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Lonek v. Berryhill

United States District Court, D. New Hampshire

June 12, 2017

Mariel E. Lonek
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration Opinion No. 2016 DNH 212

          Christine Woodman Casa, Esq. Robert J. Rabuck, Esq. T. David Plourde, Esq.

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         Pursuant to 42 U.S.C. § 405(g), Mariel Lonek moves to reverse the Acting Commissioner's decision to deny her application for Social Security disability insurance benefits 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, I affirm.

         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, the court “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). 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 (doc. no. 12) is part of the court's record and will be summarized here, rather than repeated in full.

         Lonek applied for disability insurance benefits (“DIB”) in January of 2013, claiming that she had been disabled since March 1, 1997, as result of juvenile myoclonic epilepsy, [1] hypothyroidism, [2] migraine disorder, lupus anticoagulant, [3] a 2009 back injury (slipped dics), and a learning disability (difficulty with verbal instructions). Lonek later amended the alleged onset date of her disability to April 1, 2001.

         In April 2013, Dr. Burton Nault, a state agency medical consultant, performed an assessment of Lonek's physical residual functional capacity (“RFC”).[4] His RFC assessment covered the period from March 2, 2007, through June 30, 2012, and the Disability Determination Explanation form that reported his RFC assessment lists three medically determinable impairments: coagulation disorder, epilepsy, and migraine. Dr. Nault found early morning myoclonic jerks that may progress into a that Lonek could: (1) lift and/or carry 10 pounds frequently and 20 pounds occasionally; (2) stand and/or walk (with normal breaks) for about six hours in an eight-hour workday; (3) sit (with normal breaks) for about six hours in an eight-hour workday; and (4) push and/or pull the same amount of weight she could lift and/or carry. He further opined that Lonek had no postural, manipulative, visual, communicative, or environmental limitations.

         On May 23, 2013, Lonek saw a rheumatologist, Dr. Daniel Kunz, with whom she had previously treated in 2008. She presented with headaches. Dr. Kunz reported Lonek's subjective complaints of arthralgias and chronic headaches, [5] but also indicated that, objectively, she was “in no acute distress.” Administrative Transcript (hereinafter “Tr.”) 1177. He gave the following diagnosis: “Positive ANA (antinuclear antibody).”[6] Id. One week after meeting with Lonek, Dr. Kunz wrote a letter, addressed “To Whom it May Concern, ” that states, in full: “Mariel Lonek is a patient of this office. Patient should not work more than 20 hours per week. Thank you.” Tr. 1026.

         On April 18, 2014, Lonek returned to Dr. Kunz for a follow-up on her positive ANA. She also complained of “worsening musculoskeletal pain.” Tr. 1172. Her physical examination revealed “[w]idespread muscle and joint tenderness without joint swelling or inflammatory changes.” Id. Dr. Kunz concluded that Lonek “does have fibromyalgia based on history, physical, and lack of features suggestive of systemic rheumatic disease.”[7] Id.

         In addition to examining Lonek, Dr. Kunz completed an RFC form. In it, he opined that Lonek: (1) could only stand for short periods of time; (2) could not sit upright for six to eight hours a day; (3) needed to lie down during the day due to pain; and (4) could walk one full city block non-stop. He further opined that Lonek could rarely reach above her shoulders, down to waist level, or down toward the floor, but could frequently handle objects carefully and handle objects with her fingers. He also indicated that Lonek could lift and carry five to ten pounds, but was limited in her ability to bend, squat, and kneel, due to pain. Finally, Dr. Kunz indicated that Lonek was currently working four hours a day, three days a week, and opined that she could work up to 20 hours a week, but “could not do anything more.” Tr. 1192.

         After conducting a hearing, an Administrative Law Judge (“ALJ”) issued a decision that includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: fibromyalgia; low back pain; seizures; and headaches (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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, and occasionally stoop, kneel, crouch, and crawl. The claimant can frequently reach, bilaterally. The claimant must avoid all exposure to hazardous machinery, operation and control of moving machinery, and unprotected heights.
. . . .
10. 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 can perform (20 CFR 404.1569 and 404.1569(a)).

Tr. 243, 244, 245, 252. Based upon his assessment of Lonek's RFC, and a hypothetical question posed to a vocational expert (“VE”) that incorporated the RFC he described in his decision, the ALJ determined that Lonek was able to perform ...


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