VERONICA L. DUFFY, Magistrate Judge.
Plaintiff, Lori Jean French, seeks judicial review of the Commissioner's final decision denying her application for social security disability benefits under Title II of the Social Security Act.
Ms. French has filed a complaint and has moved the court to reverse the Commissioner's final decision denying her disability benefits and to remand the matter to the Social Security Administration for an award of benefits or for further proceedings.
This appeal of the Commissioner's final decision denying benefits is properly before the court pursuant to 42 U.S.C. § 405(g). The parties have consented to this magistrate judge handling this matter pursuant to 28 U.S.C. § 636(c).
On November 13, 2016, Ms. French filed a Title II application for disability and disability insurance benefits, alleging disability beginning on August 27, 2014. AR152-53. Ms. French has past relevant work as a waitress and optometric technician. AR337. The Commissioner denied Ms. French's claim initially on July 5, 2017, and again on reconsideration September 14, 2017. AR108-12, 119-25. On September 21, 2017, Ms. French filed a written request for hearing. AR126-27.
On June 15, 2018, an administrative law judge (ALJ) held a video conference hearing. AR32-81. On October 1, 2018, the ALJ issued a decision that was unfavorable. AR12-26. On May 28, 2019, the Appeals Council denied Ms. French's request for review of the ALJ's decision. AR1-4. Upon exhausting her administrative remedies, Ms. French timely filed this action pursuant to 42 U.S.C. § 405(g).
On August 27, 2014, Ms. French injured her left elbow while working as an optometric technician at Vision Care Associates in Sioux Falls, South Dakota. AR544-45, 697. After pain in her left arm did not improve for several weeks, Ms. French sought treatment from Travis Slaba, PA, at Avera Family Medicine Clinic on September 9, 2014. AR544-45. Travis Slaba, PA, prescribed naproxen and Tramadol. AR545. He also placed her left arm in a sling.
On October 21, 2014, Travis Slaba, PA, referred Ms. French to Dr. Scott McPherson at CORE Orthopedics. AR526. On November 4, 2014, Ms. French met with Dr. McPherson. AR361. His diagnosis was left lateral elbow contusion with resultant lateral epicondylitis and left radial tunnel syndrome. AR361. Dr. McPherson gave Ms. French an elbow injection and implemented a 10 pound lifting restriction. AR361.
Ms. French returned to Dr. McPherson on November 25, 2014. AR360. Ms. French reported less tenderness and pain in her upper left extremity.
Ms. French returned to Dr. McPherson on December 22, 2014, complaining of intermittent pain symptoms in her left upper extremity, but reported overall she felt somewhat better. AR358. She stated she occasionally noticed a click, but Dr. McPherson did not elicit any clicking with motion. AR358. Dr. McPherson stated Ms. French had minimal symptoms over the radial tunnel level. AR358. Dr. McPherson recommended they monitor her progress and have Ms. French return in two months.
Ms. French returned to Dr. McPherson on January 7, 2015, complaining of acute pain that caused trouble using her left upper extremity. AR357. Ms. French reported she had started a new position as a technician for an ophthalmologist. AR357. Dr. McPherson prescribed a Medrol dose pack along with a cockup splint for nightwear and H-wave therapy.
Ms. French returned to Dr. McPherson on January 14, 2015, complaining of some pain and discomfort in the lateral elbow and forearm region. AR356. She had changed employers.
On March 25, 2015, Ms. French went back to Dr. McPherson with similar complaints of left upper extremity pain. AR355. At this visit, Dr. McPherson injected her left lateral epicondyle region with 1.5 cc of Celestone, 1.5 cc of lidocaine and 1.5 cc of Marcaine.
Ms. French returned to Dr. McPherson on May 8, 2015, for increasing pain in her left arm which was disrupting her sleep. AR354. Dr. McPherson recommended that Ms. French have surgery on her left elbow.
Ms. French returned to Dr. McPherson on May 22, 2015, and June 15, 2015, with similar complaints. AR351-53. Because Ms. French had exhausted all conservative treatment options, Dr. McPherson scheduled her surgery for June 17, 2015.
Following surgery, Ms. French followed up with Dr. McPherson on June 29, 2015. AR350. Dr. McPherson prescribed a Medrol dose and Neurontin.
On July 13, 2015, Ms. French saw Dr. McPherson complaining of lack of range of motion and pain. AR349. Ms. French stated her pain had improved to the point she was able to use her hand and grip and grasp things.
