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Loving v. Colvin

United States District Court, D. New Hampshire

April 21, 2016

Donna Loving
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 083

Penelope E. Gronbeck, Esq.

T. David Plourde, Esq.

ORDER

LANDYA McCAFFERTY UNITED STATES DISTRICT JUDGE

Pursuant to 42 U.S.C. § 405(g), Donna Loving 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, and her application for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner 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) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

As for the statutory requirement that the 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)).

II. Background

The parties have submitted a Joint Statement of Material Facts. That statement, document no. 12, is part of the court’s record and will be summarized here, rather than repeated in full.

Loving’s employment history includes work as a bus driver, mail room clerk, machinist, warehouse supervisor, and warehouse order selector.

In 2007, Loving was diagnosed with mild spondylosis[1] in her cervical spine and mild degenerative changes in her lumbar spine. She received conservative treatment for those conditions, upon her initial complaints about them, and appears not to have complained to health-care providers about either condition more than once. In 2012, Loving had surgery on both of her heels. She has also been diagnosed with uterine fibroids. In 2013, she had hernia-repair surgery.

On November 5, 2013, Loving saw physical therapist Megan Jensen who performed two hours of testing and prepared an 11-page document titled “Physical Therapy Initial Evaluation/Plan of Care.” Administrative Transcript (hereinafter “Tr.”) 500. Among other things, Jensen administered a “6 Minute Walk Test” to “assess [Loving’s] general walking ability and endurance level.” Tr. 508. Under the heading “Endurance Testing, ” Jensen explained:

Endurance testing is based on the client’s performance on the 6 minute walk test (6MWT) and [is] used to gain information about an individual’s ability to work an 8 hour work day. Generally, if the client’s VO2 level is calculated to be greater than 60%, the client will not be able to sustain this level of work activity for 8 hours/day. The person will however be able to perform at this intense level for brief periods, occasionally throughout the work day.

Tr. 509. Based upon Loving’s results on the 6 Minute Walk Test, Jensen determined that she had a VO2 level of 66%, [2] a maximum endurance level of 4.5 METS, [3] and an average endurance level of 1.5 METS.

In addition to reporting a variety of test results, Jensen’s evaluation form includes a section titled “Summary of Functional Abilities.” In that section, Jensen described seven different aspects of Loving’s lifting ability and described her capacities to perform ten different postural activities. Jensen also reported that Loving had a capacity to sustain 1.5 METS over the course of an eight-hour work day. Finally, the Summary of Functional Abilities includes a key that translates endurance levels into the strength ratings used by the United States Department of Labor and the Social Security Administration (“SSA”). According to that key: (1) sedentary work, which involves lifting 10 pounds occasionally and negligible amounts frequently, requires an endurance level of 1.5 to 2.1 METS; and (2) light work, which involves lifting 20 pounds occasionally and 10 pounds frequently, requires an endurance level of 2.2 to 3.5 METS. Based upon Loving’s average endurance level of 1.5 METS, Jensen characterized her as being limited to sedentary work, i.e., work that involves lifting 10 pounds occasionally and negligible amounts frequently.

About two weeks after Jensen evaluated Loving, she completed a Medical Source Statement of Ability to do Work-Related Activities (Physical) on Loving. In it, she opined that Loving could lift and carry 20 pounds occasionally and 10 pounds frequently, and that she could stand and/or walk for less than two hours in an eight-hour workday. At several points in her Medical Source Statement, Jensen included the following notation: “See full report for details.” Tr. 512. The court presumes that the “full report” to which Jensen referred is the evaluation form that she had completed two weeks before she completed her Medical Source Statement.[4]

After the SSA denied Loving’s claims for DIB and SSI, she was given a hearing before an Administrative Law Judge (“ALJ”). At that hearing, the ALJ described the following ...


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