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Mathers v. Berryhill

United States District Court, W.D. Kentucky, Louisville Division

March 29, 2019

BRIAN D. MATHERS PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. Plaintiff's brief is at Docket # 16, and Defendant's fact and law summary is at Docket # 19. 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. (Docket # 17.) The matter is ripe for determination.

         Plaintiff alleges disability, in part, due to degenerative disc disease of the cervical and lumbar spine and chronic obstructive pulmonary disease (COPD). [Administrative Record (“AR”) at 17.] The Administrative Law Judge (“ALJ”) rejected the opinions of Plaintiff's treating nurses and every other medical opinion regarding his physical residual functional capacity (RFC) and found that he can perform light work. The facts of this case do not support a finding that Plaintiff has relatively little physical impairment, such that the ALJ was in a position to make a commonsense judgment (based solely on non- medical factors) that Plaintiff is capable of sustaining light work. Therefore, the Court will REMAND this matter to the Commissioner for REDETERMINATION of Plaintiff's RFC.

         Application of the Appendix 2 rules in this case

         A claimant's residual functional capacity (RFC) refers to “the most [he] can still do despite [his] limitations” on a sustained basis. 20 C.F.R. § 404.1545(a)(1). There is conflicting evidence in this case as to whether Plaintiff's impairments result in an RFC for sedentary, light, or medium work.

         Sedentary work contemplates 6 hours of sitting per 8-hour workday (with standing/walking during the remaining 2 hours). Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *5. In contrast to sedentary work, light and medium work contemplate 6 hours of standing/walking per 8-hour workday (with sitting during the remaining 2 hours). Id. at *5-6. The primary difference between light and medium work is that light work requires less lifting/carrying. Id. Specifically, light work requires “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, ” and medium work requires “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” Id.

         If Plaintiff has an RFC for sedentary work, beginning on March 2, 2017 (his fiftieth birthday) [AR at 60], he is disabled pursuant to direct application of Rule 201.10 of Appendix 2 of the regulations [AR at 25].[1] If Plaintiff has an RFC for light or medium work, Rules 202.11 and 203.19, respectively, direct an ultimate finding of “not disabled.”[2]

         The medical evidence and the administrative hearing

         On October 5, 2015, the Commissioner's non-examining consultant, Diosdado Irlandez, M.D., found, based on review of the available medical records, that Plaintiff's degenerative disc disease and chronic obstructive pulmonary disease (COPD) allow him to perform a limited range of “medium” work. [AR at 82-85.]

         On October 5, 2015, Plaintiff's treating nurse at Family Practice Associates, Barbara Thompson, APRN (advanced practice registered nurse), completed the standard Physical Capacities Evaluation form. [AR at 336-37.][3] Nurse Thompson found that Plaintiff suffers from degenerative disc disease (“DDD”) affecting his “neck, back” and degenerative joint disease (“DJD”) affecting his “knees.” [AR at 336.] Nurse Thompson limited Plaintiff to sitting for less than 2 hours (total) and standing/walking for less than 2 hours (total) in an 8-hour work day (with normal breaks). [AR at 337.][4]

         In June 2016, another nurse at Family Practice, Jessica Muth, APRN, prescribed a “4 point cane” due to Plaintiff's “spinal stenosis, falls.” [AR at 425.] In her durable medical equipment (DME) coverage statement to Medicare, Nurse Muth identified the cane as a “quad cane” and the estimated length of need for the cane as “lifetime.” [AR at 426.]

         In August 2017, at the administrative hearing, the ALJ noted that Plaintiff was “recently prescribed a cane” and asked Plaintiff why he needed it. [AR at 38.] Plaintiff responded “I cannot get up and down the stairs. I cannot bend down and get back up. Sometimes when I get dizzy, to help me balance.” [AR at 39.] Plaintiff further testified that he needs the cane due to knee and ankle pain. [AR at 43-44.]

         The ALJ asked the vocational expert (VE) to assume an individual who (in addition to Plaintiff's age, education, and previous work experience) can perform a limited range of light work. [AR at 55-56.] The VE testified that such an individual can perform a significant number of light jobs in the national economy such as light assembler, garment sorter, and garment folder. [AR at 56.]

         The ALJ asked the VE what if “I add that the individual does need a cane to stand and walk.” [AR at 56.] The VE testified that the individual “would be limited to sedentary work.” [Id.][5] Upon cross- examination, the VE testified that acceptance of Nurse Thompson's ...


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