Dr. McPherson saw Ms. French on July 20, 2015, for perioral type symptoms.
On July 24, 2015, Ms. French had herpes zoster and reported burning pain over her surgical site. AR347. Ms. French had been set up for stellate ganglion blocks but had not had them yet.
Ms. French returned to Dr. McPherson on August 13, 2015, complaining of increasing sympathetic tone of the left arm with burning, stinging sensation over the surgical site. AR346. On examination, Ms. French had light touch sensitivity over the surgical site.
Dr. Lockwood performed left stellate ganglion blocks on Ms. French's left arm on August 11, August 13, August 14, August 17, and August 26, 2015. AR462, 457, 451, 445, 439.
On August 26, 2015, and September 16, 2015, Ms. French returned to Dr. McPherson after Dr. Lockwood performed these stellate ganglion blocks. AR344-45. Dr. McPherson stated that Ms. French seemed to note some decrease in the intensity of her pain symptoms (AR345) and some improvement in range of motion (AR344). Dr. McPherson's impression remained of left lateral epicondylitis radial tunnel syndrome, surgically treated with chronic regional pain. AR345. Dr. McPherson referred Ms. French to Dr. Metz for further treatment. AR344. Dr. McPherson stated they might have to go quite slowly, but he encouraged her to get back to meaningful employment.
Ms. French went to Dr. Metz on September 22, 2015. AR434. Dr. Metz assessed Ms. French with complex regional pain syndrome of the left upper extremity.
Dr. John Cook of Dakota Dunes Midwest Pain Clinic referred Ms. French to Donald E. Baum, PhD, for a psychological evaluation prior to a possible neurostimulator implant. AR373. On January 22, 2016, Dr. Baum interviewed Ms. French and also administered the Minnesota Multiphasic Personality Inventory 2, Beck Depression Inventory 2d Ed., Beck Anxiety Inventory and behavioral pain evaluation. AR373-91. Ms. French stated she was currently working as an eye technician 30+ hours a week. AR374. She stated she had many interests, but particularly enjoyed working out, swimming, traveling, and doing family things.
On November 25, 2015, Ms. French sought treatment from Dr. Cook at the Midwest Pain Clinic. Dr. Cook recommended a trial spinal cord stimulator be implanted for pain reduction. AR580. In addition, Dr. Cook prescribed pain medications, topical creams, and performed an incisional peripheral nerve block of her left elbow with an ulnar peripheral nerve block on June 7, 2016. AR569, 572, 576, 589.
On January 26, 2016, Ms. French's occupational therapist stated she had 35 pounds right hand grip strength and 20 pounds left hand grip strength. AR395. Ms. French had shown improvement in tactile stimulus tolerance, as well as with activity of the arm. Id. The occupational therapist indicated Ms. French did have limited strengths and function in using the arm and/or light/moderate or heavy use activity.
On June 7, 2016, Dr. Cook placed the spinal cord stimulator for a trial. AR610. On June 9, 2016, Ms. French had the spinal cord stimulator lead removed early because it was not working on the left side. AR600, 602. On September 20, 2016, Dr. Cook surgically inserted a new trial spinal cord stimulator lead. AR566. On September 23, 2016, Ms. French returned to Dr. Cook because the spinal cord stimulator was causing pain, burning, and stinging. AR615. Dr. Cook removed the trial stimulator on this date. AR617.
On October 20, 2016, Dr. Hain noted Ms. French had arm pain relieved with spinal stimulation. AR749. Dr. Hain placed the spinal cord stimulator. AR749.
On November 16, 2016, Ms. French returned to Dr. Cook complaining of right hip pain that radiated into her right leg. AR562. Dr. Cook did a lumbar epidural steroid injection of the L5-S1. AR563.
On December 5, 2016, Ms. French began counseling with Dr. Shelley Sandbulte for major depression and pain coping. AR798-839.
On December 14, 2016, Ms. French underwent a propofol infusion for migraines at the Midwest Pain Clinic. AR657. She also complained to Dr. Cook about tenderness over the spinal cord stimulator site. AR675.
On January 11, 2017, Ms. French returned to Dr. Cook, complaining of headaches which Ms. French believed was being caused by the spinal cord stimulator. AR679. Dr. Cook referred Ms. French to Dr. Hain.
