally plaintiff's statements regarding his impairments, that is, his symptoms (see Tr. 28 ¶ 4), the ALJ did not address specifically plaintiff's statements regarding use of his hands, including his reports at the 8 June 2016 orthopedic visit which Dr. Breitbart obviously credited. Nor did the ALJ make clear the extent to which he discounted Dr. Breitbart's findings that plaintiff had "sustained numbness and weakness" in his hands. Tr. 842.
"After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not persuasive of disability based on the medical and other evidence in the record, for the reasons explained in this decision." Tr. 28 ¶ 4; see also 20 C.F.R. § 416.928(a) (defining symptoms as a claimant's statements about his impairments). --------
Moreover, given the nature of the limitations on plaintiff's use of his hands evidenced by the record—cramping, swelling, numbness, and weakness—it is not clear how restricting the frequency of use of his hands would accommodate these limitations. The evidence of record suggests the possibility that plaintiff could not perform precise manipulative activities at all, irrespective of the time allotted, or at least not up to two-thirds of the time.
The uncertainty regarding the basis for the ALJ's conclusion regarding plaintiff's handling and fingering capacity is enhanced when the specific demands of the two occupations the ALJ found plaintiff capable of performing are considered. Both appear to require a level of manipulative capacity incompatible with much of the evidence regarding plaintiff's carpal tunnel syndrome.
Specifically, the final assembler occupation requires screwing attachments onto eyeglass frames:
Attaches nose pads and temple pieces to optical frames, using handtools: Positions parts in fixture to align screw holes. Inserts and tightens screws, using screwdriver.DOT # 713.687-018 FINAL ASSEMBLER, 1991 WL 679271.
The document preparer occupation involves, among other tasks, cutting documents into the appropriate size for microfilming:
Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and format when allowed by margin space, using paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and filming priority schedule.DOT # 249.587-018 DOCUMENT PREPARER, MICROFILMING, 1991 WL 672349.
The court concludes that the ALJ failed to build "'an accurate logical bridge from the evidence to [the] conclusions'" he reached regarding his RFC determination as required. Monroe, 826 F.3d at 189. This failure frustrates meaningful substantial evidence review and requires remand. Id. at 189-91; Lewis, 2017 WL 2381113, at *6 ("A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling," including "a discussion of which evidence the ALJ found credible and why, and the specific application of the pertinent legal requirements to the record evidence." (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013))); Ivey v. Barnhart, 393 F. Supp. 2d 387, 390 (E.D.N.C. 2005) (citing Murphy, 810 F.2d at 438) ("[R]emand is appropriate where an ALJ fails to discuss relevant evidence that weighs against his decision."). Remand, in lieu of the award of benefits, is appropriate because of the presumption in favor of remand and the ambiguity in the record as to whether or not plaintiff is disabled. Radford, 734 F.3d at 295-96.
The ALJ's errors regarding the evidence of plaintiff's carpal tunnel syndrome require remand on the additional ground that they are harmful. Proper handling of such evidence could reasonably be expected to have led to a different determination of plaintiff's RFC and thereby a different outcome of his claim. See, e.g., Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). For example, had the ALJ properly addressed the evidence regarding plaintiff's carpal tunnel syndrome, it is reasonable that the ALJ could have limited plaintiff to occasional handling and fingering. Such a limitation could significantly erode the occupational base available to plaintiff—who the ALJ found was restricted to understanding and performing simple, routine, repetitive tasks (Tr. 27 ¶ 4)—since "[m]ost unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5 (1983); see also 20 C.F.R. § 416.968(a) (defining unskilled work). Indeed, the vocational expert testified that if the hypothetical person with plaintiff's profile were limited to occasional handling and fingering, along with occasional feeling, pushing, pulling, and operating hand controls, he would be precluded from any work. Tr. 229. The vocational expert also testified that the two sedentary occupations he identified a person with plaintiff's profile as being able to perform were the only two such occupations. Tr. 227 (vocational expert responding affirmatively to the ALJ's inquiry, "So there would be no other sedentary jobs that would fit this particular profile?").
V. ALJ'S HYPOTHETICAL TO THE ALJ
A. Applicable Legal Principles
A hypothetical question is proper if it adequately reflects a claimant's RFC for which the ALJ had sufficient evidence. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005); Baker v. Astrue, No. SAG-10-145, 2012 WL 12751, at *4 (D. Md. 3 Jan. 2012). Testimony by a vocational expert based on an incomplete hypothetical may not constitute substantial evidence supporting the ALJ's step-five determination. See Lyles v. Colvin, Civ. Act. No. 1:14-2042-RMG, 2015 WL 1931398, at *15 (D.S.C. 7 Apr. 2015) (citing Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir. 1979)), rep. & recomm. adopted, 2015 WL 1931398, at *1 (28 Apr. 2015).
B. Analysis
The hypothetical to the vocational expert eliciting the testimony upon which the ALJ relied at step five of the sequential analysis reads in relevant part:
For the first hypothetical, I'll ask you to assume an individual of the Claimant's age, education and work history, who this hypothetical is able to perform work at the sedentary range of exertion, as it's defined in the regulations which generally includes lifting, carrying, pushing and/or pulling up to ten pounds occasionally, less than ten pounds frequently; sitting for up to six hours in a typical eight-hour workday; standing and/or walking for periods up to two hours each in a typical eight-hour workday; each of these activities with normal breaks. Assume the individual is limited to occasional overhead reaching bilaterally, reaching in all other directions; pushing, pulling, operating hand controls; handling, fingering, feeling bilaterally is frequent for this hypothetical . . . .Tr. 225 (emphasis added).
Plaintiff contends that the hypothetical is ambiguous by failing to make clear which activities are subject to the "occasional" limitation and which are subject to the "frequent" limitation. Tr. 225. The contention is unconvincing. The hypothetical makes sufficiently clear on its face that the occasional limitation applies only to overhead reaching and that the frequent limitation applies to the other activities set out in the portion of the hypothetical set out above, namely, reaching in all other directions, pushing, pulling, operating hand controls, handling, fingering, and feeling bilaterally. Further, this reading tracks the ALJ's RFC determination. See Tr. 27 ¶ 4.
In addition, it is apparent that the vocational expert ascribed this reading to the hypothetical. It is consistent with the demands of the two occupations the vocational expert testified a person with plaintiff's profile could perform. Moreover, as indicated, the vocational expert testified that if the limitation for handling and fingering, along with feeling, pushing, pulling, and operating hand controls, were reduced to occasional a person with plaintiff's profile would be unable to perform the two occupations he had identified. See Tr. 229. Obviously, if the vocational expert had understood the original limitation to be occasional, there would have been no change in his opinion about the person's ability to perform the two occupations.
Although the hypothetical adequately reflects the ALJ's RFC determination, because the RFC determination is erroneous, for the reasons previously discussed, this hypothetical is also erroneous. The erroneous nature of the hypothetical therefore provides an additional basis for remand.
VI. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 25) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 29) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 4 March 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 19th day of February 2020.
/s/_________
James E. Gates
United States Magistrate Judge