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McCormick v. Berryhill

United States District Court, D. New Hampshire

September 22, 2017

Jonathan Theodore McCormick
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration Opinion No. 2017 DNH 208

          Janine Gawryl, Esq.

          Robert J. Rabuck, Esq.

          ORDER

          Landya McCafferty United States District Judge.

         Pursuant to 42 U.S.C. § 405(g), Jonathan McCormick moves to reverse the Acting Commissioner's decision to deny his 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. 11, is part of the court's record and is summarized here, rather than repeated in full.

         McCormick worked as a self-employed carpenter until June of 2012. His medical records include diagnoses of physical conditions affecting his left elbow (bursitis), his left hip (osteoarthritis), his shoulders (high-grade acromioclavicular shoulder separations/instability), his right wrist (joint pain), and his lower back (thoracic or lumbosacral neuritis or radiculitis, unspecified;[1] spinal stenosis without neurogenic claudication;[2] and lumbosacral spondylosis without myelopathy[3]). He has also been diagnosed with peripheral neuropathy[4] and a mood disorder.

         McCormick applied for both DIB and SSI in June of 2013. Because he submitted insufficient evidence, the initial review of his applications included no assessment of either his physical or mental residual functional capacity (“RFC”).[5]

         In January of 2014, McCormick saw Dr. Shawn Harrington for a re-evaluation of his back pain. Several weeks later, Dr. Harrington completed an RFC Questionnaire on McCormick. In it, Dr. Harrington identified diagnoses of lower back pain, spinal stenosis, shoulder pain, and hip osteoarthritis. Dr. Harrington stated that McCormick's impairments resulted in pain, numbness, and back stiffness and that those symptoms were often “severe enough to interfere with the attention [and] concentration required to perform simple work-related tasks.” Administrative Transcript (hereinafter “Tr.”) 372. Dr. Harrington opined that McCormick: (1) needed to recline or lie down more often than would by permitted by the breaks typically given during a normal workday; (2) could sit and could stand/walk for 30 minutes at a time; (3) could sit and could stand/walk for a total of two hours each in an eight-hour workday; (4) needed a job that permitted shifting positions at will from sitting, standing, or walking; (5) needed to take hourly unscheduled breaks of unknown duration; (6) could frequently lift and carry less than 10 pounds; (7) could never lift and carry any more than that; (8) had unspecified limitations on his capacity for repetitive reaching, handling, or fingering due to wrist arthritis; and (9) was likely to be absent from work more than four times a month due to his impairments or treatment for them.

         In March of 2014, McCormick's primary care physician, Dr. Lora McClintock, completed an RFC Questionnaire on McCormick. In it, she identified diagnoses of severe degenerative disc disease of the lumbosacral spine, a condition affecting both shoulders, and a condition affecting McCormick's left hip.[6] She also identified the following symptoms: low back pain, bilateral shoulder pain and limited range of motion, paresthesias, [7] and chronic pain. Dr. McClintock opined that McCormick: (1) needed to recline or lie down more often than would by permitted by the breaks typically given during a normal workday; (2) could walk several city blocks without rest or significant pain; (3) could sit and could stand/walk for 30 minutes at a time; (4) could sit and could stand/walk for a total of four hours each in an eight-hour workday; (5) needed a job that permitted shifting positions at will from sitting, standing, or walking; (6) needed to take unscheduled breaks of unpredictable duration at unpredictable intervals; (7) could occasionally lift and carry up to 10 pounds; (8) could never lift and carry any more than that; (9) could grasp, turn, and twist objects with each hand for 25 percent of an eight-hour workday; (10) could perform fine manipulation with the fingers of each hand for 25 percent of an eight-hour workday; (11) could never reach with his arms; and (12) was likely to be absent from work three or four times a month due to his impairments or treatment for them.

