United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Donna Willey moves to reverse the Acting Commissioner's decision to deny her application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter should be remanded to the Acting Commissioner for further proceedings consistent with this report and recommendation.
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). However, the court "must uphold a denial of social security disability 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) (per curiam) (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) (per curiam) (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) (per curiam). 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 (doc. no. 15). That statement is part of the court's record and will be summarized here, rather than repeated in full.
Willey left her job as a bar manager in January of 2012, and she applied for DIB about a week later. In addition to working as a bar manager, Willey has also worked as a telemarketer.
In September of 2012, Dr. Gurcharan Singh, a state agency consultant who did not examine Willey, performed an assessment of her residual functional capacity ("RFC"),  based upon a review of her medical records. His Physical RFC Assessment form lists diagnoses of degenerative disc disease of the cervical spine, fibromyalgia, diabetes mellitus, hypothyroidism, and obesity. In his assessment, Dr. Singh opined that Willey could lift and/or carry 20 pounds occasionally and 10 pounds frequently, could stand and/or walk, and could sit, both with normal breaks, for about six hours in an eight-hour workday. In addition, Dr. Singh opined that Willey could: (1) frequently balance, stoop, kneel, and crouch; (2) occasionally climb ramps/stairs and crawl; and (3) never climb ladders/ropes/scaffolds. Dr. Singh also found that Willey was limited to frequent overhead reaching, but had an unlimited capacity for handling, fingering, and feeling.
In October of 2013, Dr. Fereshteh Soumekh, a neurologist who had seen Willey on a bimonthly basis for more than seven years, completed a Musculoskeletal RFC Questionnaire on Willey. Dr. Soumekh began by noting diagnoses of cervical and lumbosacral spondylosis. She then opined that Willey could: (1) sit for 15 minutes at one time, and about four hours in an eight-hour workday (with normal breaks); and (2) stand for five to ten minutes at a time, and about two hours in an eight-hour workday. She further opined that Willey needed to: (1) walk around for two minutes every 15 minutes; (2) shift positions at will from sitting, standing, or walking; (3) lie down every two hours; and (4) elevate her legs three or four times every eight hours. In addition, Dr. Soumekh opined that Willey could: (1) occasionally lift less than ten pounds but never lift more than that; (2) occasionally bend and twist at the waist; (3) use her right hand and arm for grasping, fine manipulation, and reaching about for about 20 percent of an eight-hour workday; and (4) use her left hand and arm to perform those activities for about 50 percent of a workday. Finally, Dr. Soumekh opined that Willey would be absent from work about twice a month as result of her impairments or treatment for them.
After the Social Security Administration denied Willey's claim for DIB, she received a hearing before an Administrative Law Judge ("ALJ"). At the hearing, the ALJ posed two hypothetical questions to a vocational expert ("VE"). This is the ALJ's first hypothetical question:
Q... [A]ssume that [Willey] can lift 20 pounds occasionally, 10 pounds frequently, stand or walk for six [hours in an eight-hour workday], sit for six [hours], [has] unlimited use of her hands and feet to operate controls and push and pull. Should never climb ladders, can occasionally climb stairs and crawl, the remaining postural[ ] [capacities] are at frequent. She can frequently reach overhead bilaterally, otherwise unlimited reaching, handling, fingering, and feeling, and should avoid concentrated exposure to extreme ...