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Dubord v. Colvin

United States District Court, D. New Hampshire

November 1, 2016

Denise Germaine Dubord
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 201

          Penelope E. Gronbeck, Esq.

          Terry L. Ollila, Esq.


          Landya McCafferty United States District Judge

         Pursuant to 42 U.S.C. § 405(g), Denise Dubord moves to reverse the Acting Commissioner's decision to deny her applications for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 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 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 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, document no. 10, is part of the court's record and will be summarized here, rather than repeated in full.

         Dubord has worked as a cashier and as a program aide in a youth placement home. She last earned reported income from such work in September of 2012. She applied for DIB in December of 2013, and applied for SSI in February of 2014.

         Dubord has been diagnosed with a variety of physical and mental conditions, including pigmented villonodular synovitis (“PVNS”), [1] carpal tunnel syndrome, [2] fibromyalgia, [3] lumbar radiculopathy, [4] and depression. She underwent surgery for her PVNS in May of 2013.

         In June of 2014, Dubord's physical residual functional capacity (“RFC”)[5] was assessed by Dr. Lewis Rosenthall, a state-agency consultant who reviewed her medical records. With regard to exertional limitations, Dr. Rosenthall opined that Dubord could lift and/or carry 20 pounds occasionally and 10 pounds frequently, could push and/or pull the same amount with the same frequency, could stand and/or walk (with normal breaks) for a total of four hours, and could sit (with normal breaks) for about six hours in an eight-hour workday. He further opined that: (1) “[a] medically required hand-held assistive device is necessary for ambulation, ” Administrative Transcript (hereinafter “Tr.”) 55, 67; and (2) Dubord “must periodically alternate [between] sitting and standing to relieve pain and discomfort, ” Id. He explained those exertional limitations this way:

Claimant [status post] resection pigmented villoglandular synovitis (PVGS) L[ef]t ankle (Hecht 5/13) complicated by calf [deep vein thrombosis]; [work up] revealed Prothrombin Gene Mutation (Peterson 1/14); BMI is 39.5; at Ortho [follow up] (Peterson 1/14) gait remained antalgic with use of cane & brace [consistent with] self-stated [activities of daily living] ¶ 2/9/14. Overall, stand/walk time should be limited to 4 h[ou]rs, both cane & L[ef]t ankle brace should be available to claimant throughout the workday, & she should be allowed to change posture every two h[ou]rs for 5 min[utes] to assist venus return.[6]

Id. Beyond that, in a discussion of Dubord's activities of daily living, Dr. Rosenthall noted: “[C]an walk 3 feet with a cane and left ankle brace. At face-to-face [field office] intake (Dilullo 1/15/14) clamant ambulated with a cane.” Tr. 56, 68. Finally, Dr. Rosenthall identified no manipulative limitations, i.e., limitations in reaching, handling, fingering, or feeling.

         On December 15, 2014, a family practitioner who had treated Dubord, Dr. Peter Doane, wrote a letter, to whom it may concern, that states, in pertinent part:

[Dubord] has not been able to work since September 2012 due to left ankle pain and [was] subsequently diagnosed with Pigmented Villonodular Synovitis. For this she had surgery in 2013 and was complicated by being a more extensive surgery and injury to her peroneal nerve and postoperative deep venous thrombophlebitis. She has had ongoing severe pain in the left ankle even after surgery. Her surgeon has repeated an MRI and ongoing swelling and inflammation but not good explanation of her outcome with chronic pain and swelling. He offered her no further treatment options. She has severe pain and worse with weight bearing. She has to walk with a cane. In addition she has since then been diagnosed with a L5S1 Herniated Lumbar Disc, not needing surgery but ongoing left leg sciatic pain. Also Fibromyalgia, Severe Depression, Anxiety, Carpal Tunnel Syndrome, and Vitamin D deficiency have now been diagnosed and partly treated. See my detailed exam but due to these multiple medical problems she cannot sit over 30 minutes, walk over 100 feet or stand in place but for short intervals. He[r] depression/anxiety limits her cognition as she has problems concentrating and focusing. She has to take frequent rest periods during the day to lay down at least 2 hours a day.
It is my opinion based on her history and exam [that] she is not currently able to work even a sedentary job with accommodations.

Tr. 490 (emphasis added).

         In February of 2015, Dr. Doane completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) on Dubord. On that form, he opined that Dubord: (1) could lift and/or carry less than ten pounds occasionally; (2) could not frequently lift and/or carry any amount; and (3) could sit for less than six hours in an eight-hour workday. In response to the question about Dubord's capacity for standing and/or walking, Doane checked the box for “less than 2 hours in an 8hour workday, ” but did not check the box for “medically required hand-held assistive device is necessary for ambulation.” Tr. 491. In support of his conclusions regarding Dubord's capacity for standing and/or walking, Dr. Doane provided the following narrative explanation:

Hard lifting walking with cane and carrying [illegible] weight throws her balance off and risk of falling
cannot stand more than 20-30 min[utes] at a time without a rest and needs to lay down 2-3 hours every afternoon due to pain
cannot sit more than 45 min[utes] due to pain and left leg goes numb [and] then when [she] gets up [she is] unable to walk
Repeti[t]ive use of arms [and] legs gets painful [and] weak

Tr. 492 (emphasis added). Dr. Doane also opined that Dubord was limited to only occasional reaching, handling, and fingering. He explained: “Reaching - arms get painful [and] weak with manipulation. Fingers [and] hands [are] limited due to severe pain from carpel tunnel.” Tr. 493.

         After the SSA denied Dubord's applications for benefits, she received a hearing before an Administrative Law Judge (“ALJ”). At the hearing, the following exchange took place between Dubord and her attorney:

Q You're walking with a cane today; is that normal?
A Yes.
Q When did you start with the cane?
A I actually started walking with the cane a little before I had surgery and then it was definitely after I had surgery and I haven't been able to walk without it after ...

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