         The record also includes a Mental Capacity Assessment completed by Jan Manwaring, a licensed clinical social worker. In it, she considered 23 specific abilities and determined that McCormick had: (1) unknown limitations in two abilities; (2) moderate limitations in six abilities; (3) marked limitations in nine abilities; and (4) extreme limitations in six abilities.

         After McCormick's applications were denied at the initial level of review, he received a hearing before an Administrative Law Judge (“ALJ”). At the hearing, the ALJ took telephonic testimony from Dr. Arthur Brovender, a board certified orthopedic surgeon who had neither treated nor examined McCormick, but had reviewed McCormick's medical records. After describing the medical records he reviewed, Dr. Brovender stated that McCormick had been diagnosed with degenerative disc disease of the lumbosacral spine, grade one spondylosis, and “osteoarthritis of the set.”[8] Tr. 46. He then testified that McCormick did not have a spine disorder that was, under the relevant regulatory criteria, sufficiently severe to qualify as a per se disabling impairment. Dr. Brovender did not assess the severity of McCormick's osteoarthritis nor did he acknowledge McCormick's diagnosis of peripheral neuropathy.

         The ALJ's examination of Dr. Brovender continued in the following manner:

Q Based upon your experience, education, and review of this medical record, do you have an opinion as to whether there would be functional limitations that would exist based upon these conditions that you've identified?
A Yes, he has no limitations for sitting, standing, and walking. His limitations would be postural; occasional bending, stooping, squatting, and kneeling, stairs and ramps occasional, ropes, ladders, and scaffolds occasional. I would not have him crawl. Occasional unprotected heights, he could lift 10 pounds continuously, 20 pounds frequently, and 50 pounds occasionally.
Q Any other limitations?
A That's all I can think of, your honor.

Tr. 46-47.

         When McCormick's attorney asked Dr. Brovender about the discrepancy between the RFC he gave McCormick and the RFCs assessed by Drs. Harrington and McClintock, Dr. Brovender explained that McCormick's “physical examinations show that his motor neurological and sensory examinations were normal, his reflexes were normal, he had no sensory changes, he had no muscle weakness.” Tr. 47. In response to another question from McCormick's attorney, Dr. Brovender testified that McCormick's ability to use his upper extremities was unlimited.

         After taking testimony from Dr. Brovender, the ALJ took testimony from a vocational expert (“VE”). He began by asking the VE about a hypothetical individual with the following limitations:

[H]e can lift 50 pounds occasionally, 20 pounds frequently, no limitations with standing, sitting, walking, or manipulation. He should not crawl but all the rest of the posturals are at occasional and he occasionally [can] be exposed to unprotected heights.

Tr. 68-69. According to the VE, a person with the foregoing limitations could do carpentry, as that job is generally performed, i.e., at the medium exertional level. The VE also testified that a person with those limitations could do the job of cleaner, kitchen helper, and packer, all of which are unskilled jobs at the medium exertional level. The applicable regulations provide that “[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c) & 416.967(c). In addition, “[a] full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequently lifting or carrying objects weighing up to 20 pounds.” Social Security Ruling 83-10, 1983 WL 31251, at *6 (S.S.A. 1983).

         In response to a hypothetical question that incorporated Dr. Harrington's limitations, the VE testified there are no jobs that a person with that RFC would be able to perform. In response to a hypothetical question that incorporated Dr. McClintock's limitations, the VE testified that, at most, a person with that RFC could perform the job of surveillance system monitor, but that “if this individual is going to require unscheduled breaks [of] unknown duration or frequency, that could be problematic in terms of performing any work, ” Tr. 71.

         The VE's testimony concluded with a question from McCormick's counsel:

Q In your opinion, what are the maximum number of days per month an[] individual can be absent on a continu[ing] basis before it would be problematic?
A For unskilled work, one day per month, month after month on a continuous basis or more would not be tolerated.

Tr. 72.

         After the hearing, the ALJ issued a decision in which he gave little weight to Dr. Harrington's opinion, little weight to Dr. McClintock's opinion, and great weight to Dr. Brovender's opinion. The ALJ's decision also ...


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