UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Suzanne Borsody
v. Civil No. 13-cv-468-JL Opinion No. 2015 DNH 005
Carolyn W. Colvyn, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Suzanne Borsody has appealed the Social Security
Administration’s denial of her application for a period of
disability and disability insurance benefits. An administrative
law judge at the SSA (“ALJ”) ruled that, despite Borsody’s severe
impairments (bipolar disorder, fibromyalgia, and carpal tunnel
syndrome, among others), she retains the residual functional
capacity (“RFC”) to perform jobs that exist in significant
numbers in the national economy, and, as a result, is not
disabled. See 20 C.F.R. §§ 404.1505(a). The Appeals Council
later denied Borsody’s request for review of the ALJ’s decision,
see id. § 404.968(a), with the result that the ALJ’s decision
became the SSA’s final decision on Borsody’s application, see id.
§ 404.981. Borsody appealed the decision to this court, which
has jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Borsody has filed a motion to reverse the decision. See
L.R. 9.1(b)(1). Among other things, she argues that the ALJ
failed to properly evaluate much of the medical opinion evidence bearing on the RFC determination. The Commissioner of the SSA
has cross-moved for an order affirming the ALJ’s decision, see
L.R. 9.1(d), attempting to defend the ALJ’s handling of the
opinion evidence. As more fully explained below, the court
agrees with Borsody that the ALJ failed to articulate his reasons
for discounting medical opinion evidence establishing that
Borsody’s RFC was more limited than the ALJ found and,
accordingly, grants her motion to reverse (and denies the
Commissioner’s motion to affirm) the ALJ’s decision.
The ALJ found that Borsody retained the RFC to perform
sedentary work with a number of limitations. In relevant part,
the ALJ stated these limitations to be that Borsody “can
frequently reach above both shoulders, handle with her hand,
finger with her left hand.” As Borsody points out, however, a
physician who had examined her on behalf of the Florida
Department of Health in May 2009, Dr. Rhys House, observed that
Borsody’s “right hand had a reduced grip of 4/5 and was of little
use and she could not extend or use her right thumb and had loss
of sensation in all fingers.” House, who diagnosed Borsody with
carpal tunnel syndrome in both hands, further stated that her
right hand was “functionally useless as she is unable to grip or
manipulate small objects and relies on the use of her
[non-dominant] left hand for feeding herself and dressing.”
2 As the Commissioner points out, the ALJ noted some of
House’s opinions in his order--but, as Borsody points out, the
order does not explain why the ALJ rejected those opinions in
determining her RFC. The order merely states that “the medical
opinion of the state agency consultant [sic] in September 2008
and September 2009 is reflected in the [] stated [RFC].” While
these opinions, reached by two different physicians who did not
examine Borsody, did not include any limitations on her use of
her right hand, the ALJ’s order (which, it should be noted, does
not otherwise describe the consultants’ opinions) fails to
articulate any reason why those opinions were given more weight
than House’s differing conclusions on the subject.
The Commissioner does not argue to the contrary. Instead,
she suggests that, in determining Borsody’s RFC, the ALJ actually
“limited [her] to frequent reaching above her shoulders and
handling and fingering with her left hand.” Again, though, in
announcing his determination of Borsody’s RFC (which the
Commissioner acknowledges is “awkwardly phrased”), the ALJ stated
that she “can frequently reach above both shoulders, handle with
her hand, finger with her left hand.” Nothing on the face of
this statement indicates that Borsody can perform these
manipulative activities with her left hand only, and not with her
right, as House had concluded.
3 Nor, contrary to the Commissioner’s suggestion, did the ALJ
include any such limitation in his hypothetical question to the
vocational expert (“VE”) who testified at the hearing. In
identifying limitations for that purpose, the ALJ stated, in
relevant part, that the claimant could “frequently handle with
the left hand and fingers,” saying nothing about any limitations
on the use of the right hand.1 It strains credulity to suggest
that, by identifying minor limitations on Borsody’s use of her
left hand alone, the ALJ was indicating his belief that she could
not use her right hand at all; the considerably more likely
inference is that the ALJ said nothing about Borsody’s right hand
because he believed she faced no limitations in using it.
