The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISON
HENRY GEIGER, ) CASE NO. 1:20-CV-02486-CEH
)
Plaintiff, ) CARMEN E. HENDERSON
) UNITED STATES MAGISTRATE JUDGE
v. )
)
COMMISSIONER OF SOCIAL SECURITY, ) MEMORANDUM OPINION & ORDER
)
Defendant, )
)
This is an action by Henry Geiger (“Claimant” or “Geiger”) under 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of Social Security denying his application
for disability insurance benefits (“DIB”).
The parties have consented to my jurisdiction. This matter is before the Court on the
Commissioner’s motion to remand for further administrative proceedings pursuant to sentence
four of 42 U.S.C. § 405(g) and to enter judgment pursuant to Federal Rule of Civil Procedure 58.
Claimant objects to the remand for further proceedings and requests that the matter be remanded
for an award of benefits. For the reasons set forth below, the Court GRANTS the Commissioner’s
motion IN PART and REMANDS the matter to the Commissioner for an award of benefits.
I. Procedural History
Claimant originally filed for disability on August 27, 2015. Since then, he has had three
administrative hearings, twice remanded by the Appeals Council for further proceedings. As set
forth by Claimant (and not disputed by the government) the procedural history is as follows:
Plaintiff, Henry Herbert Geiger, filed an application for disability
insurance benefits on August 27, 2015.[ ] (Tr. 559-560). He alleged
disability since December 17, 2007 due to type1 [sic] diabetes,
spinal stenosis, retinopathy, neuropathy, amputation of left index
finger, depression, neck pain, high blood pressure, muscular pain
and acute bronchitis. (Tr. 608). Mr. Geiger’s application was denied
initially and upon reconsideration. He then requested a hearing
before an Administrative Law Judge (“ALJ”). On November 9,
2016, a hearing was held before ALJ Catherine Ma. Mr. Geiger,
represented by counsel, appeared and testified. Also making an
appearance and testifying was Kathleen Reis, vocational expert. (Tr.
243-300). On June 19, 2017, the ALJ issued a Notice of Decision –
Unfavorable. (Tr. 321-341). In a notice dated December 22, 2017,
the Appeals Council vacated the decision of the ALJ and remanded
the claim. The Appeals Council determined that the ALJ did not
articulate a basis for assigning a limited range of light work. Upon
remand, the ALJ was instructed to obtain evidence from a medical
expert to clarify the nature and severity of Mr. Geiger’s impairments
through March 31, 2010, give further consideration to Mr. Geiger’s
maximum residual functional capacity and, if necessary, obtain
supplemental evidence from a vocational expert. (Tr. 342-345).
A supplemental hearing was held on June 13, 2018 before ALJ Ma.
Mr. Geiger, represented by counsel, again appeared and testified.
Deborah Lee, vocational expert appeared and testified. Robert
Sklaroff, medical expert, appeared by telephone and testified. (Tr.
173- 242). On October 18, 2018, the ALJ issued a Notice of
Decision – Unfavorable. (Tr. 346-371). In a notice dated August 13,
2019, the Appeals Council again vacated the decision of the ALJ.
The Appeals Council determined there was an improper dialog
between the medical expert and the vocational expert. Further, the
residual functional capacity contained internally inconsistent
limitations with respect to claimant’s left upper extremity; Mr.
Geiger cannot simultaneously have “no functional use of the left
hand” while also being able to “assist the right hand with pushing,
pulling, lifting and carrying”. Additionally, the vocational expert
testified that it would take longer to become proficient in unskilled
jobs when considering the left upper extremity restrictions. The
Appeals Council noted that it is unclear how allowing more time to
learn the job than contemplated under the Dictionary of
Occupational Titles is not an accommodation. The ALJ did not
resolve the conflicts between the vocational expert testimony and
the information contained in the Dictionary of Occupational Titles.
Upon remand, the ALJ was instructed to give further consideration
to Mr. Geiger’s maximum residual functional capacity and provide
rationale with specific references to evidence of record in support of
the assessed limitations and obtain supplemental evidence from a
vocational expert to clarify the effect of the limitations on Mr.
