Opinion
CIVIL 1:23-CV-985
04-25-2024
ROGER AXE, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security,[1] Defendant.
Brann, Chief Judge.
REPORT AND RECOMMENDATION
Daryl F. Bloom, United States Magistrate Judge
I. Introduction
Roger Axe filed an application for disability and disability insurance benefits on February 24, 2020. A hearing was held before an Administrative Law Judge (“ALJ”), and the ALJ found that Axe was not disabled from his alleged onset date of December 4, 2019, through the date of the ALJ's decision, December 29, 2021.
Axe now appeals this decision, arguing that the ALJ's decision is not supported by substantial evidence. Specifically, Axe contends the ALJ failed to consider evidence of his limitations from his left shoulder radiculopathy, including limitations in his hands, and failed to include such limitations in the residual functional capacity assessment. After a review of the record, we conclude that the ALJ's decision is not supported by substantial evidence. Therefore, we recommend that the district court remand this matter for further consideration by the Commissioner.
II. Statement of Facts and of the Case
Roger Axe filed for disability and disability insurance benefits, alleging disability due to a lower back injury, chronic back pain, a bulging disc, radiculopathy in his lower extremities, neuropathy in his bilateral hands and fingers, spinal cord stimulator implant, and left arm pain/strain. (Tr. 79-80). He alleged an onset date of disability of December 4, 2019. (Tr. 80). Axe was 49 years old at the time of his alleged onset, had a limited education, and had past relevant work as a truck driver. (Tr. 35).
The medical record regarding Axe's impairments revealed that Axe suffered from chronic lower back pain prior to the onset date of disability. Thus, an MRI of the lumbar spine in February of 2017 revealed mild scoliosis and minimal L5-S1 degenerative disc disease. (Tr. 400-01). Treatment notes from Axe's primary care physician, Dr. Roger Palisoc, M.D., in July of 2019 indicate that Axe had a spinal cord stimulator implanted in 2017. (Tr. 415). Axe was prescribed oxycodone for his chronic back pain. (Tr. 458).
Because we are recommending that this case be remanded for a failure to consider evidence concerning Axe's physical impairments, we limit our discussion of the medical record to the relevant records regarding Axe's back and neck impairments.
In November of 2019, just prior to the alleged onset period, Axe complained of aching and shooting neck pain with tingling. (Tr. 460). On examination, he exhibited tenderness of the midline cervical upper thoracic area. (Tr. 461). At a neurosurgical follow up in January of 2020, it was noted that his neck pain was radiating down his left arm. (Tr. 420). Axe complained of difficulty sleeping and getting dressed due to his pain. (Id.). He reported left arm weakness, as well as numbness in his fingers. (Id.). On examination, he exhibited 5/5 strength in his bilateral upper extremities. (Tr. 424). Axe agreed to a referral for physical therapy for his continuing neck and back pain. (Tr. 421).
Axe began physical therapy in January of 2020. (Tr. 536). Throughout his treatment, physical therapy notes indicate that Axe experienced increased pain and numbness in both of his arms. (Tr. 487, 498). Ultimately, Axe requested to be discharged in March of 2020, as he continued to have increased pain. (Tr. 472). Later in March, Axe presented to the emergency room for a possible stroke. (Tr. 558). He reported experiencing numbness in the left side of his face and his left arm, as well as speech difficulties. (Id.). A physical examination revealed a sensory deficit in his left upper extremity, as well as weakness, although his motor strength was 4/5. (Tr 560).
At a follow up with Dr. Palisoc in June, Dr. Palisoc noted that UPMC was refusing to do an MRI because of Axe's nerve stimulation. (Tr. 577-78). At a neurosurgery visit around this time, Axe reported continuing pain in his left shoulder radiating down into his left arm. (Tr. 580-81). Treatment notes indicate that Axe had been experiencing these symptoms since September of 2019. (Tr. 581). On examination, Axe exhibited pain with internal and external rotation of his left shoulder, but he had 5/5 strength in his upper extremities. (Id.). The provider ordered an MRI of Axe's left shoulder. (Id.). Treatment notes from pain management at this time noted Axe's reports of numbness, tingling, and weakness in his grip strength. (Tr. 588-89). On examination, his Spurling's test was positive on his left side, and he exhibited muscular tenderness but had 4/5 strength in his left upper extremity. (Tr. 592). Also in June of 2020, at a follow up with neurology, it was noted that his symptoms since his stroke had improved 75%. (Tr. 596).
