United States District Court, D. New Hampshire
Penelope E. Gronbeck, Esq.
L. Ollila, Esq.
McCafferty United States District Judge
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.
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 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,
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, document no. 10, is part of the
court's record and will be summarized here, rather than
repeated in full.
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.
has been diagnosed with a variety of physical and mental
conditions, including pigmented villonodular synovitis
(“PVNS”),  carpal tunnel syndrome,  fibromyalgia,
lumbar radiculopathy,  and depression. She underwent surgery for
her PVNS in May of 2013.
of 2014, Dubord's physical residual functional capacity
(“RFC”) 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.
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.
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
Tr. 490 (emphasis added).
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
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
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
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.
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?
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 ...