On March 3, 2017, Ms. French consulted with Dr. Christopher Janssen for the purposes of an independent medical evaluation/impairment rating. AR697. Ms. French had 100 degrees flexion in the left elbow, compared to 150 degrees on the right; 80 degrees pronation in the left elbow, compared to 90 degrees on the right; and 60 degrees supination in the left elbow, compared to 90 degrees on the right. AR699. Dr. Janssen opined that Ms. French experiences continual severe and debilitating pain as a result of the injury Ms. French suffered on August 27, 2014. AR707. In addition, Dr. Janssen also opined that Ms. French will continue to suffer from continual, severe, debilitating pain.
On July 20, 2017, Ms. French began treatment with Dr. Flickema at Avera Integrative Medicine. AR1052-57. Dr. Flickema treated with acupuncture.
From January 5, 2018, through June 7, 2018, Ms. French sought treatment from Dr. Cho at Midwest Pain and Rehabilitation. AR1130-79. She was treated with medication, injections and physical therapy.
On September 11 and 13, 2017, state agency medical consultants Jerry Buchkoski, Ph.D., and James Barker, M.D., reviewed the evidence and opined as follows:
Ms. French reported she experiences burning, stinging, stabbing pain in her left elbow constantly. AR53. Ms. French reported she continually experiences pain in her right hip, right shoulder and back at the site where the spinal cord stimulators were placed. AR53. She also experiences headaches related to her pain and medications.
David Perry, Ph.D., appeared at the hearing as a vocational expert ("VE"). AR72. The VE indicated Ms. French's past work as an optometric technician was skilled sedentary work as generally performed in the national economy, but was light to medium work as Ms. French actually performed it. AR337. The VE indicated Ms. French's past relevant work as a waitress was semiskilled light work as generally performed, but medium work as actually performed.
The ALJ posed a series of hypothetical questions to the VE. AR73-77. In the first hypothetical question, the ALJ asked the VE to assume as follows:
AR73-74. The VE testified the individual depicted in the first hypothetical was capable of past relevant work as an optometric technician as that job is generally performed (i.e. sedentary), but not as Ms. French actually performed it at the light/medium exertional level. AR74-75. The VE testified Ms. French could not perform her past work as a waitress. AR74.
The second hypothetical kept the parameters of the first hypothetical but limited the person's lifting and carrying to 10 pounds occasionally and less than 10 pounds frequently; the VE indicated that the person was able to do past relevant work as an optometric technician at a sedentary level as described in the Dictionary of Occupational Titles. AR74-75.
The third hypothetical kept the parameters of the two prior hypotheticals but also added that the person would be limited to occasional reaching in front and laterally and occasional handling, fingering, and feeling with the left non-dominant upper extremity. AR75. Under the third hypothetical, the VE testified that the person would not be able to perform past relevant work as an optometric technician.
The VE testified that absenteeism and tardiness for medical appointments two to three times a week that would require being absent four to five hours on those occasions eliminates competitive employment. AR77.
The ALJ concluded at step one that Ms. French had engaged in substantial gainful activity from August 27, 2014, to January 2, 2015, but not from January 2, 2015, to the date of the hearing on June 15, 2018.
At step two, the ALJ found Ms. French suffered from the following severe medically determinable impairments: complex regional pain syndrome, status post-left lateral epicondylectomy with partial ostectomy and radial tunnel release; degenerative disc disease, cervical and lumbar spine. AR18. The ALJ rejected Ms. French's testimony that she was recently diagnosed with arthritis in her right hand because there was no documentation in the record of a medically determinable impairment of her right hand. AR18. The ALJ also rejected Ms. French's asserted anxiety and depression as severe impairments because the ALJ found these conditions only minimally limited Ms. French's basic work activities. AR19-20.
At step three, the ALJ found Ms. French did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step four, the ALJ concluded Ms. French had the following physical residual functional capacity (RFC):
AR21.
In view of this RFC, the ALJ opined Ms. French could return to past relevant work as an optometric technician. AR25. The ALJ clarified its opinion was
The ALJ's conclusion on this point led it to hold that Ms. French was not disabled. A finding of not disabled having been made at step four of the analysis, the ALJ did not proceed to any step five analysis. AR26.
When reviewing a denial of benefits, the court will uphold the Commissioner's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g);
In assessing the substantiality of the evidence, the evidence that detracts from the Commissioner's decision must be considered, along with the evidence supporting it.
The court must also review the decision by the ALJ to determine if an error of law has been committed.
