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Smith v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

January 2, 2018

PAUL J. SMITH, Plaintiff,

          George C. Smith, Judge.



         Plaintiff, Paul J. Smith, brings this action under 42 U.S.C. §' 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for social security disability insurance benefits and supplemental security income. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 21), the Commissioner's Memorandum in Opposition (ECF No. 24), and the administrative record (ECF Nos. 12-14). For the reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner of Social Security's nondisability finding and REMAND this case to the Commissioner and the administrative law judge under Sentence Four of § 405(g).

         I. BACKGROUND

         Plaintiff filed his application for a period of disability and disability insurance benefits, as well as a Title XVI application for supplemental security income, on May 14, 2013. He alleged disability beginning on December 14, 2011, primarily due to impairment of his left shoulder. The Social Security Administration initially denied his application and again upon reconsideration. Plaintiff requested a de novo hearing before an administrative law judge.

         Administrative Law Judge John L. Shailer (the “ALJ”) held a hearing on June 16, 2015, at which Plaintiff, represented by counsel, appeared and testified. (R. at 728-46). Medical Expert Dr. Ronald E. Kendrick, M.D. (“ME”), and Vocational Expert Hermona C. Robinson (“VE”), also appeared and testified. (Id.) Plaintiff testified that he had problems with both shoulders and that his left shoulder was worse. He indicated that he was left-handed. When asked how much he could pick up and carry with both hands, Plaintiff responded “Probably around 30 pounds, maybe, as long as it's a short distance, ” but that he could not pick that weight up repeatedly. (R. at 735.) He estimated that he could “probably . . . try” lifting 10 pounds repeatedly. (Id.) When the ALJ pointed out that 10 pounds is a little more than a gallon of milk, Plaintiff responded “That's a little heavy.” (Id.)

         The ME opined that Plaintiff retained the capacity to work “around light level” with no reaching overhead and limited to frequent reaching otherwise. When Plaintiff's counsel pointed out that state-agency reviewing physician Dr. Bowles had opined that Plaintiff retained the capacity for only occasional reaching with his left upper extremity, the ME responded, “[Plaintiff] was discharged from Dr. Kovack in 13f, 4, November 2012, he basically had full range of motion of his left shoulder with occasional pain. I don't see how that translates into those restrictions.” (R. at 739-740.)

         The VE testified that a hypothetical individual of Plaintiff's age, education, and work experience and with the residual functional capacity (“RFC”) the ALJ ultimately assessed could not perform Plaintiff's past work, but could perform other full-time, competitive work such as garment sorter, with 120, 000 positions in the national economy; marker, with 115, 000 positions in the national economy; and packager, with 250, 000 positions in the national economy. The VE further testified modification of the RFC to contain a limitation to only occasional reaching rather than frequent reaching would preclude competitive employment. (R. at 745.)

         On August 14, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 29-43.) At step one of the sequential evaluation process, [1] the ALJ found that Plaintiff had not engaged in substantially gainful activity since his alleged onset date of December 14, 2011. The ALJ found that Plaintiff had the severe impairments of left shoulder torn rotator cuff, status post-surgery, and a right shoulder tear. The ALJ concluded that Plaintiff did not, however, have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four of the sequential process, the ALJ set forth Plaintiff's RFC as follows:

[Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, he can lift ten pounds frequently and 20 pounds occasionally. However, he is further limited in that he cannot do overhead reaching with his bilateral upper extremities, but he can frequently reach in all other directs.

(R. at 32.)

         In reaching this RFC, the ALJ accorded “great weight” to the opinion of Medical Expert Dr. Kendrick, reasoning that “[t]he medical evidence supports the residual functional capacity . . . ” and specifically citing the February 2013 functional capacity evaluation prepared by Ms. Brailer and also the February opinion of Dr. Altic, which was premised upon the results of Ms. Brailer's evaluation. (R. at 38.) The ALJ noted that Ms. Brailer had opined that Plaintiff was limited to reaching with his left arm on a frequent basis below his shoulder level and an occasional basis overhead.

         The ALJ assigned “little weight” to state-agency consultative examiner Dr. Nancy Renneker, M.D.'s opinion “because it is inconsistent with the opinions of the State Agency reviewing physicians, who found initially that [Plaintiff] was capable of medium work with occasional reaching with the left upper extremity” and who later, upon reconsideration, “found that he was limited to light work with no overhead reaching and with occasional reaching with the left upper extremity.” (R. at 39.) The ALJ also reasoned that Dr. Renneker's opinion was not supported by her own evaluation, citing to an earlier November 2012 evaluation in which Dr. Renneker opined that Plaintiff had an 18% left upper extremity impairment based upon the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment.[2] (R. at 40 (citing Renneker Nov. 2012 IME, R. at 629).) As relevant here, Dr. Renneker opined in April 2014 that Plaintiff could not engage in repetitive use of either arm for any task. (R. at 626.)

         The ALJ likewise assigned “little weight” to treating physician Dr. David Brill, M.D.'s 2013 physical capacity evaluation in which he opined that was limited to only occasional reaching. (R. at 40.) The ALJ pointed out that Dr. Brill referenced the functional capacity evaluation Ms. Brailer performed, but that Ms. Brailer's evaluation was inconsistent with the more severe limitations Dr. Brill opined. The ALJ likewise rejected Dr. Brill's June 2014 opinion ...

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