Axe underwent an internal medicine examination with Dr. Ahmed Kneifati, M.D., in July of 2020. (Tr. 672-75). On examination, Axe exhibited tenderness in the anterior left shoulder, C5-6 cervical spine but had 5/5 strength in his upper and lower extremities. (Tr. 674-75). Axe's hand and finger dexterity were intact, and he was able to zip, button, and tie laces. (Tr. 675). Dr. Kneifati opined that Axe could lift and carry up to 10 pounds occasionally due to his decreased shoulder and lumbar range of motion; and could occasionally feel and reach overhead with his left arm. (Tr. 677, 679). Around this time, an EMG of Axe's left shoulder demonstrated “evidence most compatible with C5 radiculopathy and ongoing active nerve root irritation as well as probable chronic C8 radiculopathy,” which was noted to possibly correlate with Axe's chief complaint of radiating neck pain. (Tr. 690-91).
Axe received epidural steroid injections for his left-side neck pain in September of 2020. (Tr. 717-19). It was noted that Axe's history and physical findings were “consistent with cervical spondylosis and radiculopathy.” (Tr. 719). At a follow up visit, Axe reported that the injections had only provided him with minimal relief for three days. (Tr. 728). It was noted that Axe would continue to follow up with pain management and neurology. (Id.). A neurology examination in November 2020 revealed 4/5 strength in his left upper extremity with poor effort. (tr. 1237). Around this time, treatment notes from pain management indicated that Axe was continuing to experience severe left-sided neck pain, but that he was able to perform his day-to-day activities. (Tr. 1437). On examination, Axe exhibited mild loss of shoulder flexion and cervical rotation bilaterally, but he had 5/5 strength in his upper extremities. (Tr. 1440-41). Dr. Palisoc filled out a residual functional capacity questionnaire around this time, which did not set forth specific physical limitations but suggested that Axe would need a functional capacity evaluation. (Tr. 1310-16).
In March of 2021, Axe underwent a neuropsychological evaluation with Dr. Lawrence McCloskey, Ph.D., as a follow up after his stroke the previous year. (Tr. 1635). Regarding his upper extremities, Axe performed a Grooved Pegboard test to measure his manual speed and dexterity. (Tr. 1637). The results of this test revealed that Axe's left hand, which is his dominant hand, was “profoundly defective,” and his right hand was defective. (Id.). Further, his grip strength was noted to be “very defective” in his left hand and “defective” in his right. (Id.). Dr. McCloskey noted that Axe was unlikely to respond to more injections or physical therapy. (Id.). However, the record indicates that Axe received steroid injections for his lower back pain around this time. (Tr. 1462, 1502).
Axe followed up with neurosurgery in June of 2021, complaining of continuing neck pain radiating down his arms but worse on his left side. (Tr. 1623). He reported that his medications did not provide relief on a regular basis, but he did not want to try medical marijuana. (Id.). Treatment notes indicate that there was no structural abnormality, so surgery was not warranted, but Axe was to follow up with an outside pain management specialist. (Id.).
Dr. Palisoc filled out another residual functional capacity questionnaire in December of 2021. (Tr. 1715-21). Dr. Palisoc opined that Axe could never reach above shoulder level but could frequently grasp and perform fine manipulation. (Tr. 1717-18). He further asserted that Axe could occasionally lift and carry up to 9 pounds. (Tr. 1718). He opined that Axe had significant limitations with reaching, handling, and fingering due to tenderness, muscle spasms, and limitation of motion, and found that Axe could grasp, perform fine manipulation, and reach overhead 80% of the time. (Tr. 1719).
It was against the backdrop of this record that an ALJ held a hearing on Axe's disability application on December 15, 2021. (Tr. 44-58). Axe and a Vocational Expert both appeared and testified at this hearing. (Id.). Following this hearing, on December 29, 2021, the ALJ issued a decision denying Axe's application for disability benefits. (Tr. 19-43). In this decision, the ALJ first concluded that Axe had not engaged in substantial gainful activity since December 4, 2019, his alleged onset of disability. (Tr. 24). At Step 2 of the sequential analysis that governs disability claims, the ALJ found that Axe suffered from the following severe impairments: degenerative disc disease, chronic obstructive pulmonary disease, cerebrovascular accident, anxiety, depression, and adjustment disorder. (Id.). At Step 3, the ALJ concluded that none of these impairments met or equaled the severity of a listed impairment under the Commissioner's regulations. (Tr. 25-27).
Between Steps 3 and 4, the ALJ then concluded that Axe:
[H]a[d] the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally perform postural movements except never climb ladders, ropes, or scaffolds; frequently reach overhead with the left upper extremity; must avoid concentrated exposure to fumes, odors, dust, gases, and poor ventilation. Work that is limited to simple, routine tasks, involving only simple work-related decisions with few, if any, workplace changes; no production pace work; and only occasional interaction with supervisors and the public.(Tr. 27).
