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Garneau v. Berryhill

United States District Court, D. New Hampshire

October 10, 2017

James Garneau
Nancy A. Berryhill, Acting Commissioner, Social Security Administration


          Steven McAuliffe United States District Judge.

         Pursuant to 42 U.S.C. § 405(g), James Garneau moves to reverse the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits (“DIB”) 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)).

         With regard to 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.

         Garneau has worked as a psychiatric aide, snowmaker, rewinder, bakery manager, sales and delivery person, and truck driver. On January 10, 2013, he injured his back at work, while lifting a dryer. Shortly thereafter, he was given a diagnosis of back pain with radiculopathy.[1] His medical records include additional diagnoses of: degeneration of the lumbar intervertebral disc; mechanical low back pain with significant nonphysiologic findings; disc derangement and lumbar strain with disc protrusion; a cognitive disorder; an adjustment disorder; and a possible learning disability.

         Garneau began receiving workers' compensation benefits shortly after his injury. He applied for DIB in September of 2013. He claimed that he was disabled as a result of two medical conditions: (1) degenerative disc disease and disc protrusion; and (2) an extra vertebrae in his back.

         After Garneau filed his application for DIB, he was referred to Dr. Elizabeth Hess, for a consultative psychological examination.[2] After she examined Garneau, Dr. Hess prepared a Comprehensive Psychological Profile. In it, she gave diagnoses of: (1) “[c]ognitive disorder, not otherwise specified secondary to chronic pain with diminished concentration, ” Administrative Transcript (hereinafter “Tr.”) 309; (2) “[a]djustment disorder with mixed anxiety and depression, ” id.; and (3) “[p]ossible learning disability, not otherwise specified, ” id. In addition, Dr. Hess gave the following opinions on Garneau's then-current level of functioning:

ACTIVITIES OF DAILY LIVING: This individual needs assistance with shopping, cooking, paying bills, maintaining his residence, grooming, and hygiene due primarily to pain and difficulty with bending or sustaining physical activity for any degree of time; however, he also has difficulty with concentrating and needs his girlfriend to help him to remember appointments, make financial decisions, etc.
SOCIAL FUNCTIONING: This individual interacts appropriately and communicates effectively with others. He does not see others as much as he used to due to physical limitations. He does state that he becomes irritable at times due to his pain.
UNDERSTANDING AND REMEMBERING INSTRUCTIONS: This individual is capable of understanding and remembering basic instructions with the exception of occasional latency due to poor concentration. He may have some difficulty understanding detailed instructions and will have difficulty in remembering them due to poor concentration and possibly due to cognitive limitations.
CONCENTRATION AND TASK COMPLETION: This individual can maintain attention and concentration for about one-half hour. His persistence is limited primarily by physical conditions, and also by limited concentration. His pace will be very slow. He will be slow in remembering what he is to do and keeping track of where he is in a task.
REACTION TO STRESS AND ADAPATION TO WORK OR WORK-LIKE SETTINGS: This individual is capable of making simple decisions. He is not capable of maintaining regular attendance or schedule due to physical concerns primarily. He is able to interact appropriately with supervisors and others. He does become frustrated and irritable when he is not able to do things.

         Tr. 308-09.

         The record also includes an assessment of Garneau's mental condition by a non-examining consulting psychologist, Dr. Lewis Lester. After identifying two mental impairments, mood disorders and anxiety disorders, Dr. Lester conducted a psychiatric review technique (“PRT”) assessment based upon Garneau's medical records.[3] Dr. Lester determined that Garneau had no restrictions on his activities of daily living; had mild difficulties in maintaining social functioning; had mild difficulties in maintaining concentration, persistence or pace; and had no repeated episodes of decompensation, each of extended duration. Then, Dr. Lester gave the following explanation for his PRT assessment:

Claimant does not allege any mental impairments, [medical evidence of record] does not reflect any history of mental health diagnosis, treatment, or psychiatric medication. When claimant was sent to a [consultative examiner] in an effort to establish a “Chronic Pain Syndrome”, his self-report of anxiety and depression garnered a [consultative examiner] diagnosis of Adjustment Disorder with mixed anxiety and depression. These self-reported symptoms of Anxiety [disorder] and Depressive [disorder] barely rise above the level of what are ordinary and expected reactions to his physical problems, pain and sequelae; [consultative examiner] diagnosis of Cognitive [disorder] is not supported by any evidence. Associated mental limitations are mild & non-severe by [Social Security Administration] standards.

