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Crandlemere v. Berryhill

United States District Court, D. New Hampshire

September 15, 2017

Steven R. Crandlemere
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration Opinion No. 2017 DNH 192

          ORDER

          JOSEPH LAPLANTE UNITED STATES DISTRICT JUDGE

         Pursuant to 42 U.S.C. § 405(g), Steven Crandlemere moves to reverse the Acting Commissioner's decision to deny his 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, 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). 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, document no. 16, is part of the court's record and will be summarized here, rather than repeated in full.

         In 2004, diagnostic imaging of Crandlemere's lumbar spine revealed degenerative disk disease at ¶ 5-S1 and mild degenerative changes at ¶ 4-L5. On June 3, 2009, while at work, Crandlemere aggravated his back condition when he fell off a standup mower after hitting a bump. On November 19, 2009, he underwent back surgery. His post-surgery treatment has included physical therapy, several different pain medications, [1] and various injections.[2] On four occasions, starting on August 30, 2010, one of Crandlemere's treating physicians, Dr. David Tung, described Crandlemere's surgery this way: “failed back surgery [status post] laminotomy/discectomy with left L5-S1 radiculopathy.”[3] Administrative Transcript (hereinafter “Tr.”) 451, 460, 471, 486.

         The record in this case includes more than a dozen opinions on Crandlemere's physical capacity for work. Those opinions are reported in: (1) a Progress Note by Dr. Jie Cheng, a treating physician; (2) New Hampshire Workers' Compensation Medical Forms (“Comp Forms”) completed by four different treating physicians, Dr. Cheng (one form), Dr. Davis Clark (two forms), Dr. Clifford Levy (eight forms), and Dr. Tung (four forms); (3) a Physical Residual Functional Capacity (“RFC”)[4] Assessment performed by Dr. Burton Nault, a non-examining state-agency physician; (4) a Medical Source Statement of Ability to Do Work-Related Activities (Physical) completed by Dr. Levy; (5) a Medical Source Statement of Ability to Do Work-Related Activities (Physical) completed by Dr. Ihab Ziada, a treating physician; and (6) a physical RFC assessment performed by Dr. Marcia Lipsky, a non-examining state-agency physician. The opinions that are relevant to the court's analysis of the ALJ's decision are described below.

         Dr. Nault's RFC assessment is dated January 26, 2010, approximately two months after Crandlemere's back surgery. In it, he opined that by June 3, 2010, i.e., 12 months after the alleged onset date (“AOD”) of Crandlemere's claimed disability, he would be able to lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk (with normal breaks) for about six hours in an eight-hour work day, sit (with normal breaks) for about six hours in an eight-hour workday, and push/pull with no limitations other than those for lifting and carrying.[5] Dr. Nault further opined that Crandlemere would be able to occasionally perform the postural activities of climbing (ramps, stairs, ladders, ropes, and scaffolds), balancing, stooping, kneeling, crouching, and crawling.

         In the narrative portion of his RFC assessment, Dr. Nault described Crandlemere's back injuries and the treatment he had received before his surgery. He then described the effects of Crandlemere's surgery:

Follow up on 12/21/09 by Dr. Levy supported no neurological deficits and a negative straight leg raising. He recommended physiotherapy, which the claimant states he is getting now, but is still having some residual back pain.
The claimant currently states he is getting improvement with physiotherapy and home exercise program on a slow basis, helped by stretching exercises and a treadmill.

Tr. 334. Dr. Nault concluded his RFC assessment with the following summary:

At this time the claimant has [medically determinable impairments] established as noted above [i.e., degenerative disc disease of the lumbar spine status post discectomy at ¶ 5-S1]. A listings level impairment is not supported; however, he is still considered totally disabled at this time, but it is reasonable to assume that within 12 months of his AOD he should return to a functional capacity as addressed in Section 1.

Tr. 334. Finally, while he described Crandlemere as “totally disabled” as of the date of his assessment, Dr. Nault did not identify the specific limitations that rendered him so.[6]

         On July 28, 2010, Dr. Levy completed a Comp Form. In it, he opined that on that date, despite the June 3, 2009, injury, Crandlemere: (1) had no limitation on his ability to sit, stand, or walk; (2) had several postural limitations; and (3) could return to work for a maximum of four to eight hours a day, three to five days a week, so long as he did not have to lift/carry more than ten pounds occasionally and five pounds frequently.

