BARBARA B. CRABB, District Judge.
Plaintiff Kenneth Ross is seeking review of a final decision by defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying his claim for disability insurance benefits under the Social Security Act and finding him capable of limited light level work. 42 U.S.C. § 405(g). Plaintiff seeks remand of that decision, contending that the administrative law judge who decided the case did not give adequate reasons for rejecting the opinions of plaintiff's treating physician and failed to consider his borderline age category when applying the agency's Medical Vocational Guidelines. For the reasons explained below, I am remanding this case for further consideration of plaintiff's borderline age category. On remand, the administrative law judge also should take care to consider all of the limitations assessed by plaintiff's treating physician, including any related to nonsevere impairments, and provide reasons for the weight she attributes to them.
The following facts are drawn from the administrative record (AR).
Plaintiff Kenneth Ross was born on November 26, 1959, making him 54 years old when he applied for benefits on May 20, 2014 and on his last insured date, September 30, 2014. AR 14-16. Plaintiff contends that he became disabled on October 20, 2011. However, he did not receive any medical care until April 3, 2014, when he was hospitalized for a left tibia and fibula fracture after he slipped on a rug in his home. AR 16-17, 19, 36.
In October 2011, plaintiff was laid off from his seasonal employment with Fleming Marine Construction, for which he installed and repaired seawalls. AR 36-37. He has been unemployed since that time but does some work on the property where he lives in exchange for room and board. AR 39, 42-45.
On April 18, 2014, orthopedic surgeon Dr. Hugh Bogumill performed surgery on plaintiff for intramedullary rodding of the left tibia. AR 19 (citing AR 287 and 291). Dr. Bogumill continued to treat plaintiff for the next two and a half years.
At a post-surgery followup visit on April 28, 2014, plaintiff reported that he was doing "okay" but had some discomfort
On May 28, 2014, plaintiff reported that he was having shoulder pain with any reaching and some stiffness and swelling in his foot. However, he stated that he thought he could start walking on his left leg. AR 261. At this visit, Dr. Bogumill diagnosed Dupuytren's contracture (a hand deformity pulling the finger into a bent position) in plaintiff's right ring finger, but noted that the condition was not causing plaintiff any functional problems. Again, Dr. Bogumill stated that he would consider treatment for plaintiff's shoulder and hand after plaintiff was off crutches. AR 262.
On June 27, 2014, plaintiff reported that he had discomfort in his calf and some swelling and was not wearing his brace or putting any weight on his leg. AR 301-02. Dr. Bogumill observed some but not excessive residual swelling in plaintiff's lower leg and foot and tenderness in his fibular shaft. X-rays also showed that plaintiff's fibula fracture showed no signs of healing over past 90 days. Dr. Bogumill stated that he advised plaintiff that fractures in this area are notorious for delayed unions and nonunions because of the watershed nature of the blood flow. He also explained that chronic tobacco use and diabetes delays healing. AR 302.
At Dr. Bogumill's recommendation, plaintiff began physical therapy on September 22, 2014. AR 427-30. Although he had very limited tolerance for weight-bearing activities at that time, his walking ability had progressed by September 29, 2014, when he reported wearing a walking boot while mowing his lawn and using just one crutch on occasion. AR 431. On October 6, 2014 (soon after the expiration of his date last insured), plaintiff reported that his leg was getting better each time he went to therapy and that he had been walking a lot with two crutches when the weather was good. AR 435. By the middle to end of October 2014, plaintiff reported that although he had ankle and foot pain, he could walk around his home without crutches. AR 320, 461. On November 14, 2014, plaintiff stated that he was able to snowplow his driveway and had been using only one or no crutch for weeks. AR 467. In early December 2014, plaintiff reported being able to tolerate "much more" activity without pain and only using one crutch for long-distance walking or climbing stairs. He was 75 percent weight-bearing on the left side. AR 324, 472, 484, 486. Plaintiff was discharged from therapy on December 29, 2014. At that time he reported that his knee was the most limiting factor for his activity and that he had not been using crutches and could be "pretty active" all day and then be really sore the next day. AR 494. Although plaintiff was rated as having moderate difficulty with his usual activities, squatting and walking one mile, he had no difficulty sitting for one hour and only a little bit of difficulty walking between rooms, performing light activities, walking two blocks and standing for one hour. AR 494-95.
