United States District Court, D. New Hampshire
Steven R. Crandlemere
Nancy A. Berryhill, Acting Commissioner, Social Security Administration Opinion No. 2017 DNH 192
LAPLANTE UNITED STATES DISTRICT JUDGE
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.
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, 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)).
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. 16, is part of the court's
record and will be summarized here, rather than repeated 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,  and various injections. 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.” Administrative Transcript
(hereinafter “Tr.”) 451, 460, 471, 486.
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”) 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
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. 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.
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
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
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.
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
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, ” id.
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.” 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.
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
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.
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.
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. ...