UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Suzanne Borsody

v. Civil No. 13-cv-468-JL Opinion No.

Carolyn W. Colvyn, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Suzanne Borsody has appealed the Social Security

Administration’s denial of her application for a period of

disability and disability insurance benefits. An administrative

law judge at the SSA (“ALJ”) ruled that, despite Borsody’s severe

impairments (bipolar disorder, fibromyalgia, and carpal tunnel

syndrome, among others), she retains the residual functional

capacity (“RFC”) to perform jobs that exist in significant

numbers in the national economy, and, as a result, is not

disabled. See

(a). The Appeals Council

later denied Borsody’s request for review of the ALJ’s decision,

see

§ 404.968(a), with the result that the ALJ’s decision

became the SSA’s final decision on Borsody’s application, see id.

§ 404.981. Borsody appealed the decision to this court, which

has jurisdiction under

(g) (Social Security).

Borsody has filed a motion to reverse the decision. See

L.R. 9.1(b)(1). Among other things, she argues that the ALJ

failed to properly evaluate much of the medical opinion evidence bearing on the RFC determination. The Commissioner of the SSA

has cross-moved for an order affirming the ALJ’s decision, see

L.R. 9.1(d), attempting to defend the ALJ’s handling of the

opinion evidence. As more fully explained below, the court

agrees with Borsody that the ALJ failed to articulate his reasons

for discounting medical opinion evidence establishing that

Borsody’s RFC was more limited than the ALJ found and,

accordingly, grants her motion to reverse (and denies the

Commissioner’s motion to affirm) the ALJ’s decision.

The ALJ found that Borsody retained the RFC to perform

sedentary work with a number of limitations. In relevant part,

the ALJ stated these limitations to be that Borsody “can

frequently reach above both shoulders, handle with her hand,

finger with her left hand.” As Borsody points out, however, a

physician who had examined her on behalf of the Florida

Department of Health in May 2009, Dr. Rhys House, observed that

Borsody’s “right hand had a reduced grip of 4/5 and was of little

use and she could not extend or use her right thumb and had loss

of sensation in all fingers.” House, who diagnosed Borsody with

carpal tunnel syndrome in both hands, further stated that her

right hand was “functionally useless as she is unable to grip or

manipulate small objects and relies on the use of her

[non-dominant] left hand for feeding herself and dressing.”

2 As the Commissioner points out, the ALJ noted some of

House’s opinions in his order--but, as Borsody points out, the

order does not explain why the ALJ rejected those opinions in

determining her RFC. The order merely states that “the medical

opinion of the state agency consultant [sic] in September 2008

and September 2009 is reflected in the [] stated [RFC].” While

these opinions, reached by two different physicians who did not

examine Borsody, did not include any limitations on her use of

her right hand, the ALJ’s order (which, it should be noted, does

not otherwise describe the consultants’ opinions) fails to

articulate any reason why those opinions were given more weight

than House’s differing conclusions on the subject.

The Commissioner does not argue to the contrary. Instead,

she suggests that, in determining Borsody’s RFC, the ALJ actually

“limited [her] to frequent reaching above her shoulders and

handling and fingering with her left hand.” Again, though, in

announcing his determination of Borsody’s RFC (which the

Commissioner acknowledges is “awkwardly phrased”), the ALJ stated

that she “can frequently reach above both shoulders, handle with

her hand, finger with her left hand.” Nothing on the face of

this statement indicates that Borsody can perform these

manipulative activities with her left hand only, and not with her

right, as House had concluded.

3 Nor, contrary to the Commissioner’s suggestion, did the ALJ

include any such limitation in his hypothetical question to the

vocational expert (“VE”) who testified at the hearing. In

identifying limitations for that purpose, the ALJ stated, in

relevant part, that the claimant could “frequently handle with

the left hand and fingers,” saying nothing about any limitations

on the use of the right hand.1 It strains credulity to suggest

that, by identifying minor limitations on Borsody’s use of her

left hand alone, the ALJ was indicating his belief that she could

not use her right hand at all; the considerably more likely

inference is that the ALJ said nothing about Borsody’s right hand

because he believed she faced no limitations in using it.

In any event, as Borsody points out, that is clearly how the

VE understood the ALJ’s hypothetical question, since, in

response, the VE identified three jobs that a claimant with those

limitations could perform--and all of those jobs require frequent

handling, at least according to the Dictionary of Occupational

Titles, or “DOT” (with which the VE stated that his testimony was

consistent). The VE was not asked whether a claimant could

nevertheless perform those jobs without the use of her dominant

1 The term “frequently” itself reflects a limitation in the sense that it means less often than “constantly.” Dep’t of Labor, Dictionary of Occupational Titles App. C, at IV (4th ed. rev. 1991).

4 hand. Indeed, at least one of the jobs, “lens inserter”--which

entails inserting lenses into sunglass frames--seems difficult if

not impossible to perform one-handed.2

So the record simply does not permit the inference that the

ALJ found, despite Borsody’s inability to use her right hand (and

her other limitations), she was capable of performing jobs that

exist in significant numbers in the national economy, and, as a

result, is not disabled. Instead, the record compels the

inference that the ALJ found Borsody had no limitations in using

her right hand, and that, accordingly, she could do the jobs the

VE had identified. While there is evidence to support such a

finding--most notably the opinions of Dr. Robert Dehgan, who

examined Borsody on behalf of the Florida Department of Health in

August 2009 and detected no manipulative limitations in either

hand--it was incumbent on the ALJ to state some basis for

crediting that evidence rather than the contrary opinion that

2 Some courts have held that, in classifying jobs to require frequent handling or fingering, “[t]he DOT does not contain any requirement of bilateral fingering ability or dexterity.” Carey v. Apfel,

(5th Cir. 2000); see also, e.g., Diehl v. Barnhart,

(E.D. Pa. 2005). Here, though, the Commissioner does not rely on this line of authority, or otherwise address Borsody’s argument that DOT requirements of handling or fingering necessarily require the ability to do so with both hands. Regardless, in most of the cases, the VE specifically testified that the jobs in question could be done one-handedly, see, e.g., Carey,

, and, as just discussed, there was no such testimony here.

5 House reached after examining Borsody just a few months earlier.

See

(c); Polanco-Quinones v. Astrue,

(1st Cir. 2012). As the Commissioner more or less

concedes, the ALJ failed to do so (or, for that matter, even to

acknowledge directly that a medical opinion existed that

conflicted with his findings).

Accordingly, Borsody’s motion to reverse the ALJ’s decision

(document no. 9) is GRANTED and this matter remanded to the SSA

so that House’s conclusions, and the other medical opinion

evidence of record, may be properly considered.3 See

(g). The Commissioner’s motion to affirm the ALJ’s decision

(document no. 13) is DENIED. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: January 13, 2015 cc: Raymond J. Kelly, Esq. T. David Plourde, AUSA

3 Borsody argues that the ALJ also failed to properly evaluate much of the other record evidence, including the opinion of her treating psychiatrist and Borsody’s subjective account of her limitations. Because the ALJ’s failure to properly consider House’s opinion necessitates reversal and remand in and of itself, the court need not reach those arguments.

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