Geiger’s occupational base. As the case was previously remanded
to the same ALJ, the Appeals Council directed the case be assigned
to a different ALJ. (Tr. 374-376).
Pursuant to the Appeals Council remand order, a supplemental
hearing was held December 3, 2019 before ALJ Susan Guiffre. Mr.
Geiger, represented by counsel, appeared and testified. Daniel
Simone, vocational expert, also made an appearance and testified.
(Tr. 145- 172). On December 23, 2019, the ALJ issued a Notice of
Decision – Unfavorable. (Tr. 112-139). In a notice dated September
18, 2020, the Appeals Council declined to review the decision of the
ALJ. (Tr. 101-106). The ALJ’s decision of December 23, 2019
thereby became the final decision of the Commissioner.
Dissatisfied with that decision and having exhausted all of his
administrative remedies, Mr. Geiger now brings this appeal before
the United States District Court for the Northern District of Ohio to
determine whether the Commissioner’s decision is supported by
substantial evidence.
(ECF No. 16 at 1-3).
Following the last hearing, ALJ determined that “[t]hrough the date last insured, the
claimant had the following severe impairments: amputation of the left finger, fracture of the left
arm, and degenerative joint disease and degenerative disc disease of the cervical and lumbosacral
spine (20 CFR 404.1520(c)).” (ECF No. 15, PageID #: 206). The ALJ found that Claimant had the
residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR 404.1567(b)
except he could have never climbed ladders, ropes and scaffolds, could only have crawled
frequently, and could have only used the left hand occasionally for grasping but not fingering.”
(ECF No. 15, PageID #: 212-213). Ultimately, the ALJ found that a significant number of jobs
exist in the national economy that the Claimant can perform considering his age, education, work
experience, and RFC. (ECF No. 15, PageID #: 215).
On appeal to this Court, Claimant raised two issues for review:
1. At step five, the ALJ found that Mr. Geiger is capable of
performing a significant number of jobs in the national
economy. This finding is unsupported by substantial
evidence because the ALJ’s residual functional capacity
finding does not adequately consider the opinions of the
medical sources of record.
2. At step two, the ALJ found that Mr. Geiger’s mental
impairment is nonsevere. This finding is unsupported by
substantial evidence when the evidence demonstrates that
Mr. Geiger’s mental impairment significantly impairs his
ability to relate to others.
(ECF No. 16 at 1).
At issue here is the ALJ’s analysis of the opinion provided by Dr. Robert Sklaroff who
opined that Claimant’s left hand was not functional. Dr. Sklaroff testified “that the hand is not
functional, relative to grip strength and apposition of index finger tip to the third finger tip,
notwithstanding the amputation and all the other limits -- in other words, he can't compensate with
the fourth or the fifth fingers either.” (ECF No. 15, PageID #: 302). And that “the crush injury to
Mr. Geiger’s hand knocked out using the hand in any meaningful way which is mutually exclusive
of otherwise being able to compensate and engage in ADLs.” (ECF No. 15, PageID #: 302). Dr.
Sklaroff stated, “right hand, okay. Left hand, not functional, period.” (ECF No. 15, PageID #: 307).
Dr. Sklaroff clarified that no functioning of the left hand means no handling, fingering or feeling.
(ECF No. 15, PageID #: 317). The ALJ gave Dr. Sklaroff’s opinion “great weight” but failed to
include the severe limitations to Claimant’s left hand in the RFC. Specifically, the ALJ stated:
At the hearing, the undersigned also received the testimony of
an impartial medical expert, Robert B. Sklaroff M.D. Dr.
