United States District Court, D. New Hampshire
Laplante United States District Judge
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.
Standard of Review
applicable standard of review in this case provides, in
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
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)).
parties have submitted a Joint Statement of Material Facts.
That statement is part of the court’s record and
will be summarized here, rather than repeated in full.
of 2011, Hatch went to the emergency room with symptoms of
what was subsequently diagnosed as multiple sclerosis
(“MS”). 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.
record includes five opinions concerning Hatch’s
residual functional capacity
(“RFC”). 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; 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.
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.
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.
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. 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.
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.
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.
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 ...