REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) in October 2012, alleging disability beginning on June 17, 2012, due to injuries from a motorcycle accident; muscle spasms; fractured tibia, fibula in right ankle; and injuries to his hip, back, neck, and right shoulder. (R.pp. 18, 302, 392). Plaintiff's application was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on October 17, 2014. (R.pp. 60-88). An ALJ thereafter denied Plaintiff's claim in a decision issued January 14, 2015. (R.pp. 118-126). Plaintiff appealed, and the Appeals Council remanded the case with instructions to obtain additional evidence regarding Plaintiff's impairments; to further evaluate his bilateral hand impairment at step two of the sequential evaluation process; to give further consideration to Plaintiff's maximum residual functional capacity (RFC) and provide an appropriate rationale with specific references to evidence of record in support of the assessed limitations; to further evaluate Plaintiff's alleged symptoms and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms and pertinent circuit case law; and, if warranted by the expanded record, to obtain supplemental evidence from a vocational expert (VE) to clarify the effect of the assessed limitations on Plaintiff's occupational base. (R.pp. 134-135).

A second hearing was then held before the ALJ on August 26, 2016. (R.pp. 36-59). The ALJ thereafter again denied Plaintiff's claim in a decision issued December 2, 2016. (R.pp. 18-28). This time the Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the December 2, 2016 determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6). Plaintiff then filed this action in United States District Court, asserting that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed with an award of benefits or alternatively remanded for further consideration of his claim. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

Scope of review

Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

Medical Records1

Plaintiff's medical records show that he was treated for injuries, including a right ankle fracture for which he underwent surgery (closed reduction performed by orthopedic surgeon Dr. Langdon Hartsock), at the Medical University of South Carolina (MUSC) after a motorcycle accident on June 17, 2012 (his alleged disability onset date). (R.pp. 610-616, 652-660). These medical records also indicate that Plaintiff had some injury to his right fingers. (R.p. 613).

On August 7, 2012, Plaintiff had a follow up appointment as to his right ankle with Dr. Hartsock at MUSC Health. It was noted during this visit that Plaintiff complained of some triggering of his index finger, although it was not triggering that day. (R.p. 627). In October 2012, Dr. Hartsock's examination revealed that Plaintiff's right upper extremity showed positive Tinel's sign at the elbow, "[m]ildly positive one on the palmar side of wrist, and "subjective decreased sensation in the distribution of ulnar nerve." (R.p. 661). Dr. Hartsock assessed Plaintiff with "[n]eck pain and right upper extremity numbness and tingling with possible cervical radiculopathy versus cubital tunnel syndrome and/or possible mild carpel tunnel syndrome." Id.

On October 11, 2012, Dr. John M. Ernst of Orthopaedic Specialists of Charleston/Roper St. Francis examined Plaintiff for complaints of right wrist pain and noted that Plaintiff had "[m]ild tenderness distal radius and ulna, radiocarpal, radioulnar ulnar carpal joints and dorsal carpus", and that Plaintiff's thumb carpometacarpal (CMC) was tender with positive grind and crepitus. Dr. Ernst recommended a neurological consultation, thought Plaintiff might need to consider diagnostic wrist arthroscopy in the future, and noted that after cervical work-up Plaintiff might consider selective radiocarpal and CMC joint injections. (R.pp. 753-55). An electromyography/nerve conduction study on October 31, 2012 indicated:

(R.pp. 817-818). The results were normal in Plaintiff's arm, but an evaluation of Plaintiff's neck could not be made because Plaintiff was unable to relax. (R.pp. 817-818)

On January 31, 2013, Plaintiff complained to Dr. Emily Darr at MUSC about radiating pain in the C6 and C7 distribution in his right arm with grip and wrist weakness. Dr. Darr noted "[g]rip and WE [wrist extensor] weakness on the right compared to left", and recommended a right C6 selective nerve root block. (R.p. 669).

On February 21, 2013, state agency physician Dr. Mary Lang reviewed Plaintiff's records and opined that Plaintiff could perform a range of light work2 with limitations of frequent climbing of ramps/stairs and kneeling; occasional climbing of ladders/ropes/scaffolds, stooping, crouching, and crawling; and avoidance of concentrated exposure to hazards. Dr. Lang also opined that Plaintiff was limited to frequent pushing and pulling (including operation of hand and/or foot controls as to his right upper and lower extremities) and was limited to frequent reaching overhead, handling, and fingering on the right. (R.pp. 94-97).

On April 1, 2013, Dr. Ernst assessed Plaintiff with joint and wrist pain and numbness and also found:

(R.p. 749).