During his appointments with Dr. Bogumill in January and February 2015, plaintiff complained of knee pain that hurt when he walked, knelt or squatted. In February 2015, plaintiff also reported some discomfort in his shoulder that became worse with reaching overhead. Dr. Bogumill noted that plaintiff's surgical repair
On October 22, 2015, a physician's assistant noted that plaintiff could walk two flights of stairs and four city blocks at a normal rate, and on examination, he had a normal gait and no musculoskeletal complaints. AR 332-33. Although Dr. Bogumill performed hand surgery on plaintiff in November 2015 to release his Dupuytren's contracture and continued to treat plaintiff's hand for a few months, there are no further treatment records concerning plaintiff's shoulder, knee or leg. AR 333-54, 519-83.
Dr. Bogumill diagnosed a left distal tibial proximal fibula fracture with calf, ankle and foot pain, stiffness, knee and ankle swelling and inability to bear weight without pain. AR 306. Plaintiff's left leg fracture required him to use a fracture boot on the left leg and crutches to move about. Dr. Bogumill assessed the following limitations:
AR 306-09.
Dr. Bogumill noted that plaintiff had left leg pain and swelling, was unable to walk without crutches and experienced weakness and stiffness in his left knee and ankle. AR 310. He assessed the following limitations, which were more restrictive than those he had assessed the previous month and included additional limitations related to plaintiff's shoulder and hand problems:
AR 310-13.
Dr. Bogumill stated that the above limitations had been in effect since plaintiff's leg injury in April 2014, and that the August 2014 report considered only plaintiff's leg injury and not all of plaintiff's "problems." AR 313. Dr. Bogumill also stated that plaintiff was "100% disabled" from working as a carpenter.
Three years after he had treated plaintiff, Dr. Bogumill completed a form entitled "treating source statement," in which he identified the following limitations for plaintiff:
AR 362-65.
Dr. Bogumill stated that plaintiff's "previous" scan (presumably from 2014)
On February 28, 2017, Administrative Law Judge Diane Davis held an administrative hearing at which plaintiff and a vocational expert testified. AR 31. Plaintiff testified that his knee never really healed but he had not gotten a cortisone injection or other treatment for it. He also testified that he never sought treatment for his right shoulder. AR 39-40. Plaintiff stated that his left leg is weak and still hurts. If he is on his feet more than three or four hours a day, it stays sore for a day or two. Sometimes he can walk up and down stairs but other times he favors his leg. He feels most sore when he walks or is on his feet four or five hours a day. AR 40-41.
Plaintiff testified that he goes boating twice a month, goes fishing and can drive for up to four hours at a time if he stretched for a bit. AR 41-42, 47-48. On the property where he lives, he mows the grass (of which there is a lot) with a riding mower once a week and does handyman, yard and snow removal work about three to four hours a day, three days a week. AR 41-45.
The administrative law judge issued a written decision on May 2, 2017, finding that plaintiff was severely impaired by a fracture of the left tibia and fibula. She found that his osteoarthritis of the right shoulder and DuPuytren's contracture of the right finger were "nonsevere." AR 17. She found also that plaintiff retained the residual functional capacity to perform light work limited by occasional kneeling, crouching, crawling and climbing and avoiding concentrated exposure to unprotected heights. AR 18. In reaching this decision, the administrative law judge gave little weight to the state agency physicians, who stated that plaintiff was capable of medium level work with manipulative limitations, because she believed that plaintiff had more restrictive limitations resulting from residual pain and soreness from his leg fractures. AR 20. The administrative law judge also gave little weight to the opinions of Dr. Bogumill for the following stated reasons:
The administrative law judge found that plaintiff could not perform his past work as a carpenter and construction worker. AR 21. She also noted that because plaintiff was 54 years old (or an individual "closely approaching advanced age") on his last insured date, the Medical Vocational Guidelines supported a finding of "not disabled" and did not require a determination whether plaintiff has transferable job skills.
In reviewing an administrative law judge's decision, I must determine whether the decision is supported by "substantial evidence," meaning "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Plaintiff contends that the administrative law judge erred in two respects: (1) not providing adequate reasons for rejecting the opinions of his treating physician; and (2) failing to properly consider his age category as borderline in applying the Medical Vocational Guidelines. Because I find plaintiff's arguments regarding his borderline age category to be dispositive, I will address that issue first and then address the administrative law judge's analysis of the treating physician opinions.