Sklaroff testified that the record supports the finding of the
impairments noted above, and would limit him to lift and/or carry
50 lbs. occasionally, 25 lbs. frequently; stand and/or walk for about
6 hours in an 8-hour workday; sit for about 6 hours in an 8-hour
workday; and can push and/or pull as much as he can lift and/or
carry; and no extreme temperatures, fumes, or dust (Hearing
Testimony). The medical expert testified under oath and was
subject to cross-examination at hearing. Dr. Sklaroff has an
applicable medical specialty and is Board Certified in Internal
Medicine (Exhibit 23F). He also has specialized Social Security
disability program knowledge and experience serving as
independent, objective, neutral and impartial medical expert
evaluating Social Security disability cases. Dr. Sklaroff personally
reviewed the entire medical record including the most up to date
medical exhibits and offered a thorough analysis of the medical
evidence pertinent to his medical expertise. Dr. Sklaroff offered an
insightful and persuasive explanation in support of his medical
opinion. Lastly, his medical opinions are consistent with the record
as a whole. The undersigned gives great weight to Dr. Sklaroff’s
opinion as his medical opinions are generally consistent with the
medical evidence of record and the record as a whole to the
extent reflected in the residual functional capacity assessed
above. However, the undersigned notes the evidence does not
support limitations to exposure to extreme temperatures, fumes,
or dust supported by the claimant’s admission of improvement
following the doctor’s testimony.
(ECF No. 15, PageID #: 214). The Commissioner agrees that the ALJ improperly analyzed Dr.
Sklaroff’s testimonial opinion but argues that the matter should be remanded for de novo review
and a new decision by an ALJ. Claimant states that there is no question of fact that needs to be
determined and, thus, this Court should remand for an award of benefits. The Court agrees with
Claimant.
II. Law and Analysis
A district court may reverse the decision of the Commissioner and remand for an award of
benefits “only if all essential factual issues have been resolved and the record adequately
establishes a plaintiff’s entitlement to benefits.” Faucher v. Secretary of Health and Human
Services, 17 F.3d 171, 176 (6th Cir. 1994) (citations omitted). “A judicial award of benefits is
proper only where the proof of disability is overwhelming or where the proof of disability is strong
and evidence to the contrary is lacking.” Id. (citing Mowery v. Heckler, 771 F.2d. 966, 973 (6th
Cir. 1985)).
The extent of Claimant’s functional use of his left hand is no longer a question of fact. The
Commissioner’s suggestion that there is conflicting evidence regarding Claimant’s functional use
of his left hand is not well taken. In support of remanding for further proceedings, the
Commissioner states: “There have been multiple hearings with conflicting views on whether
accommodating Dr. Sklaroff’s opinion would preclude Plaintiff from working. One vocational
expert testified that he could still perform work with no functional use of the left hand, while
another indicated that he could not. (Tr. 170, 224, 230, 232). The ALJ also pointed out that the
claimant could drive and do light housework, which indicates some ability to use the left hand.
(Tr. 120, 125).” (ECF No. 18 at 1-2). Although there is evidence that Claimant continued to engage
in driving, light housework, laundry, and preparation of light meals (ECF No. 15, PageID #: 949),
there is no evidence that he performed any of those functions with his left hand. In fact, the
evidence supports that Claimant’s only “use” of his left hand is to assist in bracing his right. (See
ECF No. 15, PageID #: 215).
The evidence supports Dr. Sklaroff’s opinion that Claimant has no functional use of his
left hand. In July 2008, Dr. Purohit opined that Claimant may “perhaps” be capable of some type
of sedentary job with minimal use of the left hand (ECF No. 15, PageID #: 986), but further
explained that Claimant could return to a job “with modifications so he does not have to use his
left hand” (ECF No. 15, PageID #: 987). This opinion followed Dr. Purohit’s assessment that
Claimant “had sustained a crushing injury to his left hand and index finger in a severely
comminuted fracture with no viability of the tissues, so they had to perform a re-amputation of the
second finger of the left hand…he also had comminuted fractures of the distal phalanx of the
thumb and laceration of the thumb…he has a functional thumb…[t]he third finger has developed
an ankylosis.” (ECF No. 15, PageID #: 985). In April 2009, Dr. Kovesdi recommended that
Claimant not use his left hand at all. (ECF No. 15, PageID #: 960). This recommendation followed
Dr. Kovesdi’s review of the medical records and an examination of Claimant from which he
assessed:
Examination of his left wrist reveals crepitus at the distal radioulnar
joint with 70 degrees of active supination and active pronation.