Tr. 87.[4]

         The record in this case includes approximately 40 documents authored by six different medical professionals, each of which expresses opinions on Garneau's physical residual functional capacity (“RRC”).[5] Those documents include, but are not limited to: (1) a summary of a functional capacity evaluation performed by an occupational therapist at Androscoggin Valley Hospital; (2) a report on an independent medical examination performed by Dr. Daniel O'Neill, for Sedgwick Claims Management Services, Inc.;[6] (3) a Lumbar Spine Medical Source Statement (“Spine Statement”) completed by Garneau's primary care provider, Nurse Amanda Dustin; and (4) a Spine Statement completed by a treating orthopedist, Dr. Thomas Rock.

         Dr. Rock saw Garneau four times and examined him three times. In May of 2015, after Garneau's most recent visit with him, Dr. Rock completed a Spine Statement in which he identified diagnoses of degenerative disc disease and multilevel lumbar disc protrusion. He also described the clinical findings supporting those diagnoses, Garneau's symptoms, and ten positive objective signs of Garneau's condition. With respect to functional limitations, Dr. Rock opined that Garneau: (1) could sit for five minutes at a time before needing to get up; (2) could not stand; (3) could sit and stand/walk for a total of less than two hours in an eight-hour workday; (4) needed a job that permits shifting positions at will from sitting, standing, or walking; (5) needed to walk around during an eight-hour workday; (6) needed to take unscheduled breaks; (7) could lift less than 10 pounds, but only rarely; (8) could rarely twist; (9) was likely to be “off task” for 20 percent of a workday; (10) was incapable of even “low stress” work; and (11) was likely to be absent from work more than four days per month as a result of his impairment or treatment for it.

         Dr. Rock did not examine Garneau in connection with preparing his Spine Statement, but in an office note he wrote approximately six months earlier, Dr. Rock documented his musculoskeletal examination of Garneau:

On examination he is alert and oriented and in no distress. He has stiffness with flexion and extension and rotation of the lumbar spine. There is bilateral lumbar paravertebral muscle spasm with tenderness. He does have stiffness in his walking and lower extremity neurologic is intact but he does have radiation of pain and some numbness and tingling in the lower left leg. Straight leg raising is positive on the left. He has maintained strength in the lower leg with ability to dorsiflex and plantarflex the left foot. He has good circulation and sensation without lymphedema.

Tr. 420.[7] In a New Hampshire Workers' Compensation Medical Form (“Comp Form”) that Dr. Rock filled out on the same day he wrote the office note quoted above, he stated that Garneau had no work capacity and had reached maximum medical improvement. He restated those opinions in a Comp Form he filled out on the same day he completed his Spine Statement in May of 2015.

         After Garneau's claim was denied at the initial level, he received a hearing before an Administrative Law Judge (“ALJ”). At the hearing, the ALJ took testimony from a vocational expert (“VE”), to whom she posed a series of hypothetical questions. The ALJ framed her second hypothetical this way:

I want you to assume . . . a younger individual with a 12th grade education, and past work as described. For the purposes of this hypothetical, I want you to assume that the individual can perform sedentary work as defined by the [Dictionary of Occupational Titles]. But after one hour of sitting the individual would need to stand without leaving the work station and stretch for two to three minutes. I want you to assume that the individual would have to avoid climbing ladders, ropes, and scaffolds and crouching would be limited to a rare basis, which I am defining as less than or equal to 10 percent of the work day. I want you to assume that other postural activities could be performed on an occasional basis. I want you to assume that reaching would be limited to frequently as opposed to constantly. In addition, I want you to assume that lifting objects from the floor would be limited to a rare ...

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