United States District Court, D. New Hampshire
Alexandra M. Jackson, Esq. Karen B. Fitzmaurice, Esq.
Penelope E. Gronbeck, Esq.
N. Laplante United States District Judge
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.
Scope of Review
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)).
parties have submitted a Joint Statement of Material Facts.
That statement is part of the court's record and is
summarized here, not repeated in full.
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,  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.
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.
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.”)
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.
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
decision, the ALJ determined that Baillargeon had four severe
impairments,  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”),  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. But, in reliance
upon the testimony of a vocational expert (“VE”),
the ALJ determined that Baillargeon retained the RFC to
perform three sedentary jobs.
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.
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. 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. 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. 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.
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.
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. 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.
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.
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