United States District Court, D. New Hampshire
James A. Byron
Andrew Saul, Commissioner Social Security Administration
MEMORANDUM AND ORDER
J. BARBADORO UNITED STATES DISTRICT JUDGE
Byron challenges the denial of his application for disability
insurance benefits pursuant to 42 U.S.C. § 405(g). He
contends that the Administrative Law Judge
(“ALJ”) committed reversible errors at steps
three through five of the sequential analysis required by 20
C.F.R. § 404.1520. The Commissioner, in turn, moves for
an order affirming the ALJ's decision. I deny Byron's
motion and affirm the Commissioner's decision.
is a 52-year-old man with high school education. He worked as
an HVAC technician for fifteen years. He alleged disability
as of October 2015, due to a torn tendon in his right arm,
right ulnar nerve transposition at elbow, carpal tunnel
syndrome, diabetes, a herniated disc in the neck, sleep
apnea, and a brain tumor.
application was initially denied in February 2017. On October
25, 2017, he testified at a hearing before ALJ Thomas
Merrill, who ultimately denied Byron's claim. See Tr.
17-28. The Appeals Council denied his request for review in
June 2018, rendering the ALJ's decision the final
decision of the Commissioner. See Tr. 3-8. Byron now appeals.
March 2015, Byron suffered a work-related injury to his right
elbow while carrying a tall ladder. After doing light-duty
work for the next several months, he stopped working in
July 2015 and April 2017, Byron underwent four surgeries to
his right arm. After an MRI showed a partial tear of the
extensor muscles in that arm, Dr. Richard Choi performed a
right epicondyle debridement and partial tendon excision. Tr.
262, 298. Byron had occupational therapy post-surgery. See
Byron continued to complain of pain and clicking in his right
elbow, Dr. Choi performed a second surgery, a right
radiocapitellar anterior capsulectomy, in October 2015. Tr.
260. Following the surgery, Byron did a second round of
occupational therapy. Tr. 352-78.
April 2016, Dr. Choi performed a third surgery on Byron's
right arm, a right ulnar nerve transposition, after an EMG
showed ulnar nerve neuropathy. Tr. 258, 450. Byron again
underwent occupational therapy. May and June 2016
occupational therapy records noted that he was restricted
from performing heavy activities with his right arm, but that
he remained independent in personal care activities, with
some limitations in more demanding activities such as
camping. Tr. 336.
follow-up visit in June 2016, Dr. Choi noted that Byron
reported pain over his right ulnar nerve, but that his
sensation and elbow motion were intact. Tr. 266-67. Later
that month, Dr. Choi's only clinical finding was radial
tunnel pain. Tr. 264-65. Byron's elbow motion was
unremarkable and there were no other sensory or motor
September 2016, Byron presented to his primary care
physician, Dr. Elias Nabbout, requesting sleep medication and
a referral to a second orthopedic surgeon. Tr. 309-10. Dr.
Nabbout observed normal sensation and motor strength, with no
abnormalities of the extremities, and full range of motion of
the joints without swelling or tenderness. Id.
following month, Byron reported to Dr. Steven Alter a history
of right arm pain and surgical treatment, but positive
findings were limited to tenderness and modest loss of right
grip strength, without loss of range of motion. Tr. 319-20.
He was able to make a fist and demonstrated normal wrist
strength. Id. An MRI of Byron's right elbow
performed that same month showed mild widening the
radiocapitellar joint and a mild sprain of the radial
collateral ligament. Tr. 452-53, 325.
December 2016, orthopedic surgeon Dr. Charles Cassidy
examined Byron and observed full range of motion of the right
elbow and wrist, with some tenderness and decreased grip
strength. Tr. 325. In light of the findings of positive ulnar
nerve neuropathy and Byron's continued complaints of
pain, Dr. Cassidy recommended a radial nerve release surgery.
See Tr. 325-26.
agency physician Dr. Louis Rosenthall reviewed Byron's
records in January 2017. He opined that Byron was limited to
frequent reaching with his right arm, should avoid
concentrated exposure to hazards such as machinery and
heights, could lift and carry 25 pounds occasionally and 20
pounds frequently, and could stand, walk or sit for 6 hours
in an 8hour workday. Tr. 57-61. Dr. Rosenthall noted that
Byron had three surgeries and complained of persistent pain
in his right elbow, but multiple clinical examinations within
the past year were “very reassuring, with only
abnormality being ligamentous laxity of lateral ulnar
collateral ligament.” Tr. 59.
Cassidy performed a fourth and final surgery on Byron's
right arm in April 2017. After the surgery, Dr. Cassidy
observed mild residual tenderness, but also improved range of
motion in the right arm. Tr. 417-19, 421-23. Byron had
diminished strength, but he maintained the ability to make a
fist. Id. He also reported to Dr. Cassidy that his
pain was well controlled, that he no longer needed
prescription pain medication, and that he was taking Tylenol
as needed. Tr. 423.
September 2017, one-time examining orthopedist Dr. Robert
Pennell examined Byron. Tr. 454-59. Byron complained of
continued pain, weakness, numbness, and tingling when he saw
Dr. Pennell. Id. He reported that his pain felt
better with prescription pain medication, Tramadol and
Gabapentin. Id. On examination, he was able to raise
both arms straight overhead, exhibited a range of motion
between 5 and 145 degrees in his right elbow and between 0
and 150 degrees in his left elbow, had reduced grip strength
in his right hand, and had good and equal abduction strength
of the fingers of both hands, with mild weakness of adduction
of the fingers on the right side. Tr. 457. Dr. Pennell ...