In reaching this RFC determination, the ALJ considered the objective medical record detailed above, the medical opinion evidence, and Axe's reported symptoms. Regarding the medical opinion evidence, the ALJ considered Dr. Kneifati's July 2020 opinion and found it unpersuasive. (Tr. 32). The ALJ found that Dr. Kneifati's lifting, carrying, and reaching limitations were not supported by the objective evidence showing poor effort by Axe at some of his appointments and Dr. Kneifati's own observation that Axe had 80% strength in his left hand. (Id.).
The ALJ also considered the November 2020 and December 2021 opinions of Dr. Palisoc, Axe's primary care provider, and found these opinions unpersuasive. (Doc. 33). As to the December 2021 opinion, the ALJ noted that this opinion contained specific limitations regarding Axe's ability to use his left upper extremity, finding that he could use his hands and reach 80% of the time. (Id.). However, the ALJ reasoned that Dr. Palisoc's treatment notes showed no more than mildly reduced strength in the upper extremities. (Id.).
Instead, the ALJ found the opinions of the state agency consulting physicians persuasive. (Tr. 33-34). These physicians opined in August and November of 2020, respectively, that Axe would be limited to light work with a limitation to only frequent overhead lifting with his left arm. (Tr. 90-94, 113-18). The ALJ reasoned that these limitations were consistent with the record findings of no focal deficits and full strength in June of 2020. (Tr. 34).
With respect to Axe's symptoms, the ALJ found that Axe's statements concerning the intensity, persistence, and limiting effects of his impairments were not entirely consistent with the medical evidence. (Tr. 28-32). Axe testified that he could not work because of his lower back and shoulder pain. (Tr. 47). He reported problems lifting and stretching his arms overhead due to pain in his left shoulder. (Tr. 48). He stated that he could not lift a gallon a milk solely with his left hand, which is his dominant hand, and that he had decreased hand strength. (Tr. 4950). He reported grocery shopping with his wife but that she lifted the heavier objects, as he had problems reaching and holding onto things with his left hand. (Tr. 51). He further testified that he did most things with his right hand, as he had limited use of his fingers on his left. (Tr. 51-52).
The ALJ found Axe's testimony to be inconsistent with the objective clinical findings. (Tr. 30-). Regarding his left shoulder and arm pain, the ALJ noted some objective findings of full strength in the upper extremities and the fact that the neurosurgery provider did not find a basis for surgery. (Tr. 31). He further noted that while there were some findings of decreased strength in the upper extremities, a poor effort was noted by Axe's providers. (Id.). Notably missing, however, was any discussion of the March 2021 findings regarding Axe's manual speed and dexterity, which were found to be profoundly defective, and the finding that Axe's grip strength in his left hand was very defective. (Tr. 1637).
The ALJ found at Step 4 that Axe was unable to perform his past work but found at Step 5 that Axe could perform the occupations of a sorter, garment tagger, and garment bagger. (Tr. 35-36). Accordingly, the ALJ found that Axe had not met the stringent standard prescribed for disability benefits and denied his claim. (Tr. 36).
This appeal followed. On appeal, Axe argues that the ALJ erred in his consideration of the objective medical evidence, which demonstrated that Axe was limited in the use of his left upper extremity. This case is fully briefed and is therefore ripe for resolution. For the reasons set forth below, we recommend that the court remand this matter for further consideration by the Commissioner.
III. Discussion
A. Substantial Evidence Review - the Role of this Court
This Court's review of the Commissioner's decision to deny benefits is limited to the question of whether the findings of the final decisionmaker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence means less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971).
A single piece of evidence is not substantial evidence if the ALJ “ignores, or fails to resolve, a conflict created by countervailing evidence.” Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)) (internal quotations omitted). However, where there has been an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). The court must “scrutinize the record as a whole” to determine if the decision is supported by substantial evidence. Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The Supreme Court has explained the limited scope of our review, noting that “[substantial evidence] means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Under this standard, we must look to the existing administrative record to determine if there is “‘sufficient evidence' to support the agency's factual determinations.” Id. Thus, the question before us is not whether the claimant is disabled, but rather whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was based upon a correct application of the law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).
