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Slaughter v. Colvin

United States District Court, M.D. Pennsylvania

February 9, 2017

MICHELE SLAUGHTER, Plaintiff,
v.
CAROLYN W. COLVIN Defendant.

          Nealon Judge

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge

         I. Introduction

         This case, which comes before us for judicial review of a determination denying the plaintiff, Michele Slaughter's, claim for Disability Insurance Benefits under Title II of the Social Security Act, presents a series of material factual ambiguities relating to the plaintiff's ability to perform work given limitations imposed by the Administrative Law Judge (ALJ) on her use of her dominant right arm. Ms. Slaughter's disability application was premised upon an array of physical and emotional limitations, including limitations on her ability to lift and reach with her dominant hand, her right hand. An examining consulting physician found that Slaughter had severe restrictions in her ability to lift and carry. (Tr. 363-368.) Slaughter also testified that she had significant limitations on her ability to lift and carry, especially with her right arm, indicating that she could not lift and carry objects heavier than a loaf of bread. While the ALJ stated that he gave this evidence only limited weight, (Tr. 18-20), the ALJ's decision appeared to deem these limitations to be both significant and credible, at least with respect to Slaughter's dominant right arm impairment, since the ALJ fashioned a residual functional capacity (RFC) assessment for Slaughter which limited her to light work, “except no overhead work or use with the right arm.” (Tr. 16.)(emphasis added.)

         The ALJ then presented this residual functional capacity assessment to a vocational expert who testified that there were substantial available positions in the national economy that Slaughter could perform with these right arm limitations. (Tr. 43-45.) The vocational expert identified three such positions: poultry eviscerator, bakery worker, and bindery machine feeder. (Tr. 21, 43-45.) Yet, while the vocational expert identified these three positions as work that Slaughter could perform with this right arm restriction, the positions identified by the expert required either constant, frequent, or occasional reaching and handling, and the vocational expert further testified that Slaughter could not perform any of these tasks as a right hand dominant person if she was limited in her use of her right hand to reach. (Tr. 45.) Despite these material inconsistencies between the vocational expert testimony concerning the ability of Slaughter to perform this jobs, the Dictionary of Occupational Titles (DOT) exertional standards for these positions, and the ALJ's admonition that Slaughter was limited to light work, “except no overhead work or use with the right arm, ” (Tr. 16)(emphasis added), the ALJ found based upon the vocational expert testimony that Slaughter could perform substantial jobs in the national economy and concluded that she was not disabled. (Tr. 21-22.)

         On the current factual record, for the reasons set forth below, we are unable to reconcile the ALJ's residual functional capacity assessment, with either the DOT exertional standards for these positions, or the vocational expert testimony, which seems to assert that Slaughter could perform these tasks while also stating at the same time that she could not undertake this work if she is limited in her dominant arm use. Accordingly, it is recommended that this case be REMANDED for further consideration by the Commissioner.

         II. Statement of Facts and of the Case

On June 13, 2013, Michelle Slaughter applied for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§401-434, alleging disability since March 23, 2013, due to depression, anxiety, PTSD, migraine, headaches and a shoulder injury. (Tr. 117-118, 127.) At the time of this disability application, Slaughter was approximately 50 years old and was, therefore, defined as an individual closely approaching advanced age as of the date of the alleged onset of her disability. (Tr. 20.) Slaughter is also a right hand dominant individual. (Tr. 45.)

         As part of the disability evaluation process, Slaughter underwent an orthopedic consultative evaluation with Dr. VanGiesen on October 28, 2013. During this examination, Slaughter complained of right shoulder pain and described the pain as constant, sharp and throbbing in nature when she uses her rights arm. (Tr. 363.) Slaughter's other presenting complaints were identified as hearing loss, chest pressure, cough, nausea, headache, anxiety, depression, insomnia, memory loss, joint pain and change in appetite and weight gain. (Tr. 363, 364.) In his examination, Dr. VanGiesen diagnosed Slaughter with right shoulder pain and impingement with right shoulder bursitis and subacromial biceps tendinitis. (Tr. 364.) In an attached medical source statement, Dr. VanGiesen further opined that Slaughter must not lift or carry any weight as lifting causes pain in her right shoulder. (Tr. 365.) The doctor also concluded that Slaughter should never use her right hand for reaching, (Tr. 367.), and found that Slaughter must never climb ladders or scaffolds, balance, stoop, kneel, crouch or crawl. (Tr. 368.)