On April 2, 2013, Dr. Jeffrey W. Folk, a pain management specialist at Intervene MD, opined that Plaintiff could occasionally lift up to twenty pounds, occasionally carry up to ten pounds, could occasionally (up to 1/3 of the time) sit, stand, walk, and drive; could occasionally (up to 33%) reach below and above his shoulder, could occasionally (up to 33% of an 8-hour workday) do computer keyboarding and use a computer mouse; had total restrictions involving the use of fixed/moving machinery, the use of powered equipment, and vibration; and moderate activity restrictions as to cold and hot climate, wetness/humidity, noise, and dust/fumes. Dr. Folk opined that Plaintiff was limited to light handling with no simple grasping on the right and no pushing and pulling, hand use, or power grasp with the left hand or the right hand. He thought that Plaintiff had not reached maximum medical improvement, the restrictions were permanent, and Plaintiff could not work full time. (R.pp. 775-776).

In April 2013, Dr. Darr noted that Plaintiff had had right shoulder surgery a few weeks prior and was wearing a right thumb spica for arthritis of his thumb joint. She assessed cervical degenerative disc disease, worse at C5-6 and C6-7, with radicular pain not improved with nerve root blocks or facet injections. (R.pp. 688-689). On April 22, 2013, Plaintiff reported to Dr. Ernst that his right thumb was more comfortable with the palmar-based opponens splint, but that he had intermittent left thumb CMC aching which was aggravated with use. (R.p. 737). Radiographs of Plaintiff's hands showed "humpback deformit[ies] CMC with tenderness positive grind and crepitus mild laxity." Dr. Ernst recommended interval splinting with moderation of activity and continuation of medications. (R.pp. 739-740).

On June 18, 2013, state agency physician Dr. Ramona Minnus reviewed Plaintiff's records and opined that Plaintiff could perform a range of light work with frequent climbing of ramps/stairs, stooping, and reaching to the left and right overhead; occasional climbing of ladders/ropes, scaffolds, kneeling, crouching, and crawling; and avoidance of concentrated exposure to extreme cold and hazards. She also opined that Plaintiff was limited to frequent use of foot controls in the right lower extremities and that his handling and fingering were unlimited. (R.pp. 108-111).

On July 31, 2013, Dr. Darr noted "[g]rip and WE weakness on right compared to left[.] Injections at C6 were recommended and trigger point injections were to be considered if Plaintiff's myofascial pain continued. (R.p. 669).

On March 25, 2014, Dr. Folk completed a "Treating Physician's Statement Social Security Disability Physical Impairments" questionnaire in which he stated he first treated Plaintiff in June 2005 and had last treated Plaintiff in January 2014, and that Plaintiff had been diagnosed with lumbar radiculopathy, lumbar disc displacement, and cervical radiculopathy. Dr. Folk opined that Plaintiff could occasionally lift less than twenty pounds; could do no frequent lifting/carrying; could occasionally bend at the waist; was limited in pushing and pulling with his upper and lower extremities; could sit for a total of less than two hours in an eight-hour workday; would need frequent position changes, frequent and/or unscheduled breaks for relief of pain requiring him to leave the workstation, and the option to alternate sitting and standing; could occasionally reach in all directions; could occasionally (up to one-third of an eight-hour workday) finger and handle; had pain or other discomfort that would have a significant limitation on his ability to concentrate, remain alert, think clearly, or otherwise attend to work tasks to completion during an eight-hour workday; had a significant limitation (50% or more of the workday or workweek) in concentration and attention to tasks; had episodes of increased symptoms and/or medical treatment during normal working hours that would cause a work absence from two to three days per month; and had no ability to sustain any time of work activity at any exertional level. It was noted that no significant improvement was expected. (R.pp. 766-771).

On December 18, 2014, Plaintiff complained to Dr. Ernst about "persistent bilateral CMC joint aching 2/10 at rest and 6/10 [with] activity. Sharp. No radiation. No crepitus." He also reported "intermittent tingling, long ring and small right hand only." Dr. Ernst assessed osteoarthritis of both Plaintiff's thumb and shoulder and administered a Marcaine and Depro-Medrol injection in Plaintiff's left CMC joint. (R.pp. 819-822).

