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Choate v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 24, 2018

LOUISE M. CHOATE, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          John Corbett O'Meara United States District Judge

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKT. 14, 18)

          STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On January 11, 2017, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). This case was referred to the undersigned magistrate for all pre-trial purposes. (Dkt. 3). This matter is before the Court on cross-motions for summary judgment. (Dkt. 14, 18). Plaintiff also filed a reply in support of her motion for summary judgment. (Dkt. 19).

         B. Administrative Proceedings

         Plaintiff filed the instant claims for a period of disability and disability insurance benefits on January 21, 2014, alleging disability beginning April 1, 2005. (Tr. 13).[1] The claim was initially disapproved by the Commissioner on April 3, 2014. (Tr. 13). Plaintiff requested a hearing, and on August 24, 2015, she appeared and testified, with the assistance of her attorney, before Administrative Law Judge (ALJ) B. Lloyd Blair, who considered the case de novo. (Tr. 25-45). Plaintiff amended her alleged onset date to June 30, 2009. (Tr. 15). In a decision dated November 12, 2015, the ALJ found that plaintiff was not disabled. (Tr. 10-21). Plaintiff requested a review of this decision, and the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on November 7, 2016. (Tr. 1-6); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be GRANTED, that defendant's motion for summary judgment be DENIED, that the findings of the Commissioner be REVERSED, and that this matter be REMANDED, pursuant to Sentence Four.

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Plaintiff was born in 1959 and was 51 years old on the date last insured, December 31, 2010. (Tr. 15, 19). Plaintiff had past relevant work as a housekeeper, which is classified as medium work. (Tr. 19). Plaintiff stopped working on April 1, 2005 because of her conditions. (Tr. 128). The ALJ applied the five-step disability analysis to plaintiff's claim and found at step one that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date through the last date insured. (Tr. 15). At step two, the ALJ found that plaintiff's obesity, degenerative disc disease of the lumbar spine, status-post digit reattachment surgery - non dominant left hand, osteoarthritis, right hip, and fibromyalgia were severe impairments. Id. At step three, the ALJ found no evidence that plaintiff's combination of impairments met or equaled one of the listings in the regulations. (Tr. 16). The ALJ determined that plaintiff had the following residual functional capacity (RFC):

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can only occasionally bend, twist, and turn at the waist; and she can never climb ladders, ropes, or scaffolds. She must avoid walking on uneven surfaces and can never use foot controls. She can frequently, but not constantly, handle and finger objects with her non-dominant left upper extremity; and she cannot perform commercial driving.

(Tr. 26). At step four, the ALJ concluded that plaintiff could perform her past relevant work. (Tr. 19). Finally, the ALJ concluded that plaintiff has not been under a disability from the amended alleged onset date through the last date insured. (Tr. 20-21).

         B. Plaintiff's Claims of Error

         According to plaintiff, the ALJ's finding that plaintiff retains the RFC to “frequently but not constantly handle and finger objects with her non-dominant left extremity . . .”, despite amputation and reattachment of four of her fingers is not supported by substantial evidence. The medical evidence confirms that Ms. Choate suffered amputation of her 2nd, 3rd, 4th and 5th digits of her left hand from a table saw accident at home in April 2007. (Tr. 373-76). X-rays showed multiple comminuted fractures and the fingers were surgically reattached. Id. Despite the surgery and some physical therapy, plaintiff says her left hand remains severely deformed and nearly functionally useless. As such, she cannot frequently use her left hand as the ALJ found.

