United States District Court, D. New Hampshire
McAuliffe United States District Judge.
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
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)).
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)).
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.
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. 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.
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.
Garneau filed his application for DIB, he was referred to Dr.
Elizabeth Hess, for a consultative psychological
examination. 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
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
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.
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. 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
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.
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”). 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.; (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.
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.
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. 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.
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 ...