Discussion

Plaintiff, who was fifty-four years old at the time he alleges he became disabled and fifty-eight years old at the time of the ALJ's decision, has a high school education and past relevant work experience as a computer network systems engineer. (R.pp. 26, 64, 66, 302, 393). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

After a review of the evidence and testimony in the case, the ALJ determined that although Plaintiff does suffer from the "severe" impairments3 of degenerative disc disease and degenerative joint disease (R.p. 20), he nevertheless retained the RFC to perform sedentary work4 with limitations of no climbing; occasional crawling, crouching, stooping, balancing, and kneeling; occasional overhead reaching; and frequent fingering and handling bilaterally (R.p. 21). At step four, the ALJ found that Plaintiff could not perform his past relevant work with these limitations. (R.p. 26). However, the ALJ obtained testimony from a VE and found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with these limitations (specifically identifying the representative sedentary occupations of procurement clerk, credit card clerk, and auction clerk), and was therefore not disabled during the period at issue. (R.p. 27).

Plaintiff asserts that in reaching this decision, the ALJ erred by failing to comply with the Appeals Council remand order, by according little weight to the opinion of his treating physician (Dr. Folk), by failing to properly assess his credibility, and by failing to sustain the burden of establishing that there is other work in the national economy that he can perform with his impairments. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate his bilateral hand impairment and RFC, thereby requiring a remand of this case for additional review.

First, it is not clear from the ALJ's decision that he properly considered Plaintiff's bilateral hand impairment at step two of the sequential evaluation process. In his January 2015 decision, the ALJ's entire step two finding was:

3. The claimant has the following severe impairments: degenerative disc disease and degenerative joint disease (20 CFR 404.1520(c)).

(R.p. 120)(emphasis in original). However, as noted above, the Appeals Council remanded the case to the ALJ to, among other things, further evaluate Plaintiff's bilateral hand impairment at step two of the sequential evaluation process. (R.p. 134). The Commissioner appears to contend that the ALJ properly considered Plaintiff's thumb joint osteoarthritis by generally finding that Plaintiff had the severe impairment of degenerative joint disease. However, as the ALJ made the same step two finding in his December 2016 decision that he made in the January 2015 decision (R.pp. 20, 120)5 and does not include any discussion of Plaintiff's biltateral hand impairment or thumb issues at step two, this Court is unable to determine whether the ALJ evaluated Plaintiff's bilateral hand impairment at step two as directed by the Appeals Council.6

Of course, step two error may be harmless where the ALJ finds other severe impairments (which the ALJ did in this case) and considers all of Plaintiff's impairments at later steps. See, e.g., Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); Maziarz v. Sec'y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); Washington v. Astrue, 698 F.Supp.2d 562 (D.S.C. 2010). However, the decision fails to show that the ALJ fully considered Plaintiff's bilateral hand impairments at the later steps. Although the ALJ noted some medical evidence as to Plaintiff's hand impairments in determining Plaintiff's RFC, he does not discuss, other than mentioning that Plaintiff complained of hand pain with numbness and tingling in October 2012, any of the treatment records of Plaintiff's hand impairment prior to December 2014. (R.pp. 23-24). As such, it cannot be determined from a plain reading of the decision whether the ALJ properly considered Plaintiff's bilateral hand impairments in formulating Plaintiff's RFC.

RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. An RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations);" id. at *7; and "[r]emand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir.2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013); see also, e.g., Neely v. Comm'r of Soc. Sec., No. 14-01109, 2015 WL 3536690, at *12 (D.S.C. June 4, 2015); Washington v. Colvin, No. 14-2415, 2015 WL 3868063, at *29 (D.S.C. June 23, 2015).

Here, in the December 2016 decision, the ALJ found the same RFC limitations as he found in January 2015, but added a limitation to the RFC that Plaintiff could perform frequent handling and fingering bilaterally. (R.pp. 21, 121). In doing so, the ALJ noted that Dr. Ernst had found that Plaintiff had Eaton grade 2-37 osteoarthritis of his bilateral thumbs and stated that he "therefore limited [Plaintiff] to no more than frequent fingering and handling, noting that the record suggests that injections and anti-inflammatory medication have provided some degree of relief from these symptoms." (R.p. 25). However, Plaintiff argues that this conclusion is not supported by substantial evidence, including the treatment records, the opinion of treating physician Dr. Folk that Plaintiff could only perform occasional handling and fingering bilaterally, and Plaintiff's activities of daily living. The determination of the frequency of Plaintiff's ability to handle and finger is important in this case as, in response to questioning from Plaintiff's attorney, the VE stated that if the claimant was limited to only occasional fingering and handling (as opined to by Dr. Folk), the jobs identified were not within the limitations. The VE further stated that the jobs he identified all required frequent use of the hands to reach, handle, and finger, and explained that the sort of things that are handled and fingered included notebooks, papers, pens, files, and books. Additionally, the VE said that if a worker was 15% to 20% slower than other workers because of hand impairments, then typically employers would not maintain such an employee who was consistently slower and performing less work than others. (R.pp. 54-55).

