United States District Court, D. Hawaii
BRENDA K. SHANABARGER Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REMANDING THE CASE FOR FURTHER
Michael Seabright, Chief United States District Judge.
an action brought under 42 U.S.C. § 405(g) to review a
final decision of the Acting Commissioner of Social Security,
Nancy A. Berryhill (“Commissioner” or
“Defendant”). Brenda K. Shanabarger
(“Plaintiff”) appeals Defendant's adoption of
the Administrative Law Judge's (“ALJ”) July
9, 2015 decision finding Plaintiff not disabled under the
Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f
(“July 9 Decision”). Plaintiff argues that the
July 9 Decision must be overturned because the ALJ
erroneously identified (and subsequently rejected)
examining physician opinions as
non-examining physician opinions. Based on the
following, the court REMANDS the case for further
November 15, 2012, Plaintiff filed an application for
disability insurance benefits, alleging disability since
December 6, 2007. Admin. R. (“AR”) 153-59, ECF
No. 13. Plaintiff later amended the alleged onset date of her
disability to November 24, 2011. Id. at 20. Her
claim was denied twice -- once on July 19, 2013, and again
upon reconsideration on May 1, 2014. Id. at 95-98,
102-04. On May 23, 2014, Plaintiff filed a request for a
hearing. Id. at 105. ALJ Nancy Lisewski conducted
the hearing on June 11, 2015, at which Plaintiff testified.
Id. at 20.
July 9 Decision, the ALJ found that Plaintiff had the
following severe impairments: “degenerative disc
disease with mild disc protrusion at ¶ 2-3, back pain,
and radiculopathy.” Id. at 22. But the ALJ
ultimately found that Plaintiff had “the residual
functional capacity to perform light work” and
“was capable of performing her past relevant work as a
Housekeeper cleaner/Night auditor.” Id. at 25,
27. Consequently, she determined that Plaintiff “was
‘not disabled' under sections 216(i) and 223(d) of
the Social Security Act through March 31, 2013, the last date
insured.” Id. at 28.
does not dispute the severe impairments found in the July 9
Decision. She only contests the subsequent residual
functional capacity (“RFC”) finding that her
limitations (resulting from those severe impairments) were
not extensive enough to qualify her for disability insurance
benefits. Thus, the court first focuses on the evidence
relevant to the RFC finding, and then turns to the RFC
The Evidence Before the ALJ
Examining Physicians Lee & Taylor
October 20, 2012, Dr. Mark Lee (“Dr. Lee”)
conducted a physical examination of Plaintiff for the State
of Hawaii Department of Human Services (“Hawaii
DHS”). Id. at 394. Under “ESTIMATED
FUNCTIONAL LIMITATIONS, ” Dr. Lee checked boxes to
indicate that Plaintiff: (1) can occasionally lift/carry less
than ten pounds; (2) cannot lift/carry frequently; (3) can
stand/walk for less than two hours with an assistive device;
and (4) can sit continuously with breaks every two hours for
less than six hours. Id. at 397. As a result, Dr.
Lee concluded that Plaintiff “is unable to participate
in any activities, except treatment or rehabilitation.”
February 6, 2013, Dr. Christopher Taylor (“Dr.
Taylor”) conducted another physical examination of
Plaintiff for Hawaii DHS. Id. at 388. Dr.
Taylor's findings were identical to Dr. Lee's, with
one exception: Dr. Taylor found that Plaintiff could
occasionally lift/carry exactly ten pounds, whereas
Dr. Lee found that Plaintiff could occasionally lift/carry
less than ten pounds. Compare Id. at 397
with Id. at 391.
Other Medical Evidence
October 31, 2012, Plaintiff visited the Kalihi-Palama Health
Center for a mammogram follow-up. Id. at 440-43. As
part of the visit's physical examination, Malia A.
Ribeiro APRN observed, “Gait and Station: walking w/
cane foot drop on right.” Id. at 442.
December 25, 2012, Plaintiff was admitted to Queen's
Medical Center for “weakness” resulting from
someone falling on her the previous week, which caused her to
fall and land on her hands and knees. Id. at 347-48.
Dr. Erica M. Garcia (“Dr. Garcia”) was her
attending provider. Id. at 347. Dr. Garcia's
notes state: “Coordination and gait normal. . . .
Patient is able to stand on tip-toes and heels, but complains
of left leg pain, that is chronic, while doing this. Perineal
sensation intact. No apparent facial droop, moving ext
symmetrically.” Id. at 350. She was discharged
that same day. Id. at 347.
March 21, 2013, Plaintiff visited with Dr. James W. Pearce
(“Dr. Pearce”) for “followup of lumbar
radiculopathy.” Id. at 331. Under
“Progress Notes, ” Dr. Pearce wrote: “There
is no motor asymmetry and no pronator drift. Ankle jerk
appears to be absent on the right but present on the left as
was present elsewhere one to 2[.]” Id. at
332. Because “her imaging show[ed] apparently nothing
that would lend itself to surgical repair, ” Dr. Pearce
“refer[red] her to physiatry for assistance in
controlling her back and leg pain.” Id.
Non-Examining Physicians Fujikami & Shibuya
18, 2013, Dr. N. Shibuya (“Dr. Shibuya”)
conducted an RFC assessment by reviewing Plaintiff's
medical records, primarily relying on the evidence discussed
above. Id. at 76-79. Dr. Shibuya concluded that
Plaintiff had a “light” RFC, specifically finding
that Plaintiff could: (1) occasionally lift/carry 20 pounds;
(2) frequently lift/carry 10 pounds; (3) stand/walk for 6
hours in an 8-hour workday; and (4) sit for 6 hours in an
8-hour workday. Id. at 76-77. On April 29, 2014, Dr.
R. Fujikami (“Dr. Fujikami”) conducted another
RFC assessment, reviewing the same records, and came to the
same conclusion as Dr. Shibuya. Id. at 88-92.