Social Security law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do his previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The ALJ applies a five-step procedure to decide whether an applicant is disabled. This sequential analysis is mandatory for all SSI and SSD/DIB applications.
C.F.R. § 1520(f).
The plaintiff bears the burden of proof at steps one through four of the five-step inquiry.
Ms. French asserts the Commissioner erred in concluding she could return to past relevant work as an optometric technician.
Given the RFC the ALJ determined for her, the ALJ concluded Ms. French could not return to work as an optometric technician as she had actually performed that job, which was at the light/medium exertional level. However, the ALJ decided Ms. French could perform that past relevant work as it is generally performed, which is at the sedentary exertional level. Ms. French alleges this conclusion is not supported by substantial evidence in the record.
Ms. French's argument mixes several legal issues and confuses several facts. For example, her counsel appears to assert the ALJ adopted the physical RFC opinion that she could lift 20 pounds occasionally and 10 pounds frequently.
Instead, the ALJ held Ms. French could lift and carry 10 pounds occasionally and less than 10 pounds frequently. AR20. The 20-pound RFC opinion is recited in the state agency opinions (
Ms. French's counsel further compounds the confusion by arguing that "the RFC actually limited Mrs. French's use of her left upper extremity to `occasionally.'"
The real issue, not so clearly articulated by Ms. French's counsel, is not whether the ALJ strictly followed the state agency opinions of RFC. Rather, the question is whether the ALJ's own formulation of Ms. French's physical RFC is supported by substantial evidence in the record.
As is clear from the discussion below, the RFC formulation is not determined by a state agency consultant or any one medical source but rather is the exclusive province of the ALJ to determine. Residual functional capacity is "defined as what the claimant can still do despite his or her physical or mental limitations."
When determining the RFC, the ALJ must consider all of a claimant's mental and physical impairments in combination, including those impairments that are severe and those that are nonsevere.
"The RFC assessment must always consider and address medical source opinions." SSR 96-8p. If the ALJ's assessment of RFC conflicts with the opinion of a medical source, the ALJ "must explain why the [medical source] opinion was not adopted."
Ultimate issues such as RFC, "disabled," or "unable to work" are issues reserved to the ALJ.
When writing its opinion, the ALJ "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence. . . In assessing RFC, the adjudicator must . . . explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved."
Finally, "[T]o find that a claimant has the [RFC] to perform a certain type of work, the claimant must have the ability to perform the requisite acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world."
Interpreting the gist of Ms. French's counsel's argument, it appears the real argument being asserted is that the ALJ's conclusion that Ms. French has the ability to frequently reach in directions other than overhead and frequently handle, finger and feel, all with her left upper extremity, is not supported by substantial evidence in the record.
Although the ALJ purported to give "some weight" to the state agency physical RFC opinions, with regard to Ms. French's left upper extremity, it appears the ALJ rejected those opinions altogether, at least with regard to Ms. French's left upper extremity. The agency consultants opined Ms. French could lift and carry 20 pounds occasionally and 10 pounds frequently. The ALJ said 10 pounds occasionally and less than 10 pounds frequently. The agency consultants said Ms. French could only "occasionally" push and pull. The ALJ concluded Ms. French could "frequently" reach. The agency consultants opined Ms. French had no manipulative restrictions. The ALJ concluded she was limited to "frequent" handling, fingering and feeling.
Other medical opinions of RFC in the record included multiple opinions from Ms. French's treating physician, Dr. Scott McPherson. Dr. McPherson wrote work slips for Ms. French on several occasions addressing her ability to work. AR363-69. These were not formal opinions of Ms. French's physical RFC, but appear to be documentation Ms. French would be able to present to her employer to explain her absence from work.
On November 4, 2014, Dr. McPherson wrote Ms. French should be limited to no lifting, no stressful grasping, gripping or torquing with her left hand, and only light or sedentary use of her left hand. AR369. On January 14, 2015, he wrote the same restrictions with the additional notation "continue light duty." AR368. On March 25, 2015, Dr. McPherson wrote the same restrictions as were imposed in January. AR367.
On June 29, 2015, Dr. McPherson excused Ms. French from work entirely until her next doctor's appointment. AR366. On July 13 and 24 and August 26, 2015, he continued Ms. French's no-work status until her next doctor's appointment. AR363-65. The last time Ms. French appears to have seen Dr. McPherson was September 15, 2015. AR344. At this time, Dr. McPherson referred Ms. French to Dr. Metz and/or to Dr. Brunz.
