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Bernier v. Colvin

United States District Court, D. Maine

April 17, 2015

HOLLY AULD BERNIER, Plaintiff.
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of returning to past relevant work as a medical transcriber. The plaintiff seeks remand on the basis that the administrative law judge erred in failing to find an upper extremity limitation in determining the plaintiff's residual functional capacity ("RFC") - an error that she contends was not harmless. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Statement of Errors") (ECF No. 8) at 2-8. I agree and, accordingly, vacate the decision of the commissioner and remand this case for further development.

Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 14; that she had severe impairments of neuropathy, osteoarthritis, degenerative disc disease, myoclonic jerks, and Fowler syndrome/detrusor sphincter dissenergia, Finding 3, id.; that she retained the RFC to perform less than the light range of work as defined in 20 C.F.R. § 404.1567(b) and could lift and carry 20 pounds occasionally and 10 pounds frequently, could stand and walk for two hours in an eight-hour day and sit for six hours in an eight-hour day, could never climb a ladder, rope, or scaffold but could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, would need to be able to use the restroom at will, and would need to avoid work at unprotected heights, temperature extremes, humidity, and wetness, Finding 5, id. at 16; that she was capable of performing past relevant work as a medical transcriber, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 19; and that she, therefore, had not been disabled from October 14, 2010, her alleged onset date of disability, through the date of the decision, October 23, 2012, Finding 7, id. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); SSR 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

The plaintiff's complaint also implicates Step 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the 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." Id. (quoting Social Security Ruling 85-28).

I. Discussion

The administrative law judge acknowledged that the plaintiff had been diagnosed with mild bilateral carpal tunnel syndrome ("CTS"), confirmed by the results of electromyography ("EMG") testing on January 17, 2012. See Record at 14, 376-77. She stated, "In light of the fact that the [plaintiff's] carpal tunnel syndrome is only mild in nature, it is considered non-severe, in that it only causes minimal limitations in the [plaintiff's] ability to perform work-related activities." Id. at 14-15. While she found that the plaintiff had severe impairments of neuropathy and myoclonic jerks, see Finding 3, id. at 14, she assessed no resulting limitations, see id. at 17-18.[2]

She adopted an RFC consistent with the opinions of two agency nonexamining consultants, Carol Eckert, M.D., and Robert Hayes, D.O. See id at 18, 60-63, 70-73. However, neither Dr. Eckert, whose opinion is dated September 12, 2011, nor Dr. Hayes, whose opinion is dated January 19, 2012, had the benefit of review of the January 2012 EMG test results or the plaintiff's diagnosis of mild CTS, and neither assessed any manipulative limitations. See id. at 58-60, 62, 68-70, 72. She rejected the September 28, 2012, opinion of treating physician Dana Little, M.D., the only medical expert who factored the plaintiff's CTS into an RFC opinion. See id. at 18, 433-36. Dr. Little found, in relevant part, that the plaintiff could only occasionally finger and handle. See id. at 434.

As the plaintiff observes, see Statement of Errors at 2, the job of medical transcriber requires constant fingering and frequent handling, see Dictionary of Occupational Titles ("DOT") § 203.582-058 (U.S. Dep't of Labor, 4th ed. rev. 1991). Thus, the adoption of the manipulative limitations assessed by Dr. Little would preclude performance of that job.

At oral argument, the plaintiff's counsel contended that two cases issued since the filing of the statement of errors are dispositive of this appeal, Tilton v. Colvin, No. 1:14-cv-00153-JCN, 2015 WL 181781 (D. Me. Jan. 14, 2015), and Fox v. Colvin, Civil No. 2:13-cv-398-DBH, 2014 WL 5465343 (D. Me. Oct. 28, 2014). I agree.

In Tilton, this court held that, in assessing a claimant's RFC, an administrative law judge improperly interpreted raw medical data, warranting remand, in circumstances in which he rejected the opinions of two agency consultants, rejected the opinion of a treating physician, failed to cite any expert opinion as the basis for his RFC finding, and failed to address and thus failed to seek an expert consultation regarding the claimant's axonal neuropathy. See Tilton, 2015 WL 181781, at *2. See also Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (Although an administrative law judge is not precluded from "rendering commonsense judgments about functional capacity based on medical findings, " he or she "is not qualified to assess residual functional capacity based on a bare medical record.").

In Fox, this court held that, in assessing a claimant's RFC, an administrative law judge improperly interpreted raw medical data, warranting remand, in circumstances in which she found that the claimant could handle and reach frequently bilaterally, her finding was unsupported by any medical expert opinion of record, she failed to supply good reasons for rejecting the opinion of a treating physician that the claimant could only occasionally handle and reach, and a vocational expert testified that a limitation to occasional handling and reaching, coupled with other restrictions posited by the administrative law judge, would eliminate all work. See Fox, 2014 WL 5465343, at *2-*3.

In this case, the administrative law judge's finding that the plaintiff's bilateral CTS and/or neuropathy imposed no restrictions likewise was unsupported by medical opinion evidence. The commissioner disputes this, arguing that two treating physicians, neurologists Edward A. Waybright, M.D., and Jagjivan Mehta, M.D., both characterized the plaintiff's CTS as "mild." See Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 9) at 13; see also Record at 377, 431. She cites Richardson v. Astrue, No. 1:11-cv-382-JAW, 2012 WL 2923544, at *3 (D. Me. June 30, 2012) (rec. dec., aff'd July 18, 2012), for the proposition that this court held that an administrative law judge did not interpret raw medical data when the conclusions he drew from EMG testing were taken directly from a medical expert's interpretation of that testing. See id. Richardson is distinguishable in that, there, the administrative law judge relied on the testimony of a medical ...


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