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Hatch v. Colvin

United States District Court, D. New Hampshire

August 5, 2016

Laura Hatch
Carolyn Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 130


          Joseph Laplante United States District Judge

         Pursuant to 42 U.S.C. § 405(g), Laura Hatch moves to reverse the Acting Commissioner’s decision to deny her application for supplemental security income, or SSI, under Title XVI of the Social Security Act, 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 decisions on claims for disability insurance benefits); 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 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)).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement[1] is part of the court’s record and will be summarized here, rather than repeated in full.

         In June of 2011, Hatch went to the emergency room with symptoms of what was subsequently diagnosed as multiple sclerosis (“MS”).[2] She initially spent five days in Massachusetts General Hospital (“MGH”), and was discharged to a rehabilitation hospital, where she spent nearly a month. In between her two hospitalizations, Hatch saw Dr. Eric Klawiter at the MGH Multiple Sclerosis Clinic, and continued to treat with him until July of 2012. In September of 2011, shortly after she was discharged from the rehabilitation hospital, Hatch began seeing Dr. Joann Buonomano, a family practitioner, as her primary care provider. In March of 2013, Dr. Klawiter referred Hatch to Dr. Ann Cabot, another specialist in MS. Dr. Cabot, in turn, saw Hatch in March of 2013 and again in January of 2014. In addition to MS, Hatch has been diagnosed with obesity, depression, anxiety, and a learning disability.

         The record includes five opinions concerning Hatch’s residual functional capacity (“RFC”).[3] Three of those opinions are relevant to the issues discussed in this order: (1) a Physician/Clinician Statement of Capabilities completed in August of 2012 by Dr. Buonomano; (2) a physical RFC assessment prepared in October of 2012 by a state-agency consultant, Dr. Hugh Fairley, based upon a review of the record;[4] and (3) a Physical Impairment Medical Source Statement completed in January of 2014 by Dr. Buonomano. In January of 2014, Dr. Klawiter was asked to complete a Multiple Sclerosis Medical Source Statement on Hatch, but he declined to do so, explaining that he had not seen Hatch for 18 months. While Hatch has submitted treatment records from Dr. Cabot, the record does not include an RFC assessment from her either.

         In her evaluation of Hatch’s physical capacities, completed in August of 2012, Dr. Buonomano indicated a diagnosis of multiple sclerosis. She opined that with normal breaks, Hatch could sit for a maximum of two hours a day, stand for a maximum of two hours a day, and walk for a maximum of two hours a day. In addition, Dr. Buonomano ascribed a variety of exertional, postural, manipulative, and environmental limitations. She also opined that while Hatch was capable of participating in work-related activities, she could do so for less than ten hours per week. Finally, Dr. Buonomano stated that the restrictions she placed on Hatch’s ability to work should remain in place for 12 months.

         Approximately two months after Dr. Buonomano completed her evaluation, Dr. Fairley conducted his RFC assessment. Like Dr. Buonomano, Dr. Fairley identified exertional, postural, and environmental limitations, but he identified no manipulative limitations. With respect to exertional limitations, Dr. Fairley opined that Hatch was able to sit (with normal breaks) for about six hours in an eight-hour workday and was able to stand and/or walk (with normal breaks) for two hours in an eight-hour workday. In support of his postural limitations, Dr. Fairley noted Hatch’s diagnosis of MS and also said this: “Easy fatigueability is her main problem.” Administrative Transcript (hereinafter “Tr.”) 97.

         In January of 2014, Dr. Buonomano provided a second medical opinion. In her Physical Impairment Medical Source Statement, Dr. Buonomano indicated that she had seen Hatch every three to six months for the previous two years, starting on January 6, 2012.[5] She indicated diagnoses of MS, depression, and a learning disability. Under the heading “Prognosis, ” she wrote: “Progressive decline.” Tr. 860. Dr. Buonomano described Hatch’s symptoms this way: “Pain, numbness, weakness on [left] side, both upper [and] lower extremities, [e]xtreme fatigue, headaches.” Id. Dr. Buonomano further stated: “Symptoms are random, can be very severe or moderate. More bad days than good days.” Id. With regard to Hatch’s functional capacity, Dr. Buonomano opined that: (1) Hatch’s “experience of pain or other symptoms [was constantly] severe enough to interfere with attention and concentration needed to perform even simple work tasks, ” Tr. 861; (2) Hatch was “[i]ncapable of even ‘low stress’ jobs, ” id.; (3) she could sit (with normal breaks) for less than two hours in an eight-hour workday; (4) she could stand/walk (with normal breaks) for less than two hours in an eight-hour workday; (5) she would need three to five unscheduled breaks each day; and (6) she would be absent from work more than four days a month as a result of her impairments or treatment for them. When asked whether Hatch would have good days and bad days, Dr. Buonomano responded:

MS is a relapsing disease that is unpredictable and results in periods of incapacity. In addition, [Hatch] has total left-sided weakness, pain, and numbness from the disease.

Tr. 863. Finally, in response to a question about other limitations that would affect Hatch’s ability to work on a sustained basis at a regular job, Dr. Buonomano wrote: “She cannot work in any extreme environment. She is susceptible to vision changes, randomly. She is not capable of regular employment.” Tr. 864.

         After the Social Security Administration denied Hatch’s claim, she received a hearing before an Administrative Law Judge (“ALJ”). At the hearing, the ALJ heard testimony from a vocational expert (“VE”). In response to hypothetical questions based largely upon the RFC assessed by Dr. Fairley, the VE testified that a person with those limitations could perform the jobs of surveillance system monitor, addressing clerk, and document preparer. Rather than asking a hypothetical question incorporating the more restrictive limitations from Dr. Buonomano’s RFC assessment, the ALJ observed: “I think further limitations would be tied to the medical source statement [i.e., Dr. Buonomano’s 2012 opinion] and I think that’s an obvious result there, so I won’t ask that.” Tr. 90.

         The ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

2. The claimant has the following severe impairments: multiple sclerosis; headaches; obesity; depression; and anxiety (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a), except she is limited to lifting/carrying up 5 pounds frequently and 10 pounds occasionally with her non-dominant left hand; and pushing/pulling on an occasional basis with her left side. She is unable to climb ladders, rope[s] or scaffolds, and she is limited to occasional climbing of ramps and stairs. She is able to frequently stoop, and occasional[ly] crouch, crawl and kneel. She is able to frequently handle and feel with her left hand, and [perform] no repetitive use of her left hand for manipulation. She is limited to occasional use of foot controls with her left foot. She must avoid unprotected heights and prolonged exposure to dangerous, moving machinery. She is limited to simple, routine and repetitive work, in an environment without fast-paced production requirements. She is able to handle routine workplace changes.
9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant ...

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