When conducting this review, we must remain mindful that “we must not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we cannot re-weigh the evidence. Instead, we must determine whether there is substantial evidence to support the ALJ's findings. In doing so, we must also determine whether the ALJ's decision meets the burden of articulation necessary to enable judicial review; that is, the ALJ must articulate the reasons for his decision. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). This does not require the ALJ to use “magic” words, but rather the ALJ must discuss the evidence and explain the reasoning behind his or her decision with more than just conclusory statements. See Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009) (citations omitted). Ultimately, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ
To receive disability benefits under the Social Security Act, a claimant must show that he or she is unable to “engage in 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 12 months.” 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). This requires a claimant to show a severe physical or mental impairment that precludes him or her from engaging in previous work or “any other substantial gainful work which exists in the national economy.” 42 U.S.C. §423(d)(2)(A); 42 U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§404.1505(a), 416.905(a). To receive benefits under Title II of the Social Security Act, a claimant must show that he or she is under retirement age, contributed to the insurance program, and became disabled prior to the date on which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).
In making this determination, the ALJ follows a five-step evaluation. 20 C.F.R. §§404.1520(a), 416.920(a). The ALJ must sequentially determine whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has a severe impairment that meets or equals a listed impairment; (4) is able to do his or her past relevant work; and (5) is able to do any other work, considering his or her age, education, work experience and residual functional capacity (“RFC”). 20 C.F.R. §§404.1520(a)(4), 416.920(a)(4).
Between Steps 3 and 4, the ALJ must also determine the claimant's residual functional capacity (RFC). RFC is defined as “that which an individual is still able to do despite the limitations caused by his or her impairment(s).” Burnett, 220 F.3d at 121 (citations omitted); see also 20 C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ must consider all the claimant's medically determinable impairments, including any non-severe impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2). Our review of the ALJ's determination of the plaintiff's RFC is deferential, and that determination will not be set aside if it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002).
The claimant bears the burden at Steps 1 through 4 to show a medically determinable impairment that prevents him or her from engaging in any past relevant work. Mason, 994 F.2d at 1064. If met, the burden then shifts to the Commissioner to show at Step 5 that there are jobs in significant numbers in the national economy that the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§404.1512(f), 416.912(f); Mason, 994 F.2d at 1064.
With respect to the RFC determination, courts have followed different paths when considering the impact of medical opinion evidence on this determination. While some courts emphasize the necessity of medical opinion evidence to craft a claimant's RFC, see Biller v. Acting Comm'r of Soc. Sec., 962 F.Supp.2d 761, 778-79 (W.D. Pa. 2013), other courts have taken the approach that “[t]here is no legal requirement that a physician have made the particular findings that an ALJ adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 Fed.Appx. 6, 11 (3d Cir. 2006). Additionally, in cases that involve no credible medical opinion evidence, courts have held that “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings v. Colvin, 129 F.Supp.3d 209, 214-15 (W.D. Pa. 2015).
Given these differing approaches, we must evaluate the factual context underlying an ALJ's decision. Cases that emphasize the importance of medical opinion support for an RFC assessment typically arise in the factual setting where well-supported medical sources have found limitations to support a disability claim, but an ALJ has rejected the medical opinion based upon an assessment of other evidence. Biller, 962 F.Supp.2d at 778-79. These cases simply restate the notion that medical opinions are entitled to careful consideration when making a disability determination. On the other hand, when no medical opinion supports a disability finding or when an ALJ relies upon other evidence to fashion an RFC, courts have routinely sustained the ALJ's exercise of independent judgment based upon all the facts and evidence. See Titterington, 174 Fed.Appx. 6; Cummings, 129 F.Supp.3d at 214-15. Ultimately, it is our task to determine, considering the entire record, whether the RFC determination is supported by substantial evidence. Burns, 312 F.3d 113.
C. Legal Benchmarks for the ALJ's Assessment of Medical Opinions
The plaintiff filed this disability application in February of 2020 after Social Security Regulations regarding the consideration of medical opinion evidence were amended. Prior to March of 2017, the regulations established a hierarchy of medical opinions, deeming treating sources to be the gold standard. However, in March of 2017, the regulations governing the treatment of medical opinions were amended. Under the amended regulations, ALJs are to consider several factors to determine the persuasiveness of a medical opinion: supportability, consistency, relationship with the claimant, specialization, and other factors tending to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(c).
Supportability and consistency are the two most important factors, and an ALJ must explain how these factors were considered in his or her written decision. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); Blackman v. Kijakazi, 615 F.Supp.3d 308, 316 (E.D. Pa. 2022). Supportability means “[t]he more relevant the objective medical evidence and supporting explanations . . . are to support his or her medical opinion(s) ....the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The consistency factor focuses on how consistent the opinion is “with the evidence from other medical sources and nonmedical sources.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
While there is an undeniable medical aspect to the evaluation of medical opinions, it is well settled that “[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). When confronted with several medical opinions, the ALJ can choose to credit certain opinions over others but “cannot reject evidence for no reason or for the wrong reason.” Mason, 994 F.2d at 1066. Further, the ALJ can credit parts of an opinion without giving credit to the whole opinion and may formulate a claimant's RFC based on different parts of different medical opinions, so long as the rationale behind the decision is adequately articulated. See Durden v. Colvin, 191 F.Supp.3d 429, 455 (M.D. Pa. 2016). On the other hand, in cases where no medical opinion credibly supports the claimant's allegations, “the proposition that an ALJ must always base his RFC on a medical opinion from a physician is misguided.” Cummings, 129 F.Supp.3d at 214-15.
