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Baillargeon v. Berryhill

United States District Court, D. New Hampshire

January 15, 2018

Lucas Michael Baillargeon
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          Alexandra M. Jackson, Esq. Karen B. Fitzmaurice, Esq. Penelope E. Gronbeck, Esq.


          Joseph N. Laplante United States District Judge

         Lucas Baillargeon moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) 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.

         I. Scope of Review

          The scope of judicial review of the Acting Commissioner's decision is as follows:

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 standard of review for decisions on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). Substantial evidence, in turn, is evidence that “a reasonable mind . . . could accept . . . as adequate to support [a] conclusion.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (quoting Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)). 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)).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement[1] is part of the court's record and is summarized here, not repeated in full.

         Baillargeon applied for SSI and DIB in May of 2013, claiming that he became disabled in September of 2012 due to diabetes, weight, joint pain, neuropathy, [2] knees, and a crushed disc. On the day on which he claims to have become disabled, i.e., his alleged onset date (“AOD”), Baillargeon was 46 years old.

         In June of 2012, approximately three months before his AOD, Baillargeon's primary-care physician, Dr. Brian Sponseller, referred him to an occupational therapist, Lynn Chauvette, for a Functional Capacity Evaluation. According to Ms. Chauvette, Baillargeon could perform each of the following activities occasionally (i.e., up to one third of the day): standing, walking, sitting, lifting 10 pounds, carrying 10 pounds, pushing 10 pounds, pulling 10 pounds, climbing, stooping, reaching forward, handling, working above his shoulders, pinching, and writing. Ms. Chauvette also opined that Baillargeon could never crouch, crawl, or kneel.

         In an October 2012 letter, Dr. Sponseller wrote: “I have reviewed a functional capacity evaluation [by Ms. Chauvette] and I concur with its findings concerning [Baillargeon's] sitting, standing and manipulative limitations.” Administrative Transcript (hereinafter “Tr.”) 566.

         In July of 2014, Dr. Sponseller completed a Medical Source Statement of Ability to do Work-Related Activities (Physical). In it, he opined that Baillargeon could frequently lift ten pounds, stand and/or walk for at least two hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. He further opined that Baillargeon could occasionally climb ramps/stairs/ladders/ropes/scaffolds, kneel, and crouch, but could never balance, crawl, or stoop. Finally, he opined that Baillargeon had no manipulative, visual/communicative, or environmental limitations.

         The SSA denied Baillargeon's applications. In November of 2014, he received a hearing before an Administrative Law Judge (“ALJ”). The ALJ ruled that Baillargeon was not disabled.

         In her decision, the ALJ determined that Baillargeon had four severe impairments, [3] but also found that none of them, either alone or in combination with any other impairment(s), met or medically equaled the severity of any of the impairments on the SSA's list of impairments that are per se disabling. Next, the ALJ assessed Baillargeon's residual functional capacity (“RFC”), [4] and described it this way:

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he could lift and carry ten pounds; stand or walk for two hours and sit for six hours in an eight-hour day; [could] never climb ladders, ropes, or scaffold[s] and [needed to] avoid balancing on narrowing or elevated surfaces; [needed to] avoid crawling or stooping; [could] occasionally climb ramps or stairs, kneel, or crouch; and [could] rarely stoop with rarely defined as less than five percent of the workday.

Tr. 159. Based upon that RFC, the ALJ determined that Baillargeon could not perform his past work, all of which was performed at the medium exertional level.[5] But, in reliance upon the testimony of a vocational expert (“VE”), the ALJ determined that Baillargeon retained the RFC to perform three sedentary jobs.[6]

         The SSA's Appeals Council (“AC”) vacated the ALJ's decision and remanded the matter for a new decision. It did so because the ALJ made two conflicting findings about the same postural activity when she determined that claimant: (1) could not stoop at all; but (2) could stoop up to five percent of the workday. In its remand order, the AC directed the ALJ to: (1) “[o]btain additional evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513 and 416.912-913), ” Tr. 175; (2) further consider claimant's RFC “and provide [a] rationale with specific references to evidence of record in support of the assessed limitations, ” id.; and (3) obtain evidence from a VE, if necessary.

         On remand, claimant received a second hearing before the same ALJ who had conducted his previous hearing and who had issued the decision that resulted in the AC's remand. At that hearing, the ALJ took testimony from Dr. John Kwock.[7] Following his review of claimant's medical records, Dr. Kwock opined that none of the impairments he considered met or medically equaled the severity of any of the impairments on the SSA's list of impairments that are per se disabling.[8] Then he assessed claimant's RFC and said, among other things:

[H]e still remains capable of doing light work. That is to say that he can lift and carry up to ten pounds on a frequent basis, between 11 and 20 pounds on an occasional basis, and anything above 21 pounds on a never basis.
. . . [H]e probably can still sit for four hours out of the eight . . . stand for four hours out of the eight, and . . . walk for four hours out of the eight.

Tr. 89-90.[9] Subsequently, Dr. Kwock clarified his opinion on claimant's capacity for standing and walking. He stated that he was not opining that claimant “could stand for four hours out of an eight-hour day plus walk four hours out of an eight-hour day, ” Tr. 105, but rather, that claimant was capable of a total of four hours of standing and/or walking in an eight-hour day, see id.

         After the ALJ heard from Dr. Kwock, she took testimony from a VE. First, she asked a hypothetical question that posited a person the ALJ described this way:

[T]he individual can occasionally lift and carry up to 20 pounds and frequently lift and carry up to 10 pounds. I want you to assume the individual could . . . stand and/or walk for up to four hours [in] an eight-hour day and sit for four hours out of an eight-hour day, all with normal breaks. I want you to assume that the individual would not be able to climb ladders, ropes, or scaffolds, would not be able to crouch or crawl. Other postural activities could be performed on an occasional basis.
The individual would have to avoid exposure to hazards, such as unprotected heights, dangerous moving machinery, and balancing on narrow surfaces, on wet or slippery surfaces, or uneven surfaces. The individual could drive while on the job on an occasional basis.

Tr. 111-12.

         According to the VE, the individual the ALJ described could not do claimant's past work as a delivery-truck driver, concrete-mixing-truck driver, fuel-oil delivery driver, heavy-equipment operator, dump-truck driver, or tractor-trailer truck driver, but could perform his past work as a security guard. The VE further testified that a person with the specified RFC would be able to perform the light-duty jobs of gate guard, merchandise marker, and cashier. After indicating the number of each of those jobs that exist in the national economy, the VE further explained: “I'm going to reduce the number of cashier's nationally by 50 percent to allow for that sit/stand option based on work assignment; convenience store cashiers, for example, may not be able to, but a retail clerk could certainly use a stool.” Tr. 112.[10] The VE did not, however, adjust the number of merchandise-marker jobs in the national economy to account for a sit/stand option. Moreover, the VE did not adjust either the number of cashier jobs or the number of merchandise-marker jobs to account for the shortfall between claimant's capacities for walking/standing and sitting and the six hours of walking/standing or sitting that are generally required to perform light work.

         The ALJ asked a second question in which the hypothetical individual was limited to uncomplicated tasks. The VE testified that the additional limitation would eliminate the security-guard and gate-guard jobs, but would allow the individual to perform the merchandise-marker and cashier jobs, along with the job of storage-facility rental clerk.

         After the VE identified jobs that claimant could still perform, the following exchange took place between the ALJ and the VE:

Q And since the hypothetical limited the standing and walking to four hours out of an eight-hour day, I'm assuming that that's a deviation from the DOT [i.e., the Dictionary of ...

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