United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge.
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.
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). 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)).
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)).
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.
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.
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.
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.”
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. 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.
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,  Samson had this
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).
March 2013, state-agency medical consultant Dr. Jonathan
Jaffe, who did not examine Regalado, assessed Regalado's
residual functional capacity
(“RFC”) 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.
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. 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
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.
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,  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
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
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
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.
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
. . . .
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 ...