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Regalado v. Colvin

United States District Court, D. New Hampshire

September 13, 2016

Nelson Andres Regalado
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 165

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge.

         Pursuant to 42 U.S.C. § 405(g), Nelson Regalado moves to reverse the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits (“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 is remanded to the Acting Commissioner for further proceedings consistent with this Memorandum and 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). However, I “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) (citing Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987) (per curiam). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, I 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 (doc. no. 16) is part of the court's record and will be summarized here, rather than repeated in full.

         Regalado was involved in motor vehicle accidents in 2002, 2006, and 2010 that resulted in L5-S1 spondylolisthesis (2002), and “compression fractures at ¶ 7, T8 and T10 with exaggerated kyphosis and disc bulging [at] ¶ 3-T4 and T4-T5 without cord compression” (2006), (doc. no. 16 at 6). For approximately 14 years, Regalado worked two jobs, as a boot stitcher and as a machine operator. He stopped working as a boot stitcher in 2010. In August 2012, while performing his job as a machine operator, he was injured. He last worked in November 2012, and he filed his application for DIB that same month.

         Regalado has been diagnosed with a variety of impairments to his back and right shoulder. His treatment for those conditions has included medication, injections, physical therapy, home exercise, a corset, and shoulder surgery, which was performed in October 2013.

         In December 2012, Ms. Susan Maydwell, PAC, saw Regalado for an initial orthopedic consultation, and she also completed a New Hampshire Workers' Compensation Medical Form for Regalado. He was applying for compensation for the workplace injury he suffered in August 2012. Based upon diagnoses of cervicalgia and right rotator cuff tendonitis, Ms. Maydwell indicated that Regalado had no work capacity, but had not reached maximum medical improvement. When asked whether Regalado's injury had caused a permanent impairment, she checked the box for “undetermined.”

         In February 2013, a state-agency medical consultant referred Regalado to an occupational therapist, James Samson, for a Functional Capacity Evaluation (“FCE”). Based upon a battery of tests, Sampson indicated that Regalado had the demonstrated ability to lift and carry 10 pounds occasionally, push 15 pounds occasionally, and pull 20 pounds occasionally. Under the applicable regulations, those exertional limitations translate into a capacity for sedentary work.[1] Samson further opined that Regalado had a demonstrated ability for frequent sitting and for occasional static standing, walking, stair climbing, balancing, bending/stooping, crouching/squatting, crawling, twisting/spinal rotation, low-level work, fine finger manipulation, light and firm grasping, pinching, and forward and overhead reaching.

         In addition to evaluating Regalado's functional capacity, Samson also administered three tests to evaluate the reliability of Regalado's statements about his symptoms. After reporting the results of those tests, [2] Samson had this to say:

Overall test findings, in combination with clinical observations, suggest considerable inconsistency to the reliability and accuracy of the client's reports of pain and disability. In describing such findings, this evaluator is by no means implying intent. Rather, it is simply stated that the client can do more at times than [he] currently state[s] or perceive[s]. While [his] subjective reports should not be disregarded, they should be considered within the context of such RPDR findings.

Administrative Transcript (hereinafter “Tr.”) at 336 (doc. no. 5).

         In March 2013, state-agency medical consultant Dr. Jonathan Jaffe, who did not examine Regalado, assessed Regalado's residual functional capacity (“RFC”)[3] in reliance upon a review of his medical records. Dr. Jaffe's RFC assessment is reported on a Disability Determination Explanation (“DDE”) form which bears both his signature, as a medical consultant, and the signature of Joanne Degnan, in her capacity as a “Disability Adjudicator/Examiner, ” Tr. at 121.

         According to Dr. Jaffe, Regalado could lift and/or carry 20 pounds occasionally and 10 pounds frequently, and had the same capacities for pushing and/or pulling. Under the applicable regulations, those exertional limitations translate into a capacity for light work.[4] Dr. Jaffe further opined that Regalado could stand and/or walk with normal breaks for about six hours in an eight-hour work day, and could also sit for about six hours in an eight-hour workday. He also found that Regalado had no postural, visual, or communicative limitations and had a single manipulative limitation: a capacity to engage in only “occasional overhead reaching [with his] right upper extremity.” Tr. at 118-19.

         In addition to rendering an opinion on Regalado's RFC, Dr. Jaffe had this to say about Samson's FCE report:

F CE was obtained 3/13. Claimant reported pain - was unable to interact in English. There was no use of walking aids. Musculoskeletal exam was intact. There was pain reported with testing which did appear to be with less than full effort, with four of five Waddell's signs present. Examiner indicated overall test findings in combination with clinical observation suggested considerable inconsistency to the reliability and accuracy of the claimant's reports of pain and disability - totality of F CE report was consistent with light work function.[5]

Tr. at 119. While Dr. Jaffe correctly characterized Samson's FCE report as calling into question the validity of Regalado's reports of pain and disability, another portion of the DDE form titled “Assessment of Policy Issues, ” that may or may not have been drafted by Dr. Jaffe, [6] includes this statement: “Claimant's performance on FCE was not consistent and resulted in a low degree of reliability of findings, ” Tr. at 117. That is a mischaracterization of what Samson said in his FCE report; he questioned the reliability of Regalado's reports of pain and disability, not the reliability of the findings he made concerning Regalado's functional capacity.

         In late March 2013, after the Social Security Administration (“SSA”) initially denied his application for benefits, Regalado saw Dr. Kathleen Smith for pain management and “to get help appealing a [social security] disability denial, ” Tr. at 394. Dr. Smith provided the following assessment:

LOW BACK PAIN. Severe with radicular signs in L5 distribution. Need to check recent [X-Ray] to make sure no exacerbation of previous lumbar compression fractures. Needs to be re-evaluated as to whether [he is] a surgical candidate. Disabled from [activities of daily living] now, and certainly currently unable to work. Will get outside imaging studies.

Tr. at 396. Under the heading “Patient Instructions, ” Dr. Smith wrote: “I will look at records and see if a surgery consult is indicated and whether I can certify you as disabled in a letter. This may take 2-3 weeks.” Tr. at 396. It does not appear that Regalado has ever had back surgery, and despite the fact that he saw Dr. Smith in both April and May of 2013, the record does not appear to include either a letter from Smith certifying Regalado as disabled or a formal RFC assessment by Smith.

         After Regalado's claim for DIB was denied by the SSA, he received a hearing before an administrative law judge (“ALJ”). At the hearing, the ALJ heard testimony from Regalado, but did not take testimony from a vocational expert (“VE”). After the hearing, the ALJ issued a decision that includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: degenerative disc disease and right shoulder tendonitis (20 CFR 404.1520(c)).
. . . .
4. 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 404.1520(d), 404.1525 and 404.1526).
. . . .
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except for limiting ...

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