Plaintiff's treating physician Dr. Folk opined in April 2013 that Plaintiff could only occasionally perform computer keyboarding and use a mouse, and that Plaintiff was limited to light handling with no simply grasping on the right and no pushing and pulling, hand use, or power grasp with either hand. (R.pp. 775-776). The ALJ did not specifically discuss or state what weight he gave this opinion.8 Cf. Cotter v. Harris, 642 F.2d 700 (3rd Cir. 1981) [listing cases remanded because of ALJ's failure to provide explanation or reason for rejecting or not addressing relevant probative evidence]. The ALJ did consider Dr. Folk's March 2014 opinion that that Plaintiff could only perform occasional fingering and handling, but gave little weight to that opinion, finding that it was inconsistent with the medical record and not supported by his own clinical findings (notwithstanding his earlier, consistent, 2013 findings and opinion). (R.p. 25). Similarly, in April 2013, Dr. Ernst recommended interval splinting with moderation of activity and continuation of medications (R.pp. 739-740), but the ALJ again did not discuss that report. It is possible that the ALJ gave more credence to the opinions of the non-examining state agency physicians, one of whom (Dr. Minnus) opined that Plaintiff had no limitations on handling and fingering, while the other (Dr. Lang) opined that Plaintiff was limited to frequent handling and fingering. However, the ALJ stated in his decision that these state agency opinions were entitled to little weight. (R.p. 26). Moreover, even if the ALJ did in part rely on these state agency opinions, the undersigned is constrained to note that they were provided prior to treating physician Dr. Folk's March 2014 opinion that Plaintiff was limited to occasional handling and fingering.

Further, in determining the extent that Plaintiff's hand impairments affected his ability to work, the ALJ stated that Plaintiff testified that "[h]e did not seek treatment for his hand until 2014 because his back, leg, and shoulder hurt so badly that he did not notice his hands as much." (R.p. 22). However, contrary to this statement, Plaintiff actually testified at the hearing that he had had problems with his hand since the accident in June 2012, but did not seek treatment until April 2013 (a year earlier than the ALJ indicated) because he was on heavy medication for his leg, shoulder, and hands after the accident and his hands became a focus after his leg did not hurt quite as bad, which was after the plates and screws in his leg healed. (R.pp. 42-44). Additionally, as indicated in the medical records discussed above, Plaintiff was treated as far back as October 2012 for complaints concerning his wrist and hands.

The medical evidence also shows that it was recommended that Plaintiff wear a thumb spica splint or palmar-based opponens splint. (R.pp. 737, 739-740, 749, 819, see also 688). At the first hearing, Plaintiff testified that he did not have any strength in his hand and was wearing braces on both thumbs. (R.p. 70). Although he could brush his teeth, feed himself, and send a text message, he stated that it was hard to do these things and that he performed these tasks with his index fingers and could not do so with his thumbs. (R.p.72). At the second hearing, Plaintiff testified that he had no strength to pinch things (citing problems opening a ketchup packet or tearing open an envelope) and that sometimes even picking up a piece of paper was "very, very difficult." (R.p. 43). He stated that he wears thumb splints almost constantly, including when he is reading a book, cooking, eating, or buttoning a shirt because of both pain and a lack of strength. He further stated that he does not use a computer because it is painful, only uses a phone to call a friend or check in on his mother, and has difficulty writing with a pen because his thumb does not work. (R.pp. 50-52). Although the ALJ mentioned some of Plaintiff's testimony about his thumb and hand problems in his decision (R.p. 22), the ALJ did not include anything about Plaintiff's need to use thumb splints in the hypothetical to the VE, such that it is unclear what impact wearing such splints would have on Plaintiff's ability to perform the jobs identified. (R.pp. 53-54). In part, upon questioning from Plaintiff's attorney, the VE stated that he was not even familiar with the type of splint that Plaintiff wore. (R.pp. 54-56). The undersigned simply cannot determine from a plain reading of the decision how or whether the use of thumb splints impacted the RFC decision. Therefore, it cannot be said that the ALJ built "an accurate and logical bridge from the evidence to his conclusion." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).

As noted recently by the Fourth Circuit, "the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion." Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (brackets and internal quotation marks omitted). Therefore, this action should be remanded for the ALJ to determine Plaintiff's RFC in light of all the evidence and applicable law. See Mascio, 780 F.3d at 637 [a reviewing court cannot be "left to guess about how the ALJ arrived at his conclusions"]; see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)[stating remand may be appropriate where "inadequacies in the ALJ's analysis frustrate meaningful review."]. With respect to any remaining claims of error asserted by the Plaintiff, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].

Conclusion

Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).

The parties are referred to the notice page attached hereto.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).