United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
LANNY KING, Magistrate Judge.
Adriena Powell filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of an administrative decision of the Commissioner of Social Security, who denied her application for disability benefits. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals.
Ms. Powell asserts that the administrative law judge (ALJ) made several errors in his opinion. In her fact and law summary, Plaintiff focuses upon her allegedly disabling mental impairments and other subjective symptoms. Docket 31. The Court finds those arguments to be unpersuasive.
However, in her second supplemental brief, she contends that the vocational hypothetical upon which the ALJ's denial decision was based failed to include the ALJ's own finding that "the claimant is unable to lift  more than 10 pounds on the right due to adhesive capsulitis" (AR, p. 20). Docket 35. This argument is persuasive.
Therefore, the Court will REMAND this matter to the Commissioner for a new decision and presentation of a new vocational hypothetical that contemplates all of the functional limitations supported by the administrative record and found credible by the ALJ.
Background Facts and Procedural History
In November, 2007, Plaintiff was last gainfully employed. At that time, she was working at a Burger King in Issaquah, Washington, and a stack of boxes fell and hit her on the head and shoulders.
Plaintiff filed a claim for Social Security disability benefits due to adhesive capsulitis of the right shoulder,  bilateral carpel tunnel syndrome, bipolar disorder, and other impairments.
In 2011, ALJ Verell Dethloff issued a decision denying Plaintiff's claim. Administrative Record (AR), pp. 14-32.
Plaintiff moved to Fort Campbell, Kentucky.
In September, 2012, the Appeals Council declined to disturb the ALJ's decision, thereby rendering his decision the Commissioner's final decision, which is presently before the Court upon judicial review. AR, pp. 1-3.
In October, 2012, Plaintiff filed her complaint in this Court. Docket 1.
In June and July, 2013, the parties submitted their fact and law summaries, which presupposed that Sixth Circuit case law governs. Docket nos. 19 and 20.
In August, 2013, the Court entered a sua sponte Order For Further Briefing on the question of whether Ninth or Sixth Circuit law applies. Docket 21.
In their supplemental briefs, the parties agree that Ninth Circuit law applies, citing Pierce v. Colvin, 2013 WL 3326716 (E.D.N.C). Docket nos. 22 and 23.
In October and November, 2013, the parties submitted new fact and law summaries premised on Ninth Circuit law. Docket nos. 31 and 32.
In November, 2013, based upon a preliminary review of the record, the Court observed an apparent inconsistency in the ALJ's findings and the controlling vocational hypothetical. The Court entered an Order For Further Briefing regarding Plaintiff's right-shoulder adhesive capsulitis and its impact upon her ability to use her right upper extremity. Docket 33.
The parties' second supplemental briefs addressing this matter are at Docket nos. 35 and 37.
This matter is ripe for determination.
The controlling vocational hypothetical was incomplete.
The ALJ acknowledged that Plaintiff's right-shoulder impairment results in significant limitations affecting her ability to use her right upper extremity: "The claimant has the ability to occasionally lift and/or carry up to 20 pounds, and frequently lift and/or carry up to 10 pounds. However, the claimant is unable to lift no (sic.) more than 10 pounds on the right due to adhesive capsulitis.... The claimant is also limited to occasional handling and fingering." AR, p. 20.
The vocational expert (VE) testified that, in combination, these limitations would significant erode the vocational base for even sedentary work because the 10-pound exertional limitation on the right would tend to limit the individual to sedentary jobs and the bilateral handling/fingering limitation would erode the number of available sedentary positions:
VE: There are jobs that - well, Your Honor, I'm looking at the - in terms of the manipulative limitation to occasional handling and fingering and then lifting on the right side being limited to 10 pounds, that would suggest to me that I'd be looking at jobs that are in the sedentary, unskilled level along with some of the other factors. And if someone is limited to occasional handling and fingering, ... there really are not any jobs that I can identify.
(AR, pp. 59-60).
The following exchange then occurred:
ALJ: Okay. Tell me again what limits us to sedentary.
VE: Well, I think the 10-pound limitation on the right side in terms of strength or lifting would limit - would ...