In any event, as Borsody points out, that is clearly how the
VE understood the ALJ’s hypothetical question, since, in
response, the VE identified three jobs that a claimant with those
limitations could perform--and all of those jobs require frequent
handling, at least according to the Dictionary of Occupational
Titles, or “DOT” (with which the VE stated that his testimony was
consistent). The VE was not asked whether a claimant could
nevertheless perform those jobs without the use of her dominant
1 The term “frequently” itself reflects a limitation in the sense that it means less often than “constantly.” Dep’t of Labor, Dictionary of Occupational Titles App. C, at IV (4th ed. rev. 1991).
4 hand. Indeed, at least one of the jobs, “lens inserter”--which
entails inserting lenses into sunglass frames--seems difficult if
not impossible to perform one-handed.2
So the record simply does not permit the inference that the
ALJ found, despite Borsody’s inability to use her right hand (and
her other limitations), she was capable of performing jobs that
exist in significant numbers in the national economy, and, as a
result, is not disabled. Instead, the record compels the
inference that the ALJ found Borsody had no limitations in using
her right hand, and that, accordingly, she could do the jobs the
VE had identified. While there is evidence to support such a
finding--most notably the opinions of Dr. Robert Dehgan, who
examined Borsody on behalf of the Florida Department of Health in
August 2009 and detected no manipulative limitations in either
hand--it was incumbent on the ALJ to state some basis for
crediting that evidence rather than the contrary opinion that
2 Some courts have held that, in classifying jobs to require frequent handling or fingering, “[t]he DOT does not contain any requirement of bilateral fingering ability or dexterity.” Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000); see also, e.g., Diehl v. Barnhart, 357 F. Supp. 2d 804, 821 (E.D. Pa. 2005).
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Suzanne Borsody
v. Civil No. 13-cv-468-JL Opinion No. 2015 DNH 005
Carolyn W. Colvyn, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Suzanne Borsody has appealed the Social Security
Administration’s denial of her application for a period of
disability and disability insurance benefits. An administrative
law judge at the SSA (“ALJ”) ruled that, despite Borsody’s severe
impairments (bipolar disorder, fibromyalgia, and carpal tunnel
syndrome, among others), she retains the residual functional
capacity (“RFC”) to perform jobs that exist in significant
numbers in the national economy, and, as a result, is not
disabled. See 20 C.F.R. §§ 404.1505(a). The Appeals Council
later denied Borsody’s request for review of the ALJ’s decision,
see id. § 404.968(a), with the result that the ALJ’s decision
became the SSA’s final decision on Borsody’s application, see id.
§ 404.981. Borsody appealed the decision to this court, which
has jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Borsody has filed a motion to reverse the decision. See
L.R. 9.1(b)(1). Among other things, she argues that the ALJ
failed to properly evaluate much of the medical opinion evidence bearing on the RFC determination. The Commissioner of the SSA
has cross-moved for an order affirming the ALJ’s decision, see
L.R. 9.1(d), attempting to defend the ALJ’s handling of the
opinion evidence. As more fully explained below, the court
agrees with Borsody that the ALJ failed to articulate his reasons
for discounting medical opinion evidence establishing that
Borsody’s RFC was more limited than the ALJ found and,
accordingly, grants her motion to reverse (and denies the
Commissioner’s motion to affirm) the ALJ’s decision.
The ALJ found that Borsody retained the RFC to perform
sedentary work with a number of limitations. In relevant part,
the ALJ stated these limitations to be that Borsody “can
frequently reach above both shoulders, handle with her hand,
finger with her left hand.” As Borsody points out, however, a
physician who had examined her on behalf of the Florida
Department of Health in May 2009, Dr. Rhys House, observed that
Borsody’s “right hand had a reduced grip of 4/5 and was of little
use and she could not extend or use her right thumb and had loss
of sensation in all fingers.” House, who diagnosed Borsody with
carpal tunnel syndrome in both hands, further stated that her
right hand was “functionally useless as she is unable to grip or
manipulate small objects and relies on the use of her
[non-dominant] left hand for feeding herself and dressing.”
2 As the Commissioner points out, the ALJ noted some of
House’s opinions in his order--but, as Borsody points out, the
order does not explain why the ALJ rejected those opinions in
determining her RFC. The order merely states that “the medical
opinion of the state agency consultant [sic] in September 2008
and September 2009 is reflected in the [] stated [RFC].” While
these opinions, reached by two different physicians who did not
examine Borsody, did not include any limitations on her use of
her right hand, the ALJ’s order (which, it should be noted, does
not otherwise describe the consultants’ opinions) fails to
articulate any reason why those opinions were given more weight
than House’s differing conclusions on the subject.