         According to plaintiff, the medical evidence includes her hospital admission on April 27, 2007, when she “sustained a left hand multiple amputation wound including the second, third, fourth and fifth digits, ” which also involved “both extensor and flexor tendons . . . the joints and bony tissue and nailbed . . . ., ” while she was using a table saw at home. (Tr. 240-43, 373-75). The operative report reflects a detailed surgical account that included placement of “[m]ultiple K-wires” . . . for each finger, ” and repair of the extensor and flexor tendons. (Tr. 375-76). Postoperatively, plaintiff followed up with Mohamad H. Bazzi, M.D., covering six office visits from April 30 to August 27, 2007, which reflect her consistent participation in occupational therapy. (Tr. 363-68). On August 27, 2007, Dr. Bazzi recorded that Ms. Choate was . . . very anxious complaining of persistent pain with only gradual recovery noting that she is having a very difficult time going through her occupational therapy and rehabilitation.” (Tr. 368). On examination, Dr. Bazzi observed that plaintiff “is a long way from normal and full recovery, ” noting that her “left hand shows only gradual increase in range of motion especially at the MCP joints, ” and “[t]he second and third digits are still more stiffer (sic) than the fourth and fifth digits” and “she is able to slightly better oppose the digits to the thumb and is able to grab some objects, but she is a long way from normal and full recovery.” Id. In February 2009, Dr. Athens commented on plaintiff's history of left finger disfigurement secondary to trauma two years ago and noted that her finger was disfigured. (Tr. 328). When she was examined in March 2009, Dr. Torregross reported that plaintiff has had “chronic persistent problems with hand function present” since the 2007 injury and reattachment surgery. (Tr. 349). On examination, she had extensive degenerative changes in her left hand. Id. A claims interviewer observed on February 4, 2014 that plaintiff had trouble using her hands and that her “pointer finger in the left hand is severely bent over … .” (Tr. 117-18). Plaintiff also testified that since the hand surgery, she has no strength in her left hand and her fingers are always curled and she can only use her thumb. (Tr. 36). She cannot extend her fingers, cannot grasp, needs help dressing, she uses a grabber assistive device to put on socks and dress and cannot zip or tie shoes. (Tr.32, 33, 35-39). Thus, the severe problems with plaintiff's left hand persisted both before and after her date last insured of December 31, 2010.

         In his decision, the ALJ cited the medical evidence referenced above, including Dr. Bazzi's notation in August 2007 that “the claimant was still ‘a long way from a normal and full recovery'” and Dr. Torregrosa's March 2009 evaluation where “[t]he claimant complained of chronic persistent problems with left hand function since her reattachment surgery, exhibiting left hand degenerative changes and right hand soft tissue swelling.” (Tr. 17-18). Despite this evidence, the ALJ claimed:

[w]hile the amputation and reattachment of the digits of her left hand appears to have initially significantly limited her manipulative abilities with that hand, the hand progressively improved through the medical record, and though it does not appear to have recovered to is level pre-amputation, there is no evidence that the claimant cannot perform manipulative abilities, nor is it her dominant hand.

(Tr. 19). According to plaintiff, the ALJ's finding of progressive improvement is simply not supported by the medical evidence cited by the ALJ, particularly the: (1) August 2007 progress note that she continued to have reduced range of motion and plaintiff was only was able to slightly better oppose her digits to her thumb only and could grab some objects, and was still a “long way from normal and full recovery”; (2) the March 2009 evaluation documenting degenerative changes of an “extensive nature” of the left hand with “[c]hronic persistent problems” since the reattachment surgery; and (3) the observations of the claims worker that the “pointer finger in the left hand is severely bent over . . .” (Tr. 117, 349, 369). Given this evidence, plaintiff maintains that her hand did not, in fact, “progressively improve” as the ALJ found. (Tr. 19). And, plaintiff contends that is certainly does not equate to an ability to finger and handle frequently as the ALJ found, rather it shows she could barely, i.e., rarely, finger, handle and grasp.

