United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
has filed this action challenging certain portions of the
final decision of the Commissioner of Social Security
establishing plaintiffs entitlement to a closed period of
disability for purposes of plaintiffs claims for disability
insurance benefits and supplemental security income benefits
under the Social Security Act, as amended, 42 U.S.C.
§§ 4l6(i) and 423, and 42 U.S.C. § 1381 et
seq.. respectively. Jurisdiction of this court is
pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. §
court's review is limited to a determination as to
whether there is substantial evidence to support the
Commissioner's conclusion that plaintiff was under a
disability from March 1, 2012 through September 25, 2014, but
not thereafter. If such substantial evidence exists, the
final decision of the Commissioner must be affirmed. Hays
v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990);
Laws v. Celebrezze. 368 F.2d 640, 642 (4th Cir.
1966). Stated briefly, substantial evidence has been defined
as such relevant evidence, considering the record as a whole,
as might be found adequate to support a conclusion by a
reasonable mind. Richardson v. Perales, 402 U.S.
389, 401 (1971). "It consists of more than a mere
scintilla of evidence but may be less than a
preponderance." Hancock v. Astrue. 667 F.3d
470, 472 (4th Cir. 2012) (internal quotation marks and
citation omitted). Thus, "the threshold for such
evidentiary sufficiency is not high." Biestek v.
Berrvhill. 139 S.Ct. 1148, 1154(2019).
plaintiff, Angel Luis Marchese, was born on August 22, 1971.
He did not graduate from high school but eventually earned a
GED (Tr. 270). Mr. Marchese has been employed as a laborer
and forklift operator. (Tr. 257). He last worked on a regular
and sustained basis in 2011. (Tr. 48). On December 5, 2013,
Mr. Marchese filed applications for disability insurance
benefits and supplemental security income benefits. In filing
his current claims, Mr. Marchese alleged that he became
disabled for all forms of substantial gainful employment on
March 1, 2011, due to lower back pain and arthritis in both
hands. (Tr. 216, 269). At the time of an administrative
hearing on March 8, 2017, plaintiff amended his applications
so as to reflect an alleged disability onset date of March 1,
2012. (Tr. 58). Mr. Marchese maintains that he has remained
disabled to the present time. With respect to his application
for disability insurance benefits, the record reveals that
Mr. Marchese met the insured status requirements of the Act
at all relevant times covered by the final decision of the
Commissioner. See generally 42 U.S.C. §§
4l6(i) and 423(a).
Marchese's applications were denied upon initial
consideration and reconsideration. He then requested and
received a de novo hearing and review before an
Administrative Law Judge. In an opinion dated May 3, 2017,
the Law Judge ruled that Mr. Marchese was disabled for all
forms of substantial gainful employment from March 1, 2012
through September 25, 2014, due primarily to right upper
extremity impairments that precluded plaintiff from having
effective use of his right, dominant hand for handling,
fingering, or feeling. However, based on the treatment
plaintiff received during that period, including right thumb
and wrist surgeries, the Law Judge determined that plaintiff
experienced medical improvement as of September 26, 2014,
resulting in an increase in his residual functional capacity.
The selected date of medical improvement coincided with a
post-operative evaluation, at which Mr. Marchese reported to
be "doing well" and was found to have "good
motion of the digits" with only "minimal
discomfort." (Tr. 26, 645).
opinion, the Law Judge found that Mr. Marchese continues to
suffer from the same severe impairments that were present
from March 1, 2012 through September 25, 2014, namely, right
hand and wrist osteoarthritis with corrective surgeries,
obesity, and lumbago. (Tr. 18, 24). The Law Judge also found
that plaintiff "subsequently developed the following
additional 'severe' impairments: right trigger finger
with corrective surgery, bilateral epicondylitis, and history
of left shoulder impingement." (Tr. 24). However, the
Law Judge determined that, despite such impairments, Mr.
Marchese retained the capacity to perform a broader range of
light work activity as of September 26, 2014. The Law Judge
assessed plaintiffs residual capacity for the period
beginning on that date as follows:
After careful consideration of the entire record, the
undersigned finds that, beginning on September 26, 2014, the
claimant has had the residual functional capacity to perform
light work as defined in 20 C.F.R. [§§] 404.1567(b)
and 416.967(b) except he can never be exposed to hazards like
hazardous machinery and unprotected heights; occasionally
perform handling, fingering, and feeling with the right hand;
and have occasional exposure to temperature extremes,
wetness, humidity, and vibrations.
(Tr. 26). Given such a residual functional capacity, and
after considering testimony from a vocational expert, the Law
Judge determined that Mr. Marchese remains unable to perform
any of his past relevant work. (Tr. 33). However, the Law
Judge found that since September 26, 2014, Mr. Marchese has
possessed the capacity to perform other light work roles that
exist in significant numbers in the national economy, such as
the jobs of usher and counter clerk. (Tr. 33-34).