The Commissioner does not argue to the contrary. Instead,
she suggests that, in determining Borsody’s RFC, the ALJ actually
“limited [her] to frequent reaching above her shoulders and
handling and fingering with her left hand.” Again, though, in
announcing his determination of Borsody’s RFC (which the
Commissioner acknowledges is “awkwardly phrased”), the ALJ stated
that she “can frequently reach above both shoulders, handle with
her hand, finger with her left hand.” Nothing on the face of
this statement indicates that Borsody can perform these
manipulative activities with her left hand only, and not with her
right, as House had concluded.
3 Nor, contrary to the Commissioner’s suggestion, did the ALJ
include any such limitation in his hypothetical question to the
vocational expert (“VE”) who testified at the hearing. In
identifying limitations for that purpose, the ALJ stated, in
relevant part, that the claimant could “frequently handle with
the left hand and fingers,” saying nothing about any limitations
on the use of the right hand.1 It strains credulity to suggest
that, by identifying minor limitations on Borsody’s use of her
left hand alone, the ALJ was indicating his belief that she could
not use her right hand at all; the considerably more likely
inference is that the ALJ said nothing about Borsody’s right hand
because he believed she faced no limitations in using it.
In any event, as Borsody points out, that is clearly how the
VE understood the ALJ’s hypothetical question, since, in
response, the VE identified three jobs that a claimant with those
limitations could perform--and all of those jobs require frequent
handling, at least according to the Dictionary of Occupational
Titles, or “DOT” (with which the VE stated that his testimony was
consistent). The VE was not asked whether a claimant could
nevertheless perform those jobs without the use of her dominant
1 The term “frequently” itself reflects a limitation in the sense that it means less often than “constantly.” Dep’t of Labor, Dictionary of Occupational Titles App. C, at IV (4th ed. rev. 1991).
4 hand. Indeed, at least one of the jobs, “lens inserter”--which
entails inserting lenses into sunglass frames--seems difficult if
not impossible to perform one-handed.2
So the record simply does not permit the inference that the
ALJ found, despite Borsody’s inability to use her right hand (and
her other limitations), she was capable of performing jobs that
exist in significant numbers in the national economy, and, as a
result, is not disabled. Instead, the record compels the
inference that the ALJ found Borsody had no limitations in using
her right hand, and that, accordingly, she could do the jobs the
VE had identified. While there is evidence to support such a
finding--most notably the opinions of Dr. Robert Dehgan, who
examined Borsody on behalf of the Florida Department of Health in
August 2009 and detected no manipulative limitations in either
hand--it was incumbent on the ALJ to state some basis for
crediting that evidence rather than the contrary opinion that
2 Some courts have held that, in classifying jobs to require frequent handling or fingering, “[t]he DOT does not contain any requirement of bilateral fingering ability or dexterity.” Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000); see also, e.g., Diehl v. Barnhart, 357 F. Supp. 2d 804, 821 (E.D. Pa. 2005). Here, though, the Commissioner does not rely on this line of authority, or otherwise address Borsody’s argument that DOT requirements of handling or fingering necessarily require the ability to do so with both hands. Regardless, in most of the cases, the VE specifically testified that the jobs in question could be done one-handedly, see, e.g., Carey, 230 F.3d at 146, and, as just discussed, there was no such testimony here.
5 House reached after examining Borsody just a few months earlier.
See 20 C.F.R. § 404.1527(c); Polanco-Quinones v. Astrue, 477 Fed.
Appx. 745, 746 (1st Cir. 2012). As the Commissioner more or less
concedes, the ALJ failed to do so (or, for that matter, even to
acknowledge directly that a medical opinion existed that
conflicted with his findings).
Accordingly, Borsody’s motion to reverse the ALJ’s decision
(document no. 9) is GRANTED and this matter remanded to the SSA
so that House’s conclusions, and the other medical opinion
evidence of record, may be properly considered.3 See 42 U.S.C.
§ 405(g). The Commissioner’s motion to affirm the ALJ’s decision
(document no. 13) is DENIED. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: January 13, 2015 cc: Raymond J. Kelly, Esq. T. David Plourde, AUSA
3 Borsody argues that the ALJ also failed to properly evaluate much of the other record evidence, including the opinion of her treating psychiatrist and Borsody’s subjective account of her limitations. Because the ALJ’s failure to properly consider House’s opinion necessitates reversal and remand in and of itself, the court need not reach those arguments.