         Dr. Levy's Medical Source Statement of Ability to Do Work-Related Activities (Physical) is dated December 8, 2010. In it, he opined that Crandlemere could lift/carry 10 pounds occasionally and less than 10 pounds frequently, that his abilities to sit, stand, and walk were unaffected by his impairment, and that he could occasionally perform the postural activities of climbing, kneeling, crouching, crawling, and stooping. Finally, the form that Dr. Levy completed asked for his opinion on whether Crandlemere was “capable of gainful employment on a sustained basis, ” Tr. 441, and Dr. Levy responded: “Yes, 4-8 hours per day 3-5 hrs per day, ”[7] id.

         Dr. Ziada's Medical Source Statement of Ability to Do Work-Related Activities (Physical) is dated July 16, 2013. In it, he opined that Crandlemere could lift/carry 10 pounds occasionally and less than 10 pounds frequently, stand/walk (with normal breaks) for less than two hours in an eight-hour work day, and sit (with normal breaks) for less than six hours in an eight-hour workday. He also opined that Crandlemere needed to “periodically alternate sitting and standing to relieve pain or discomfort, ” Tr. 1219, and was limited in his ability to push/pull. He then indicated that his conclusions regarding exertional limitations were supported by the following findings: “lumbar spondylosis with radiculopathy [and] back pain with muscle spasm.”[8] Tr. 1219. Dr. Ziada further opined that Crandlemere could never perform the postural activities of climbing, balancing, stooping, kneeling, crouching, and crawling, and he supported his opinion by stating that “because of back pain [Crandlemere] is limited to moving [and] he requires meds, [and must be able to] change position frequently.” Id. In addition, Dr. Ziada identified several manipulative and environmental limitations. Finally, Dr. Ziada opined that Crandlemere: (1) was “limited to jobs where he . . . [would be] would be allowed to take unscheduled breaks to relieve pain or discomfort, ” Tr. 1221; (2) was not “capable of gainful employment on a sustained basis, ” id.; and (3) was likely, on account of his condition, “to be absent from work three or more times per month, ” id.

         Crandlemere first applied for DIB on July 29, 2009. His quest for DIB has followed what can only be described as a long and winding road. To begin, Crandlemere's claim was denied at the initial level, and then he received an unfavorable decision from an Administrative Law Judge (“ALJ”). Crandlemere appealed the ALJ's decision to this court, which remanded. See Crandlemere v. Astrue, No. 11-cv-529-SM, 2013 WL 160334 (D.N.H. Jan. 15, 2013). In his remand order, Judge McAuliffe identified, as reversible error, the ALJ's reliance on Dr. Nault's opinion when the prediction in that opinion, i.e., that Crandlemere would no longer be disabled as of June 3, 2010, “appear[ed] to have been incorrect.” Id. at *4. As evidence of the incorrectness of Dr. Nault's prediction, Judge McAuliffe pointed to the opinions contained in nine Comp Forms completed by Drs. Levy and Tung between February 1, 2010, and January 14, 2011. Judge McAuliffe described Dr. Levy's opinions this way:

By July of 2010, Dr. Levy concluded that claimant had recovered to the point that he was capable of lifting a maximum of 10 pounds occasionally and five pounds frequently, and could work a maximum of four to eight hours a day, three to five days a week. At best, then, Dr. Levy believed claimant was capable of performing the exertional requirements of sedentary work, on a less-than full-time basis. Dr. Levy repeated that opinion several times in the months that followed. But, he never concluded that claimant was capable of a return to full time work . . . .

Id. (emphasis in the original, citations to the record omitted).

         While Crandlemere's 2009 claim was working its way through the review process, he filed a second claim, which was consolidated with his first one, in a decision by the Appeals Council (“AC”) that vacated the ALJ's unfavorable decision on Crandlemere's second claim.

         Crandlemere received a hearing before an ALJ on his consolidated claim. At that hearing, a vocational expert (“VE”) testified that a person with the RFC described in Dr. Ziada's Medical Source Statement would not be able to perform any jobs. After the hearing, the ALJ issued an unfavorable decision. The AC reversed and remanded.

         On remand, Crandlemere received yet another ALJ hearing. At that hearing, the ALJ asked the VE to consider “someone of similar age, education, and vocational background who is limited to sedentary work with a sit/stand option at will, ” Tr. ...


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