The agency classifies claimants who are 50 to 54 years old as individuals "closely approaching advanced age" and claimants who are 55 years old and older as individuals "of advanced age." 20 C.F.R. § 404, Subpt. P, App. 2. The distinction is important. For a claimant with a light work residual functional capacity in the "advanced age" category, the Medical-Vocational Guidelines direct a finding of "disabled" if the claimant does not have transferable skills. Rule 202.02. 20 C.F.R. § 404, Subpt. P, App. 2, Rule 202.02. In this case, the administrative law judge determined that it was unnecessary to determine whether plaintiff had transferrable skills because he was only 54 years old on his last insured date. Although the administrative law judge is technically correct, plaintiff criticizes her for mechanically applying the age classifications in his case when he was only two months shy of his 55th birthday on his last insured date.
The Court of Appeals for the Seventh Circuit has not discussed borderline age situations in any detail or identified what duty an administrative law judge has to articulate her consideration of an older age category. Other federal circuit courts have reached differing conclusions with respect to the issue, but most have stated that some discussion or recognition of a borderline age situation is warranted to insure that the administrative decision is supported by substantial evidence.
As plaintiff points out, the administrative law judge in this case failed to mention plaintiff's borderline age situation, cite the applicable regulation or analyze any of the relevant factors. In addition, there is at least some evidence of vocational adversity in this case because plaintiff has a limited education (10th grade) and had not worked since October 2011. AR 21, 203. Although the Commissioner points out that plaintiff has a commercial driver's license, she has not cited any authority to support her contention that such a skill means that plaintiff does not have "limited education" as that term is used in § 404.1563(b).
Accordingly, I cannot conclude that the administrative law judge committed harmless error in failing to consider whether the "advanced age" category should apply to plaintiff and am remanding this case for further consideration of plaintiff's borderline age situation. On remand, the administrative law judge should take care to follow agency regulations and guidance addressing this issue, explain how she applied the chosen age category and discuss the specific factor(s) she considered.
Under the law applicable at the time of plaintiff's hearing, treating physician opinions are entitled to controlling weight if they are supported by objective medical evidence and consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2);
Plaintiff contends that the administrative law judge gave insufficient reasons for giving little weight to Dr. Bogumill's three opinions and failed to consider the checklist factors. He points out that many of the limitations Dr. Bogumill assessed— especially those related to standing and walking—would have resulted in no more than a limited, sedentary residual functional capacity assessment, which would have precluded him from working.
As an initial matter, I note that although an administrative law judge is supposed to consider all of the factors in 20 C.F.R. § 404.1527(c), she does not need to discuss each one expressly in her opinion, so long as she otherwise explains why
The administrative law judge found Dr. Bogumill's August 2014 opinion unhelpful because it was issued only four months after plaintiff's surgery, from which he was recovering slowly. Plaintiff says little to challenge this rationale, stating only that the administrative law judge failed to provide any "legal basis" for relying on plaintiff's tobacco use as a reason for rejecting the limitations assessed by Dr. Bogumill. Although the administrative law judge "must not succumb to the temptation to play doctor and make their own independent medical findings,"
The administrative law judge's analysis of Dr. Bogumill's September 2014 opinion is more problematic. Although she was correct in noting that Dr. Bogumill had stated that plaintiff was 100 percent disabled from work as a carpenter, she failed to acknowledge that Dr. Bogumill assessed numerous detailed limitations related to plaintiff's overall ability to perform work activity, including limitations related to plaintiff's nonsevere hand and shoulder conditions. 20 C.F.R. § 404.1523 ("[W]e will consider the combined effect of all of your impairments without regard to" severity.);
Although Dr. Bogumill issued similar restrictions for plaintiff in February 2017, the administrative law judge reasonably determined that they were not relevant because the opinion post-dated the last insured period by over two years. In addition, Dr. Bogumill had not treated plaintiff recently and relied on scans and tests performed a few years earlier.
In sum, I am not convinced that the administrative law judge's analysis of Dr. Bogumill's opinions provides a basis for remand in this case. However, because I am remanding the case on other grounds, the administrative law judge should take care to consider all of the limitations assessed by plaintiff's treating physician, including any related to plaintiff's nonsevere impairments, and support her findings with substantial evidence.
IT IS ORDERED that the decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying plaintiff Kenneth Alexander Ross's application for disability benefits is REVERSED AND REMANDED under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The clerk of court is directed to enter judgment for plaintiff and close this case.