         On February 6, 2015, a hearing was conducted before an ALJ on Slaughter's disability application. (Tr. 23-46.) Slaughter testified at this hearing, describing her limitations on her ability to use her right arm to lift, reach, and pull in ways that were consistent with the expert opinion of Dr. VanGiesen, and stated that the heaviest thing she could pick up with her right hand was a loaf of bread. (Tr. 35.)

         At this hearing, and in his subsequent decision in this case, the ALJ seemed to credit this evidence which revealed that Slaughter had severe limitations with respect to the use of her right hand and arm. Thus, in questioning a vocational expert, who also testified at this February 6, 2015 hearing, the ALJ fashioned a residual functional capacity (RFC) assessment for Slaughter which limited her to light work, “except no overhead work or use with the right arm.” (Tr. 16, 43-44.) The vocational expert then testified that there were substantial available positions in the national economy that Slaughter could perform with these right arm limitations. (Tr. 43-45.) The vocational expert identified three such positions: poultry eviscerator, bakery worker, and bindery machine feeder. (Tr. 21, 43-45.) Yet, while the vocational expert identified these three positions as work that Slaughter could perform, the Dictionary of Occupational Titles, (DOT) which the vocational expert testified she was relying upon in rendering her opinion, described these three jobs in ways which were inconsistent with severe right arm exertional limitations. For example, according to the DOT the position of a poultry eviscerator requires constant reaching and handling. DICOT, 525.687-022. The job of a bindery machine feeder demands frequent reaching and handling. DICOT 653.686-026. Employment as a bakery worker, in turn, demands occasional reaching and handling. DICOT 524.687-022.[1] In her direct testimony to the ALJ the vocational expert did not reconcile the exertional demands of these three jobs in terms of reaching and handling with the ALJ's hypothetical question, which prescribed no use of Slaughter's right arm. While the vocational expert's direct testimony contained this latent inconsistency, on cross examination by Slaughter's counsel, when asked if Slaughter could perform these tasks if she could not reach with her right hand, the vocational expert testified that if Slaughter was a right hand dominant individual she could not perform any of these jobs. (Tr. 45.) Thus, cross examination heightened the internal inconsistencies in this opinion evidence.

         Following this hearing, on March 6, 2015, the ALJ issued an opinion denying Slaughter's application for disability benefits. In that decision, the ALJ found that Slaughter's shoulder impairments, along with a series of other medical conditions, were severe impairments at Step 2 of the five step analytical process which applies to disability claims. (Tr. 13.) The ALJ then considered Dr. VanGiesen's expert opinion which found that Slaughter had severe restrictions in her ability to lift and carry, (Tr. 363-368.), as well as Slaughter's testimony that she had significant limitations on her ability to lift and carry, especially with her right arm, and that she could not lift and carry objects heavier than a loaf of bread with her right arm. (Tr. 35.) While the ALJ stated that he gave this evidence only limited weight and credibility, (Tr. 18-20.), the ALJ's decision also appeared to deem these limitations significant and credible, at least with respect to Slaughter dominant right arm impairment, since the ALJ fashioned a residual functional capacity (RFC) assessment for Slaughter which limited her to light work, “except no overhead work or use with the right arm.” (Tr. 16.)(emphasis added.)

         The ALJ then found based upon the vocational expert testimony that Slaughter could perform substantial jobs in the national economy, including the jobs of poultry eviscerator, bakery worker, and bindery machine feeder. On the basis of these findings, the ALJ concluded that Slaughter was not disabled and denied her disability application. (Tr. 21-22.) The ALJ's decision did not reconcile the disparity between the vocational expert opinion testimony and the actual exertional demands of the jobs identified by the vocational expert as defined by the Dictionary of Occupational Titles, jobs which were described as requiring constant, frequent or occasional reaching and handling. The ALJ's decision also did not address the vocational expert's testimony that a person who could not use her right, dominant, arm could not perform these tasks.

         This appeal followed. (Doc. 1) This case is fully briefed by the parties, (Docs. 10-12) and is, therefore, ripe for resolution. While Slaughter has advanced a series of arguments in support of her appeal, we find at the outset that remand is required in this case to resolve the disparities between the ALJ's residual functional capacity assessment which proscribed “no overhead work or use with the right arm, ” (Tr. 16.)(emphasis added); the DOT exertional standards for the positions identified by the vocational expert, all of which required significant reaching and handling; and the vocational expert testimony, which seemed to assert that Slaughter could perform these tasks while also stating that she could not ...


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