The ALJ considered Dr. McPherson's "return to work" slips as medical opinions, but it gave those slip opinions little weight. AR25. The ALJ characterized the work slips as time-limited in nature—i.e. they were not opinions as to Ms. French's long-term RFC or ability to work.
On March 3, 2017, approximately one year and three months before the ALJ hearing, Ms. French had an independent medical exam with Dr. Christopher Janssen for the purpose of obtaining an impairment rating. AR697-707.
Dr. Janssen found objective evidence in support of the diagnoses by multiple other physicians
Applying the American Medical Association Guides 6th Edition, Dr. Janssen found Ms. French met the diagnostic criteria for complex regional pain syndrome, noting the objective findings discussed above. AR705. In addition, Dr. Janssen stated there was no other diagnosis that better explained her objective signs and symptoms.
Dr. Janssen opined Ms. French had reached maximum medical improvement—that her condition was not expected to improve or change significantly. AR706. Again using the AMA Guides, Dr. Janssen gave Ms. French a 13-percent permanent upper extremity impairment rating and an 8-percent whole person impairment rating. AR707. Other than Ms. French's own description to Dr. Janssen of her functional limitations (AR697-99), Dr. Janssen did not give specific opinions regarding Ms. French's discrete RFC. AR 697-707. The ALJ does not mention Dr. Janssen's opinion at all in its opinion denying benefits. AR15-26. In her brief in this case, Ms. French's counsel also fails to address the import of Dr. Janssen's opinion and the ALJ's failure to address it.
The Commissioner, for his part, side-steps any in-depth analysis regarding the ALJ's formulation of the RFC. Instead, the Commissioner seizes upon Ms. French's counsel's apparent mistake or confusion about what, exactly, was the RFC and simply posits that the record supports the ALJ's conclusion.
The Commissioner does assert that the ALJ's finding regarding Ms. French's use of her left upper extremity was supported by evidence in the record, noting "reduced range of motion in the left arm, but that functional testing indicated she possessed full strength and intact motor coordination (AR23; see JSMF 21, 31)."
If Ms. French is taking issue with the ALJ's RFC formulation, which the court understands her to be doing, it is insufficient for the Commissioner to merely cite to the ALJ's own decision as support for that RFC. The question is not solely whether the ALJ's opinion supports the RFC formulation, but rather whether the record contains substantial evidence supporting the ALJ's RFC. The Commissioner does not discuss Dr. Janssen's opinion or the treating records or opinions of any other medical source.
The ALJ in its opinion in the passage cited to by the Commissioner wrote: "The objective medical evidence is not completely consistent with, nor does it fully support, the claimant's allegations regarding the intensity of the limiting effects of the impairment affecting her left arm. The record does support some limitation in range of motion due [sic] in the left upper extremity. However, the most recent functional testing indicates that the claimant possessed full strength and intact motor coordination. (
The two exhibits cited by the ALJ do not support the ALJ's assertion that Ms. French "possessed full strength and intact motor coordination." Exhibit 2F at page 6 is a July 13, 2015, record from Dr. McPherson.
Nor does the other record cited by the ALJ contain that language. Exhibit 3F at page 54 is dated October 5, 2015, and is Ms. French's physical therapy discharge note. AR425. The substance of this record, in its entirety, reads as follows:
AR425. Not only does this medical record fail to state that Ms. French's strength and motor coordination were "full" or "intact" as the ALJ represented, but the record indicates to the contrary that Ms. French's problems with range of motion and pain were ongoing and unresolved.
Finally, the court notes the ALJ was quite wrong in characterizing these two records from 2015 as the "most recent functional testing" applicable to Ms. French's left upper extremity. After October 5, 2015, Ms. French sought treatment from Dr. Cook at a pain clinic who performed four more surgeries on Ms. French on June 7 and 9, 2016; September 23, 2016; and October 20, 2016, implanting and removing spinal cord stimulators and different leads to try to relieve her left upper extremity pain.
Dr. Janssen performed his evaluation (described above) of Ms. French on March 3, 2017, which was also not discussed by the ALJ. Ms. French's spinal cord stimulator was removed on May 1, 2017, due to migraine headaches. AR679, 747-48, 841-42. Ms. French then began receiving acupuncture to try to address her left upper extremity pain. AR1052-57. From January to June, `, right up to the date of the ALJ hearing, Mr. French received treatment from Dr. Cho at Midwest Pain, who treated her with medication, injections and physical therapy. AR1130-79. So, not only were the two records cited by the ALJ not the "most recent" records as the ALJ characterized them, but the records which were subsequent to these two records showed a pattern of continuing substantial pain, weakness, and loss of range of motion.