Accordingly, the Law Judge concluded that plaintiffs
disability ended on September 26, 2014, and that he has not
become disabled again since that date. See generally
20 C.F.R. §§ 404.1594(f)(8) and 4l6.994(b)(5)(vii).
Thus, the Law Judge ruled that Mr. Marchese was entitled to a
closed period of disability from March 1, 2012 through
September 25, 2014. (Tr. 34). The Law Judge's opinion was
adopted as the final decision of the Commissioner by the
Social Security Administration's Appeals Council. Having
exhausted all available administrative remedies, Mr. Marchese
has now appealed to this court.
plaintiff may be disabled for certain forms of employment,
the crucial factual determination is whether plaintiff is
disabled for all forms of substantial gainful employment.
See 42 U.S.C. §§ 423(d)(2) and l382c(a).
There are four elements of proof which must be considered in
making such an analysis. These elements are summarized as
follows: (1) objective medical facts and clinical findings;
(2) the opinions and conclusions of treating physicians; (3)
subjective evidence of physical manifestations of
impairments, as described through a claimant's testimony;
and (4) the claimant's education, vocational history,
residual skills, and age. Vitek v. Finch, 438 F.2d
1157, 1159-60 (4th Cir. 1971); Underwood v.
Ribicoff. 298 F.2d 850, 851 (4th Cir. 1962).
review of the record in this case, the court is constrained
to conclude that the Commissioner's final decision is
supported by substantial evidence. Although Mr. Marchese has
a history of musculoskeletal dysfunction, substantial
evidence supports the Law Judge's determination that
substantial medical improvement occurred as of September 26,
2014, and that Mr. Marchese has been able to perform certain
light work roles since that date.
record reveals that between March 1, 2012 and October 31,
2013, Mr. Marchese underwent four surgical procedures on his
dominant right hand and wrist. On March 22, 2012, plaintiff
underwent a right thumb carpometacarpal (CMC) joint
arthrodesis at Carilion Clinic's ambulatory surgery
center. (Tr. 334-36). Plaintiffs orthopaedic surgeon, Dr. Cay
Mierisch, cleared him to return to work in August of 2012.
(Tr. 519). Although plaintiff initially progressed well, he
returned to Dr. Mierisch in April and May of 2013 with
complaints of persistent pain that prevented him from working
with his right hand. (Tr. 365, 529). On May 9, 2013, Dr.
Mierisch removed surgical hardware and performed tendon
tenolysis on two of plaintiffs right thumb tendons. (Tr. 368,
370, 402, 533, 1004). Following the procedure, Mr. Marchese
continued to complain of persistent pain that was preventing
him from working with his right hand. (Tr. 443-44). On
October 28, 2013, Dr. Mierisch performed a right wrist
arthroscopy with debridement of ligament tears and synovitis,
including the radiocarpal and midcarpal joints. (Tr. 404).
Over the next several months, plaintiff continued to complain
of thumb and wrist pain. (Tr. 458-59. 462-65, 471).
Consequently, on May 15, 2014, Dr. Mierisch performed a right
thumb CMC suspension arthroplasty. (Tr. 556).
notes reflect steady improvement in plaintiffs right hand
symptoms following the May 15, 2014 procedure. In June of
2014, Mr. Marchese reported that he was doing well and that
his pain was controlled with medications. (Tr. 578). On
physical examination, plaintiff had "good range of
motion of the digits" and "some discomfort. . .
secondary to pain and swelling," which was noted to be
"appropriate for this interval of healing." (Tr.
578-79). He was referred to occupational therapy for further
treatment. In July of 2014, plaintiff reported continued
improvement in his wrist pain, and was found to be
"doing well post operatively." (Tr. 581-82). On
September 26, 2014, Mr. Marchese was once again found to be
"doing well post operatively." (Tr. 645). The
examining clinician noted that plaintiffs pain was controlled
with medications, and that he had "good motion of the
digits with minimal discomfort" and "good
opposition." (Tr. 645). The examination report also
indicates that Mr. Marchese "state[d] that he has been
working as a painter," but plaintiff denied doing so at
the administrative hearing. (Tr. 645). Ultimately, plaintiff
was advised to continue taking Mobic, a nonsteroidal
anti-inflammatory drug, and to continue with range of motion
and strengthening exercises. (Tr. 645).
November 18, 2014, Mr. Marchese presented to Dr. Ayesha Nazli
at New Horizons Healthcare with complaints of pain in his
left upper arm. Plaintiff reported that he had been
"helping [his] uncle . . . move" and had
"probably . . . sprained his arm." (Tr. 675). An
examination of plaintiff s left arm and shoulder revealed no
swelling or redness, and he was found to have full range of
motion without pain. (Tr. 675). Dr. Nazli diagnosed plaintiff
with a sprain and continued his existing medications.
November 25, 2014, Mr. Marchese returned to Dr. Mierisch for
a follow-up appointment. Plaintiff reported that that he
continued to experience pain in bis right thumb, and that he
could not do any "heavy gripping" or "resume
his work as a demolitionist." (Tr. 878). On physical
examination, Mr. Marchese was found to have "good motion
of the digits with minimal discomfort," "good
opposition," and "appropriately" continued
weakness. (Tr. 878). An x-ray of plaintiff s right thumb
showed that the arthroplasty was intact and revealed only
mild arthropathy (joint disease). (Tr. 878, 954). Dr.
Mierisch noted that any persistent pain and weakness may ...