He has multiple well-healed scars on the dorsum and the palm
of the left band with the second metacarpal ray resection and the
complete amputation of the index finger. There is tenderness
along those radial-sided scars. His thumb movement is otherwise
within normal limits and comfortable. He has aokylosis of the
middle finger/long finger/third finger at the PIP joint at 60
degrees without swelling and otherwise with grossly intact
circulatory and neurological findings to the 3 remaining digits. He
has normal flexion and extension of the ring finger and the fifth digit
without swelling. He can grip with those two fingers, but his pinch
with the third finger and the thumb is difficult due to the ankylosis
of the long digit.
(ECF No. 15, PageID #: 959). In March 2010, Dr. Flanagan opined that Claimant has total loss of
use of his left hand for all practical purposes. (ECF No. 15, PageID #: 935). During Dr. Flanagan’s
examination of Claimant, “[t]wo and three finger pinch grips were attempted by Mr. Geiger is
unable to approximate his thumb to the middle finger of his left hand.” (ECF No. 15, PageID #
935). Dr. Flanagan explained:
It is my opinion based upon the allowed condition of 927.20
crushing injury of hand, left, and 886.0 amputation of the left second
finger, in addition to the limitation of motion found on my
examination of the left hand, that Mr. Geiger has total loss of use of
the left hand for all practicable purposes. His left index finger is
surgically absent. He has very significant limitation of motion of
the left thumb. He has less significant limitation of motion in the
left middle finger. His grip strength is moderately severely reduced
in the left hand. He is unable to perform a pinch-type maneuver.
Therefore, it is my opinion that he does indeed have total permanent
loss of use of the left hand to such a degree that the affected body
part is useless for all practicable purposes.
(ECF No. 15, PageID #: 935).
Based on an examination of the record evidence and the medical expert opinions, the Court
agrees with Claimant that “all factual issues have been resolved” Faucher, 17 F.3d. at 176, and
that proof of Claimant’s total and permanent loss of use of his left hand is overwhelming.
The Court further finds that the record adequately establishes that Claimant is entitled to
benefits. Claimant correctly states that the vocational experts support that there are no jobs
available for an individual with Claimant’s limitations should those limitations include no use of
his left hand. Two vocational experts, from Claimant’s first and third hearings, testified that with
no functional use of his left hand, there would be no jobs available in the national economy for
Claimant to perform. (ECF No. 15, PageID #: 259, 387-388). As Commissioner points out, one
vocational expert, from Claimant’s second hearing, identified jobs outside of the DOT (ECF No.
15, PageID #: 319); however, that same vocational expert conceded that it would take a one-handed
person longer to become proficient at the jobs identified (ECF No. 15, PageID #: 328-329). The
Appeals Council considered this testimony and noted that it is unclear how allowing more time to
learn the job than contemplated under the DOT is not an accommodation. (ECF No. 15, PageID #:
464). If the employer would have to provide extra time only to the hypothetical individual, that is
the definition of an accommodation. According to Social Security Ruling 11-2p when determining
whether an individual can do other work which exists in the national economy, the Social Security
agency does not consider whether the individual could do the work with an accommodation. (ECF
No. 15, PageID #: 464). The Appeals Council then remanded the matter to a new ALJ with specific
instructions to “[o]btain supplemental evidence from a vocational expert to clarify the effect of the
assessed limitations on the claimant’s occupational base (Social Security Ruling 83-14).” (ECF
No. 15, PageID #: 465).
Thus, two vocational experts have concluded that if Claimant has no functional use of his
left hand, then there would be no jobs in the national economy for him to perform. A third
vocational expert opined that jobs would exist, but only with an accommodation — which is not
allowed for consideration.
Because there is no material conflicting evidence in regard to the severity of Claimant’s
left hand impairments and the record adequately establishes that Claimant is entitled to benefits,
the case must be remanded to the Commissioner for an award of benefits pursuant to sentence four
of 42 U.S.C. § 405(g).
HI. Conclusion
The Commissioner’s decision is REVERSED, and this matter is REMANDED for an
award of benefits pursuant to sentence four of 42 U.S.C. § 405(g). Faucher, 17 F.3d. at 176.
A Judgment Entry will be separately published.
IT IS SO ORDERED
Dated: December 22, 2021
s/ Carmen E. Henderson
CARMEN E. HENDERSON
U.S. MAGISTRATE JUDGE