The ALJ and the Commissioner also rely on Ms. French's ADLs to support the RFC formulation. AR23-24. But the ALJ often did not fairly characterize Ms. French's ADLs. For example, the ALJ stated Ms. French worked part-time for two years after the onset date, although her productivity was less than that of other employees. AR24. In fact, the ALJ itself found Ms. French was engaged in SGA during only the first four months following the date of onset, not two years. AR17 (engaged in SGA from August 27, 2014, to January 2, 2015). In addition, one of Ms. French's co-workers submitted evidence that starting in 2015 Ms. French was only working at 50-percent capacity, evidence that Ms. French agreed with. AR49. Fifty-percent capacity is a little more significant than simply saying Ms. French's productivity "was less." AR24.
Although Ms. French does the grocery shopping, she can only lift one bag at a time with her right arm; her family helps carry in groceries. AR56. Ms. French testified she was not able to reach items on a shelf at the top of a coat closet. AR57. Ms. French testified she did most of her personal care using her right hand only. AR58. Ms. French stated she cannot hold a knife or lift a pot of water, so her family helps her with cooking duties. AR58-59. Ms. French can hold a pen and sign her name with her right hand, but it is a slow and laborious process that results in "a scribble." AR59-60. Ms. French testified she could not type on a keyboard using her left hand and had difficulty buttoning buttons and tying. AR61. Although she can vacuum, Ms. French testified she can "only do a certain amount of that" and then she has to stop because it hurts. AR61. Ms. French does laundry, but a family member has to carry the hamper to the laundry room. AR61-62.
The ALJ summarized, "[t]he claimaint's daily activities, in particular her ability to see to her personal cares independently, work, and exercise at a gym 5 days per week, are significant, and are more consistent with the residual functional capacity assessment" that the ALJ formulated. AR24. Ms. French's "working" post-onset-date is addressed above.
Her gym visits are recorded on a functional capacity form Ms. French filled out April 30, 2017, a time period when she was receiving aqua therapy for her arm in the pool. AR272, 275. She also noted on this form she can walk on a treadmill for 60 minutes at a time. AR273. The ALJ does not explain how 5 trips to the gym per week to walk and do aqua therapy establish the RFC for Ms. French to be able to "reach frequently" with her left upper extremity and to "frequently" handle, finger and feel with her left upper extremity. AR21.
Ms. French's counsel argues that the ALJ erred in concluding she could return to her past relevant work as an optometric technician. The Commissioner defends by arguing the ALJ's decision was based on a valid hypothetical to a VE and the VE's resulting opinion. The error did not lie in the VE's testimony nor in the hypothetical to the VE. Rather, the error was in the ALJ's formulation of the physical RFC for Ms. French's left upper extremity, which formed the basis for the hypothetical and the VE's testimony. Because the ALJ's formulation of Ms. French's physical RFC is not supported by substantial evidence in the record (as to her left upper extremity), the court must remand for all the reasons discussed above.
Ms. French also argues that the ALJ cannot prove there are other jobs in the national economy which she is capable of performing.
For the reasons discussed above, the Commissioner's denial of benefits is not supported by substantial evidence in the record. Ms. French requests reversal of the Commissioner's decision with remand and instructions for an award of benefits, or in the alternative reversal with remand and instructions to reconsider her case. 42 U.S.C. § 405(g) governs judicial review of final decisions made by the Commissioner of the Social Security Administration. It authorizes two types of remand orders: (1) sentence four remands and (2) sentence six remands. A sentence four remand authorizes the court to enter a judgment "affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
A sentence four remand is proper when the district court makes a substantive ruling regarding the correctness of the Commissioner's decision and remands the case in accordance with such ruling.
A sentence four remand is applicable in this case. Remand with instructions to award benefits is appropriate "only if the record overwhelmingly supports such a finding."
In this case, reversal and remand is warranted not because the evidence is overwhelming, but because the record evidence concerning Ms. French's left upper extremity RFC should be clarified and properly evaluated.
Based on the foregoing law, administrative record, and analysis, this court hereby
ORDERS that the Commissioner's decision is REVERSED and REMANDED for reconsideration pursuant to 42 U.S.C. § 405(g), sentence four.
