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Shanabarger v. Berryhill

United States District Court, D. Hawaii

August 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          J. Michael Seabright, Chief United States District Judge.


         This is 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 proceedings.


         A. Factual Background

         On 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.

         In the 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.

         Plaintiff 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 finding itself.

         1. The Evidence Before the ALJ

         a. Examining Physicians Lee & Taylor

         On 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.” Id.

         On 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.

         b. Other Medical Evidence

         On 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.

         On 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.

         On 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.

         c. Non-Examining Physicians Fujikami & Shibuya

         On July 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.

         2. The ...

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