         In a related claim of error, plaintiff complains that there was no physician's opinion or other medical opinion suggesting that she could frequently use her left hand. As set forth in SSR 83-10, light work entails the “use of arms and hands to grasp and to hold and turn objects” and “[m]ost unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.” SSR 83-10, 1983 WL 31251 (S.S.A. 1983). Moreover, “[m]ost unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity.” SSR 96-9p, 1996 WL 374185 (S.S.A. 1996). Plaintiff maintains that she cannot do the required fine manipulations, handling and grasping required of light or sedentary jobs. The ALJ determined plaintiff could perform other light jobs in representative “light unskilled occupations” such as packer, bench assembler, and inspector. (Tr. 20). In so finding, the ALJ relied on the testimony of a vocational expert (VE) who confirmed that each of these jobs required frequent, bilateral handling and would be precluded if the individual were limited to occasional fingering and handling. (Tr. 20, 42, 44). The VE further testified that there are no jobs available for an individual who could not frequently handle with both hands. (Tr. 44). Thus, plaintiff maintains that the ALJ's finding that she could perform these three representative jobs, all of which require frequent fingering and handling, cannot be sustained, particularly where the record is devoid of any RFC or medical source statements from any medical providers, whether treating, consulting, or non-examining, which supports a light work finding. Plaintiff points out that there was no State agency doctor opinion upon which the ALJ did or could have relied nor any consultative examination or medical consultant's opinion sought by the ALJ. Since the record did not contain any other assessment of plaintiff's functional limitations, plaintiff contends that the ALJ took on the role of medical expert and improperly translated the raw medical data into functional limitations. Thus, the ALJ's RFC finding cannot be sustained.

         Plaintiff points to Porzondek v. Secretary of Health and Human Servs., 1993 WL 15135 at *2 (6th Cir. Jan. 22, 1993) (unpublished) in support of her argument. In Porzondek, the medical evidence of record was inadequate to form a basis for the ALJ's finding regarding the claimant's residual functional capacity. Id. The record did not expressly describe the claimant's residual functional capacity, nor did it provide any significant direct evidence regarding his flexibility or strength. Id. The Commissioner's failure to order a consultative examination or to seek the advice of a medical examiner resulted in a failure to meet his burden of proof. Id. Plaintiff also relies on Gross v. Comm'r of Soc. Sec., 2017 WL 1151099 (E.D. Mich. Mar. 28, 2017), the court held that the ALJ's RFC determination was not supported by substantial evidence and remanded “to obtain a proper medical source opinion and for the redetermination of Plaintiff's RFC” and, if necessary, ordering additional opinion evidence. Id. at *5. The court commented that the district court cases cited above “do not require the ALJ to entirely base his or her RFC finding on the opinion of a physician - they require the ALJ's RFC assessment be supported by substantial evidence and not merely on the ALJ's own medical interpretation of the record.” Id. at *4. The court noted that an ALJ cannot substitute his or her opinion for the medical experts. Simpson v. Comm'r of Soc. Sec., 344 Fed.Appx. 181, 194 (6th Cir. 2009) (finding that the ALJ impermissibly substituted the treating physician's medical opinion with her own where he assessed the potential pain pelvic adhesions would cause); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay person . . . the ALJ was simply not qualified to interpret raw medical data in functional terms” where “no medical opinion supported the [RFC] determination.”). The court further held that this was not a case “where the medical evidence shows relatively little physical impairment, such that the ALJ can make a commonsense judgment about Plaintiff's functional capacity, ” citing the “significant evidence in the record indicating that Plaintiff was admitted to the hospital for five days due to leg pain and thigh rash, reporting severe pain”; “underwent treatment for back and shoulder pain”; “had a tender cervical spine with limited flexion and extension” and “suffered from weakness in the right upper extremity.” Id. at *5. Accordingly, the court concluded that “although there are likely instances in which an ALJ can formulate an RFC without the aid of opinion evidence, this is not one of those cases” and remanded for further development. Id.

         Here, plaintiff asserts that the evidence of record in this case is similar, as noted above, as it includes several MRIs and x-rays which require medical expertise to interpret; an admission for finger reattachment surgery with subsequent evidence documenting extensive degenerative changes of the left hand; and treatment for back, shoulder and knee pain and fibromyalgia. Thus, plaintiff asks the ...


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