United States District Court, D. New Hampshire
James T. Briand
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.
Opinion No. 2015 DNH 131
LANDYA McCAFFERTY, District Judge.
Pursuant to 42 U.S.C. § 405(g), James Briand moves to reverse the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings consistent with this order.
I. Standard of Review
The applicable standard of review in this case provides, in pertinent part:
The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive....
42 U.S.C. § 405(g) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court "must uphold a denial of social security... benefits unless the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting Commissioner's findings of fact be supported by substantial evidence, "[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts." Alexandrou v. Sullivan, 764 F.Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). In turn, "[s]ubstantial evidence is more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Currier v. Sec'y of HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). But, "[i]t is the responsibility of the [Acting Commissioner] to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the [Acting Commissioner], not the courts." Irlanda Ortiz v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (citations omitted). Moreover, the court "must uphold the [Acting Commissioner's] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence." Tsarelka v. Sec'y of HHS, 842 F.2d 529, 535 (1st Cir. 1988). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must "review[ ] the evidence in the record as a whole." Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
The parties have submitted a Joint Statement of Material Facts, document no. 13. That statement is part of the court's record and will be summarized here, rather than repeated in full.
Briand has received multiple diagnoses of his physical condition, including these: mild bilateral knee osteoarthritis, bilateral leg peripheral vascular insufficiency, obesity, and type II diabetes mellitus. One of the long term complications of diabetes mellitus is neuropathy. Stedman's Medical Dictionary 529 (28th ed. 2006).
In a Disability Determination Explanation ("DDE") completed in December of 2013,  non-examining state consultant Dr. Hugh Fairley determined that Briand had three severe impairments: chronic venous insufficiency, obesity, and peripheral neuropathy. The DDE also includes Dr. Fairley's assessment of Briand's physical residual functional capacity ("RFC"). According to Dr. Fairley, Briand had the RFC to: (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total of about six hours in an eight hour workday; (3) sit for a total of about six hours in an eight hour workday; and (4) push and/or pull without any limitation other than the limitation on lifting and carrying. Dr. Fairley also determined that Briand needed to "periodically alternate [between] sitting and standing to relieve pain and discomfort." Administrative Transcript (hereinafter "Tr.") 51, 63. He further specified: "Change stand to walk/sit 1/2 hrly for a few minutes." Id . With respect to postural limitations, Dr. Fairley found that Briand could: (1) occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and (2) never climb ropes, ladders, or scaffolds. Dr. Fairley reported no manipulative, visual, or communicative limitations, but with respect to environmental limitations, reported that Briand needed to avoid: (1) concentrated exposure to extreme temperatures and vibrations; and (2) all exposure to "[h]azards (machinery, heights, etc.), " Tr. 52, 64.
In February of 2014, Tricia Aiston, an Advanced Practice Registered Nurse, wrote a letter directed to whom it may concern in which she stated: "James Briand... has medical issues and ongoing chronic pain in [both] knees making it difficult to ambulate. Patient is unable to work due to instability to [both] knees." Tr. 296.
Before issuing his decision on Briand's claim for benefits, the ALJ conducted a hearing at which he heard testimony from a vocational expert ("VE"). In a question he posed to the VE, the ALJ described the following hypothetical worker:
And the hypothetical is to assume that we have a 49 year old with a twelfth grade education who can lift 20 pounds occasionally, 10 pounds frequently, stand or walk for six, sit for six, unlimited use of his hands and feet to operate controls and push and pull. Should never climb ladders, scaffoldings, or ropes. The remaining posturals are at the occasional level. Should avoid ...