D. This Case Should be Remanded to the Commissioner.
As we have noted, the ALJ's decision must be accompanied by “a clear and satisfactory explication of the basis on which it rests,” Cotter, 642 F.2d at 704, and the ALJ must “indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding.” Schaudeck v. Commr of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999). After consideration, we conclude that the ALJ's RFC determination is not supported by an adequate explanation.
Axe contends that the ALJ failed to discuss the findings of the March 2021 Pegboard test, which showed that he was severely limited in the use of his hands. He asserts that this objective medical evidence corroborates his subjective testimony regarding his limitations with his upper extremities, as well as the opinions of his treating provider and Dr. Kneifati, who limited him to occasional reaching overhead and opined that he had significant limitations in reaching, handling, and fingering. For his part, the Commissioner contends that the Pegboard test does not constitute a medical opinion, and thus, the ALJ was not required to assess it under the medical opinion regulations.
While the Pegboard test may not constitute a medical opinion under the Commissioner's regulations, we conclude that the ALJ's failure to discuss the results of this test as it relates to Axe's ability to use his upper extremities requires remand. Here, while the record contained some normal musculoskeletal findings, the record also contained treatment notes that indicated Axe consistently complained of pain, numbness, and tingling, particularly in his left upper extremity. The record further contained two medical opinions-one from Dr. Kneifati in July of 2020 and one from Dr. Palisoc in December of 2021-that suggested Axe was limited in the use of his left upper extremity. Dr. Kneifati limited Axe to lifting and carrying up to ten pounds occasionally due to his decreased shoulder and lumbar range of motion, and occasionally feeling and reaching overhead with his left arm. (Tr. 677, 679). Dr. Palisoc limited Axe to lifting and carrying up to nine pounds, and opined that Axe had significant limitations with reaching, handling, and fingering due to tenderness, muscle spasms, and limitation of motion. (Tr. 1718-19).
The ALJ found these opinions unpersuasive, relying on findings in the record of full strength in Axe's upper extremities during the relevant period. Additionally, the ALJ specifically noted the “lack of hand abnormalities in treating provider visits” to find that Axe had no limitation with the use of his hands. (Tr. 33). However, the ALJ did not discuss the Pegboard results at all in his analysis of Axe's claim, particularly with respect to any limitations Axe might have had with the use of his hands. Curiously, the ALJ referenced other findings in the March 2021 neuropsychological evaluation but failed to even mention the Pegboard results as it related to his finding that Axe had no limitation with the use of his hands.
While the ALJ does not have to specifically consider every piece of evidence in the record explicitly, he does have an obligation to “discuss the evidence that supports the decision, the evidence that [he] rejected, and explain why [he] accepted some evidence but rejected other evidence.” Kristie F v. Kijajkazi, 2022 WL 795745, at *7 (D.N.J. Mar. 16, 2022) (citing Cotter, 642 F.2d at 705-06). Here, because the ALJ failed to mention the results of the Pegboard test, which found that Axe's manual speed and dexterity, as well as his grip strength, were defective, “the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705. As one court in this circuit has concluded, remand is appropriate in a case such as this one, where “the ALJ did not acknowledge [the] finding that Plaintiff's test performance reflected severely impaired abilities with both hands, [did not] include any motor limitations in the RFC[,] [and] . . . offered no explanation for this omission.” Kristie F., 2022 WL 795745, at *8.
Here, the ALJ failed to discuss objective medical findings regarding Axe's ability to use his upper extremities. Further, the ALJ discounted two medical opinions in the record that imposed limitations on Axe's use of his upper extremities. Because the ALJ did not explain if or why he rejected these objective findings, which would appear to be consistent with the opinions of these medical providers, we cannot conclude that the ALJ's RFC determination is supported by an adequate explanation. Accordingly, a remand is required for further consideration of these issues.
While we reach this conclusion, we note that nothing in this Report and Recommendation should be deemed as expressing a judgment on the ultimate outcome of this matter. Rather, that task is left to the ALJ on remand.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should be REMANDED for further consideration.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her 28 discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.